Soren Gruttner v Umtali Nominees Pty Ltd T/A Ratten and Slater

[2014] FWC 2493

[2014] FWC 2493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Soren Gruttner
v
Umtali Nominees Pty Ltd T/A Ratten and Slater
(U2013/13988)

DEPUTY PRESIDENT MCCARTHY PERTH, 16 APRIL 2014

Application for relief from unfair dismissal.

[1] Mr Soren Gruttner (the Applicant) lodged an application for unfair dismissal remedy (the Application) on 27 September 2013. The Application states that the Applicant was employed by Umtali Nominees Pty Ltd T/A Ratten and Slater (the Respondent) on 9 January 2013 and he was notified of his dismissal on 13 September 2013. It is safe to conclude that the date the dismissal took effect was 13 September 2013, although that part of the Application was left blank.

[2] The Applicant stated in the Application that the reason for his dismissal given by the Respondent was “Insubordination, misconduct”. The Application also stated that the grounds for the dismissal being unfair were “Three employment warnings were given at once, two of them directly relating to one incident, all reasons were made up”.

[3] The Respondent lodged a response (the Employer’s Response) to the Application on 22 October 2013. It states that the employment of the Applicant commenced on 7 January 2013 and the dismissal took effect on 13 September 2013. The reason for dismissal is stated as being “misconduct” and the response to the Applicant’s contentions are that “Soren [the Applicant] was terminated for 3 counts of misconduct and as per his employment contract is grounds for instant dismissal.”

[4] There were various attachments to the Employer’s Response and a more expansive outline of the reasons for the dismissal and responses to the Applicant’s contentions. The Respondent also asserted that the Application was frivolous and had no reasonable prospect of success.

[5] A Conciliation Conference was listed before a Conciliator on 12 November 2013. The Applicant did not attend the Conference. The Conciliator emailed the Applicant requesting a response from him as to why he did not attend the Conference. The Applicant responded on the same day by email in the following terms:

“I am sorry to not have been able to participate in the conference, but I haven’t been able to set up home here. We have moved to Germany (I don’t know which number you phoned, but the WA number in Albany is disused since 6/November and for the German number I provided, I never received a verification). We are experiencing difficulties in setting up home here, which is 230 km away from my parents place. Right now, we stay in a vacation flat and try to rent a property (not as easy as in Australia). Right now, I can’t tell you when I will have a landline (so far, we only have cell phones), so everything is quite chaotic.

I apologize for the inconvenience and the trouble I have caused, but it isn’t very easy moving from country to country and a certain amount of chaos is a direct result.

I will let you know asap once I have a workable phone number.”

[6] On 9 January 2014 a further email was sent to the Applicant by the Fair Work Commission (FWC). It requested that the Applicant provide a telephone number so a Conciliation Conference could take place. The Applicant responded to that email on 11 January 2014 in the following terms:

“sorry for my late reply to your e-mail.

I bought a house here and the internet and phone connection is scheduled to be installed on 13 of January, so on Monday, somewhere in the afternoon. However, I don’t think it will be usable until a day or so later, since I can’t guarantee that there won’t be anby problems, which need further repair or different equipment.

Further will be the time difference between AUS and Germany complicate matters, since an afternon call in AUS will be received in GER in the early morning hours.

I would like to ask you for a little bit more patience and I will let you know ASAP once the phone connection is working, which should be on Tuesday AUS time.

Thank you for your understanding”

[7] On 13 January 2014 the FWC responded requesting a telephone number to be provided by 15 January 2014. The Applicant responded on 14 January 2014 in the following terms:

“I am pleased to inform you, that my phone line is working and that I will be able to take a call on it as scheduled.

My phone number is: [phone]

Could you please let me know at which time I can expect the call?”

[8] A Conciliation Conference was listed for 11 February 2014 however the Respondent advised that the appropriate person to participate was not available on that date. The Conference was cancelled and the matter allocated to me on 29 January 2014.

[9] It appeared to me that the Respondent may be a small business employer. I therefore sent a Small Business Checklist to the Respondent. It transpires that the Respondent is not a Small Business as defined by the Fair Work Act 2009. The Respondent is a business based in Gnowangerup, a small regional centre in the wheat belt of Western Australia. The business appears to be the Western Australian Agency for John Deere farm equipment and machinery.

[10] A copy of the letter to the Respondent was also sent to the email address of the Applicant. The Applicant emailed my Chambers on 5 February 2014, apparently thinking that he would be not be given the opportunity to respond to any assertions the Respondent may make in any documents that might be provided to the FWC. The Applicant stated in his email the following:

“I have not been contacted any further in order to give my point of view.

In my case, Umtali has given statements of very questionable nature, relating to incidents that occurred months before my dismissal and

therefor they didn’t have any relation to it.


Further, the way I was dismissed (handing me three employment warnings in one go with rather no vague explanations) is as far as I

understand not the proper way to do that either.

Umtali has displayed a very loose own interpretation Australian law in several incidents.

I had been made to pay costs, associated with my visa, which have to be paid by the employer and are not recoverable and they refused

to pay my airfare back.

Both matters have been dealed with by the department of Immigration to Umtali’s disadvantage.

I would like to have the chance, to give MY point of view, since I know, that the once carried by Umtali, are very contradictionairy to the true

circumstances of my dismissal.”

[11] The Respondent did provide a response to my letter on 7 February 2014 which included a completed Small Business Code Checklist (the SBCC). The SBCC stated that more than 15 employees were employed at the time of the dismissal of the Applicant. The SBCC also stated that the Applicant threatened Mr Travis Hawkins, the Dealer Principal and was dismissed because “Mr Gruttner [the Applicant] verbally abused myself as Dealer Principal, his 2 x supervisors and customers as well ...”.

[12] The SBCC also attached statements from other employees about the Applicant’s conduct and performance and warnings given to him. Those statements and warnings had previously been lodged with the Employer’s Response.

[13] As it appeared that facts were disputed I listed the matter for a Telephone Conference on 20 February 2014. The Applicant could not participate in the Conference due to phone linking difficulties. I find no fault on the part of the Applicant for this problem and his non-attendance. The Applicant later rang and then emailed my Chambers later that day and suggested that he give his statement by email.

[14] My Chambers emailed the Applicant and the Respondent on 28 February 2014 with Directions to them regarding any documentation they may wish to lodge or rely upon. The email also stated that the matter would be dealt with “on the papers”. The Applicant emailed on 28 March 2014 to the following effect:

“could I please get a bit more information what this request means?

I thought I could state my case to Mr McCarthy first.

My grievances with Ratten&Slater are: I was given three employement warnings in “one go” on bogus claims.

I have worked for nine months for them and was given those “warnings”, after I told my supervisor that I was not likely to stay in Australia and wished to get to turms for my departure within the next 6 months.

My termination pay was completely withheld, so were my tools (worth ~$ 6500), my caravan and my utility trailer.

Ratten and Slater has violated several Australian immigrant work laws and has been dealt with for that.

The statements from former work mates are all undated in terms of the incidents they describe.

All of those incidents have occurred at the very beginning of my employment and of course, there is the part which those individuals don’t say in them.


Mr Gahzeb can’t explain,why I wasn’t very fond of him. That he took my tool without asking or even letting me know, causing me to drive to clients, missing tools to do the job is something, he doesn’t find worth mentioning.


Dillon does not mention, that he acted very insubordinate towards e,causing me to request not to have him send out with me again, which was done, so I never drove out with him again.

I was payed $33/hr and I was a very successful mechanic for them. However, I didn’t like the way Ratten and Slater conducted business. I personally witnessed, how a $350 core part was not credited to the customer for instance.

I found this behaviour rather immoral.

Ratten and Slater depicts me as incompetent and all that, while they employed me until I told them that I would like to leave and payed me rather well.

Doesn’t really fit the picture, they try to draw here.

I want my termination pay, which I am entitled to by Australian labour laws.”

[15] The Respondent emailed my Chambers on 8 April 2014 to the following effect:

“Umtali Nominee’s Pty Ltd will rely on all information already sent through to both parties as they already address all issues raised and support our unchanged position of dismissal. I would also like to add that a majority of what has been raised below is irrelevant to the unfair dismissal case which has been lodged.

I trust the information already supplied is sufficient to enable this case to move forward and be resolved and finalised.”

Consideration

[16] Clearly there have been difficulties encountered in dealing with this Application initially due to difficulties encountered in contacting the Applicant and in him responding. There were other difficulties due to the Applicant having moved to Germany. It seemed to me that the only practical way of dealing with the matter was to decide from the papers and documents provided. I indicated that to the parties in my email of 28 February 2014 and indeed it followed a suggestion from the Applicant in his email of 20 February 2014. There was no objection to dealing with the matter on the papers.

[17] The problem with dealing with the Application on the papers is that there were clearly disputed facts. Furthermore, whilst the Respondent provided a declaration in the form of the SBCC there were no similar declarations by the Applicant. Notwithstanding that I will treat the Applicant’s emails and communications as though they were declarations and similarly I will treat the Respondent’s documents in an identical manner.

[18] Here the conduct of the Applicant was asserted to have been abusive and he had a poor history of behaviours and language towards staff. Whilst the Applicant disputes this conduct and behaviours, the weight of the documentary evidence supports the contentions of the Respondent. There are statements by three different employees attesting to the conduct and through the written warnings to the Applicant. I hasten to add that the written warnings were all provided to the Applicant at the same time being the day before his dismissal. It was clear from the documentation that the Respondent was not satisfied with the Applicant’s performance. The Applicant provided no detailed response to the statements other than a flat refuting of the accounts provided in them of the events.

[19] It appears to me to be more probable than not that the Respondent’s account of events is the more accurate one. I therefore find that there was a valid reason for dismissal.

[20] It is clear from the Applicant’s Application that he was given the reason for his dismissal but I infer from the Applicant’s complaints about the warnings that he is asserting that he was not given the opportunity to respond. This however does not answer the assertions by the Respondent that the Applicant had been given verbal warnings by his direct supervisor and the branch co-ordinator on a number of occasions before the written warnings of 12 September 2013. Thus, again on the probabilities from the documentation provided it does appear to me that the Applicant was given reasons for his dismissal and had been advised about his conduct and his performance on previous occasions and I find accordingly.

[21] There is no evidence of any support person not being allowed to assist the Applicant in any discussions relating to his dismissal.

[22] The Respondent claims to have warned the Applicant about his conduct and performance by his direct supervisor and branch co-ordinator. I find that the Applicant was warned.

[23] The Respondent’s enterprise is relatively small and it appears there is no dedicated human resource expertise, both of which impacted negatively on the procedures followed.

[24] Taking all these matters into account I find that the dismissal was not harsh, unjust, or unreasonable, and therefore I find that the dismissal was not unfair.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 28 March 2014

Respondent, 8 April 2014

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