Stanley Moores v Kelto Pty Ltd T/A Mod Com Campers
[2014] FWC 4611
•14 JULY 2014
[2014] FWC 4611 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stanley Moores
v
Kelto Pty Ltd T/A Mod Com Campers
(U2013/17671)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 14 JULY 2014 |
Application for relief from unfair dismissal; summary dismissal; whether employer complied with Small Business Fair Dismissal Code; application of the Small Business Fair Dismissal Code in cases of summary dismissal; finding that employer complied with the code; dismissal was fair; application dismissed.
Introduction
[1] Stanley Moores (Applicant) began employment with Kelto Pty Ltd (Respondent) on or about 21 August 2004 1. His employment was as a boiler maker/welder and he was employed on a casual basis but with regular and consistent hours of work each week and with a reasonable expectation of receiving continued work2.
[2] On 13 December 2013, the Applicant was dismissed from his employment with the Respondent for the reason that he had been smoking in the workplace contrary to the Respondent's policy and state legislation. The Applicant had previously been warned about smoking in the workplace and the consequences for his employment of a continuation thereof 3. On 21 December 2013 the Applicant made an application for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (Act).
[3] At the commencement of the proceedings the following matters were agreed 4:
● The Applicant was relevantly an employee and the Respondent an employer for the purposes of part 3 – 2 of the Act;
● the Respondent is a small business employer within the meaning of s. 23 of the Act;
● the Small Business Fair Dismissal Code, a legislative instrument made pursuant to s. 388 of the Act applies;
● the Applicant began employment with the Respondent on 21 August 2004 as a boilermaker/welder and was employed on a casual basis;
● the Applicant's employment was summarily terminated on 13 December 2013;
● the Applicant had received a written warning from the Respondent on 29 June 2011 that he was to cease smoking in the workshop;
● the Applicant received a written warning from the Respondent on 20 January 2012 about smoking in the workplace which stated that it was a first and final warning;
● the Applicant received a letter dated 24 October 2012 from the Respondent asking whether he had been smoking in the workplace.
[4] To the extent that the matters listed above concern factual matters, I am satisfied of the existence of those facts and make the corresponding factual findings. To the extent that the matters concern conclusions of law, I make those conclusions.
Initial matters for determination
[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied, relevantly, that the dismissal was not consistent with the Small Business Fair Dismissal Code 5. Section 388 (2) provides that a person's dismissal was consistent with the Small Business Fair Dismissal Code if:
a. immediately before the time of the dismissal or at the time the person was given notice of the dismissal (which ever happened first), the person's employer was a small business employer; and
b. the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[6] There are a number of initial matters set out in s. 396 of the Act, which must be determined by me before the merits of an application are considered. Among these initial matters is the issue whether the dismissal was consistent with the Small Business Fair Dismissal Code 6. As is apparent from the matters that were agreed at the commencement of these proceedings, immediately before the time of the Applicant's dismissal the Respondent was a small business employer. As I have earlier indicated, I am satisfied that the Respondent was, immediately before the time it dismissed the Applicant, a small business employer within the meaning of s. 23 of the Act. That leaves for determination the question whether the Respondent complied with the Small Business Fair Dismissal Code in relation to the Applicant's dismissal.
Small business fair dismissal code
[7] The relevant and applicable aspects of the Small Business Fair dismissal Code are set out below:
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
. . .
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
Proper application of the small business fair dismissal code
[8] The application of the Small Business Fair Dismissal Code, in so far as it relates to summary termination of employment is relatively straightforward. There will have been a fair dismissal of the Applicant by the Respondent if the Respondent believes, on reasonable grounds at the time of dismissal that the Applicant’s conduct was sufficiently serious to justify immediate dismissal.
[9] In considering whether the Respondent complied with the Small Business Fair Dismissal Code in relation to the Applicant's dismissal it is therefore necessary to determine first, whether the Respondent held the relevant belief at the time it dismissed the Applicant and secondly, whether that belief was based on reasonable grounds 7. In deciding whether the Respondent’s belief was based on reasonable grounds, it is not necessary to determine whether on the evidence there was a valid reason for the dismissal, rather the determination is to be made based on the knowledge available to the Respondent at the time it dismissed the Applicant and involves an assessment of the steps taken by the Respondent to investigate or gather information relevant to the decision to dismiss8.
Relevant factual context and findings
[10] Ms Phyllis Jones, the Secretary of the Respondent, gave evidence that on 13 December 2010 she attached a notice to the wall of the Respondent’s workshop in which the Applicant worked which concerned smoking in the workplace 9. This evidence was not disputed. The notice contained the text of sections 26R and 26ZJ of the Tobacco and Other Smoking Products Act 1998 (Qld)10 (TOAP Act). Section 26R of the TOAP Act prohibits smoking by a person in an enclosed place. There is no dispute that section 26R applied to the Respondent’s workshop in which it is said that the Applicant had smoked on 13 December 2013.
[11] The notice also contained the following:
This legislation strictly forbids any smoking in the workplace.
- All staff had been advised of this legislation on at least two prior occasions.
- ‘No Smoking’ signs have already been erected within the work premises.
- Be advised that this policy applies to employees, employers, visitors or customers.
- Any person seen in contravention of this law is to be advised immediately, preferably by the closest person.
- Any employee acting in contravention of this legislation will have his employment terminated. 11
[12] Ms Jones also gave evidence that large "no smoking" signs were attached to the walls throughout the Respondent’s premises 12. This evidence was not disputed.
[13] On 29 June 2011, the Applicant received a written warning titled "official warning" which provided that on that date, the Applicant "was officially warned that he was to cease smoking in the workplace. Failure to do so will result in termination of his employment by”, the Respondent 13. The Applicant received a further written warning titled "first and final warning 20/01/2012" on 20 January 2012. That warning provided that it "serves as your first and final warning regarding smoking in the workplace! You have been counseled (sic) by me on two other occasions and were made aware of the legislation regarding this! If caught again your employment will be terminated!"14
[14] Mr Brad Shields the workshop foreman employed by the Respondent gave evidence that after the lunch break on 13 December 2013, he could smell cigarette smoke coming from the fabrication shop, the area in which the Applicant worked 15. Mr Shields was then situated in the assembly area, his view of the Applicant was impeded and he walked through the roller door of the assembly area and observed that there was no person outside who was smoking16. Mr Shields then walked into the fabrication shop and once again he could smell cigarette smoke17. This evidence was not contested. Mr Shields then approached the Applicant and said the following to the Applicant:
As I see it you have two choices, to resign or be dismissed for continuing to be in breach of the rules. You need to resolve this. 18
[15] The Applicant accepts that Mr Shields said these words or words to this effect to him 19. Shortly thereafter there was a further conversation initiated by the Applicant with Mr Shields. The substance of that short discussion is in dispute20, but as nothing seems to turn on the content of that discussion and since neither party submitted that I should make any finding in relation to that discussion, it is not necessary for me to resolve the dispute.
[16] Mr Shields informed Mr Kerry Jones, the Director of the Respondent, of Mr Shields’ view that the Applicant had been smoking in the workshop, and thereafter prepared a typewritten note about his observations and his conversation with the Applicant 21. The text of that typewritten note is as follows:
13/12/13
Subject Stan Moores continuing to smoke in the workshop –
Earlier today I smelled cigarette smoke blowing into the Assembly shop from the Fabrication area,
with only Stan in that area I assumed it was him.
After lunch I again smelled cigarette smoke and I approached Stan, I said to him that "as I saw it he had two choices, to resign or be dismissed for continuing to be in breach of the rules, I then said he needed to resolve this!
I informed Kerry of what had transpired, and to expect an outcome.
Later Stan came to me to offer a deal, I said that it is not my job and to take it up with Kerry. 22
[17] Shortly thereafter, Mr Jones, in the company of Mr Shields, had a discussion with the Applicant. The version of events given by Mr Jones and the Applicant about the substance of that which occurred during the discussion is similar but not the same. For completeness I reproduce each version below. The Applicant's evidence was as follows:
At approximately 2.50pm Mr Kerry Jones approached me and called Mr Brad Shields to go into the smoko room. He then gave me a signed typed note stating Mr Brad Shield's (sic) account of what had happened earlier . . . I excuse myself to get my glasses. I came back and read the document. Mr Kerry Jones said to me words to the effect of "I have to ask you this, have you been smoking". I answered "yes". Instantly Mr Kerry Jones responded "your (sic) fired”. I said "fine, put it in writing". He responded that he would get it to me on Monday. There was no further discussion about the matter. I was not allowed to further elaborate. I was required to leave then. As I was leaving Mr Kerry Jones said after me "I will be studying the cameras" and I responded "fine" and left the workplace. 23
[18] In proceedings before me the Applicant denied that he had been smoking in the workshop on 13 December 2013. 24
Mr Jones’ version of events was as follows:
I spoke to Mr Moores and asked him to attend the lunchroom where Mr Shields and I could have a conversation with him. When all three of us were in the lunchroom I asked Mr Shields to repeat what he had told me. Mr Shields handed Mr Moore is a typed document. Mr Moore was then left the room and it was my understanding he was going to his workstation to get his reading glasses. He returned about two minutes later.
When Mr Moore returned to the lunchroom he put on his reading glasses and read the document Mr Shields had supplied to him.
I then spoke to Mr Moores:
I said: "Stan, were you smoking in the workplace, that is, were you smoking in the workshop at twelve Veronica Street today?"
Mr Moores said: "I am being convicted on smell"
I said: "Were you smoking in the workshop?"
Mr Moores said: "Yes to be honest I had a couple of smokes. I have been under a lot of stress."(my underlining)
I believe my question was quite explicit and there was no ambiguity.
Because of Mr Moores’ answer I believe I had no choice but to end Mr Moore’s (sic) employment at Mod Con Campers.
I said: "Stan your employment is terminated now".
Mr Moores stood and waited for about twenty seconds and then he spoke again
Mr Moores said: "Can I have a note to say that?"
I explained that we would ascertain what entitlements Mr Moore was entitled to and supply him with documentation he requested. Mr Moores then left the lunchroom. During this conversation at no time did Mr Moores indicate to me he believed he had been unfairly dismissed.
I then entered a record into Mr Shield’s (sic) work diary with the exact conversation between Mr Moores and myself. 25
[19] The diary note referred to in the extract above was also produced in evidence 26. It records that part of the conversation, which I have underlined in the extract above. The note is different from the underlined extract in two respects. First it records Mr Jones asking the Applicant whether he "had been smoking" and not whether he "had been smoking in the workshop". Secondly it does not record Mr Moores saying "I have been under a lot of stress".
[20] Although the evidence given by Mr Shields in his statement tended to corroborate Mr Moore's evidence about the conversation 27 he also gave oral evidence that the diary note prepared by Mr Jones reflected the conversation between Mr Jones and Mr Moores28. Mr Jones' evidence was that he entered a record into "Mr Shield’s (sic) work diary with the exact conversation between Mr Moores and myself"29.
[21] I prefer the record of events that is recorded in the diary note, which is a contemporaneous note, to that given in Mr Jones’ statement prepared many months after the event. A note made immediately after an event is likely to be more accurate than a recollection of events many months after those events occurred. The contemporaneous note is also more consistent with the Applicant's evidence and is said by Mr Jones to be exact. The Applicant's evidence was that he was asked whether he had "been smoking" 30. To the extent that the contemporaneous note is more detailed about the questions asked by Mr Jones of the Applicant than the evidence given by the Applicant, I prefer the record of events contained in the contemporaneous note.
[22] I therefore accept that the diary note prepared by Mr Jones accurately records the critical part of the conversation that occurred between he and Mr Moores on 13 December 2013.
[23] As is evident from the above Mr Moore's employment was terminated summarily on 13 December 2013.
[24] Mr Jones took photographs of garbage bins containing cigarette butts. This occurred after the Respondent had dismissed the Applicant from employment 31. I do not take the photographs into account in determining this initial matter.
[25] Evidence was also given that the Respondent's premises are monitored by a number of CCTV cameras 32. There was some dispute about the scope of the coverage of the various CCTV cameras and whether one or more of the cameras would likely have captured footage of the Applicant at his workstation. There is an insufficient evidentiary basis to enable me to resolve this dispute. For present purposes it is sufficient to observe that such CCTV camera footage as may have been available, was not reviewed by the Respondent before it dismissed the Applicant and was no longer available to be produced in evidence before me33.
Consideration
[26] The Applicant submitted that I should find that the Respondent did not have a belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal. This is because there was no admission by the Applicant that he had been smoking in the workshop. This, it was submitted, is borne out by the contemporaneous note prepared by Mr Jones and the evidence of the Applicant. I do not accept this submission. Whilst it is true that the only admission recorded in the contemporaneous note is in response to the question whether the Applicant had been smoking, that question should be understood in its proper context.
[27] First, at the commencement of the discussion on 13 December 2013 the Applicant was shown a note that had been prepared by Mr Shields and the Applicant read that note. On any fair reading, the note makes clear that Mr Shields believed that Mr Moores had been smoking in the workshop. The subject line of the note provides “Stan Moores continuing to smoke in the workshop”. That note sets the context for the discussion that followed. That the Applicant did not agree with the note, as submitted by the Applicant is beside the point. The Applicant's evidence was that at the commencement of the discussion he was given a “signed typed note stating Mr Brad Shield's account of what happened in the earlier" 34. In my view, on reading the note the Applicant well knew that the discussion in which he had been asked to participate was a discussion about Mr Shields’ allegation that the Applicant had been smoking in the workshop.
[28] Secondly, the ultimate question to which the Applicant gave an admission was preceded by an introductory question, namely whether the Applicant had been smoking in the workplace 35. The Applicant's answer to the second question must therefore be understood in the context of the discussion as a whole and in light of the first question that he was asked. Therefore when the Applicant responded “yes” to the question "were you smoking" Mr Jones will have understood, and his evidence is that he did understand, that answer to be responsive to the allegation that the Applicant had been smoking in the workshop earlier that day.
[29] So then Mr Jones had that which he believed to be an admission from the Applicant that he had been smoking in the workshop. Further, Mr Jones knew that the Applicant had been warned twice previously about smoking in the workplace and that the Applicant had been told twice previously that his employment would be terminated if he persisted in smoking in the workplace. Mr Jones' evidence was that he believed he had no choice but to end the Applicant's employment 36. In my view, Mr Jones and therefore the Respondent had a belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal.
[30] Turning next to the issue whether the belief held by the Respondent was based on reasonable grounds.
[31] The Applicant submitted that I should conclude that there were no reasonable grounds upon which the Respondent’s belief was based. The substance of that submission is as follows. The Applicant submitted that the CCTV footage of the area in which it is alleged that he was smoking was available but was not viewed either before the decision to dismiss was made or at any time afterward. He submitted that had the Respondent reviewed the CCTV footage it would have become apparent to the Respondent that the Applicant had not been smoking in the workshop at any time on 13 December 2013. Further, the Applicant submitted that Mr Shields did not observe the Applicant smoking in the workplace but based his suspicion on the smell of cigarette smoke, which could have emanated from cigarettes that were consumed outside. Furthermore, as the Applicant did not admit to smoking a cigarette in the workshop it was not reasonable for the Respondent to rely on Mr Shields’ suspicion, or to rely on the Applicants admission that he had been smoking, but not in the workplace, as a basis for deciding to terminate the employment of the Applicant summarily. Consequently the Respondent’s belief was not based on reasonable grounds.
[32] I do not accept this submission. The Respondent, through Mr Jones, approached the Applicant with an allegation that he had been smoking in the workshop. The allegation was made by Mr Shields. It was in writing and was handed to the Applicant. The Applicant read the allegation, which also contained the basis on which Mr Shields was making the allegation. The Applicant was then asked whether he had been smoking in the workshop. The Applicant gave a non-responsive answer. He was then asked whether he had been smoking, in answer to which he said “yes”.
[33] The Respondent then terminated the Applicant’s employment summarily. The Applicant made no protest. The Applicant did not seek to explain or qualify his answer, nor did he suggest that he thought he was being asked whether he had been smoking per se, not whether he had been smoking in the workshop. I do not accept the Applicant's evidence that he "was not allowed to further elaborate" 37. The Applicant does not provide any evidentiary foundation for the assertion made in his evidence beyond the assertion itself. He does not say, for example, that either Mr Jones or Mr Shields said or did something that prevented the Applicant from providing any elaboration. He does not say, for example, that he asked to be allowed to elaborate but was denied the opportunity.
[34] The decision to terminate the Applicant’s employment was based on the Applicant’s admission. In my view having regard to the context of the discussion as a whole and in light of the written allegation prepared by Mr Shields and handed to the Applicant before the discussion commenced, it was reasonable for the Respondent to treat the Applicant’s admission as an admission that he had been smoking in the workshop. In light of the admission it was not unreasonable, nor necessary, for the Respondent to review any CCTV camera footage. The steps taken by the Respondent to investigate the allegation were reasonable. No further steps were necessary in light of the admission. Taking all this into account and adding to it the clear Respondent policy and legislative prohibitions of smoking in an enclosed workplace, and the two previous warnings that put the Applicant on notice that his employment will be terminated if he persisted in smoking in the workplace, it seems to me clear that the Respondent’s belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal was based on reasonable grounds and I so find.
Conclusion
[35] That I might have found that there was an insufficient evidentiary basis for me to conclude that there was a valid reason or that the dismissal in the circumstances might otherwise have been harsh unjust or unreasonable is beside the point. When dealing with the question whether, in the case of a summary dismissal, the Respondent has complied with the Small Business Fair Dismissal Code in relation to the Applicant's dismissal, the answer turns on whether the Respondent held a belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal, and whether that belief was based on reasonable grounds. In this case for the reasons already given, the answer to both questions is yes.
[36] I am therefore satisfied that the Respondent complied with the Small Business Fair Dismissal Code in relation to the Applicant's summary dismissal and the Applicant’s dismissal was consistent with it. That the Respondent was not familiar with the terms of the Small Business Fair Dismissal Code when it dismissed the Applicant 38 does not affect this conclusion and is not a relevant consideration. Knowledge or awareness of the Small Business Fair Dismissal Code is not a condition precedent to compliance with it. What matters is the Respondent’s actual belief and its conduct assessed objectively. Pursuant to the Small Business Fair Dismissal Code it was fair for the Respondent to dismiss the Applicant without notice. It follows that the Applicant was not unfairly dismissed and no remedy is available to him under s. 390 of the Act.
[37] The application is dismissed. An order to that effect is issued separately in PR553032.
DEPUTY PRESIDENT
Appearances:
D. Whitehouse of Counsel for the Applicant
K. Jones for the Respondent
Hearing details:
Brisbane.
2014
16 May.
Final written submissions:
Applicant 6 June 2014, 27 June 2014 (submissions in reply)
Respondent 20 June 2014
1 Exhibit A1 at [1]
2 Ibid at [1]-[2]
3 Exhibit R2
4 Transcript PN 48 – PN 84; See also Submission of Applicant at [1] – [8] and Final Submission’s on behalf of the Respondent [2], [5]-[8] and [9]-[11]
5 Section 385(c)
6 Ibid
7 See John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo[2012] FWAFB 1359
8 Ibid; See also Khammaneechan v Nanakhon Pty Ltd[2010] FWA 7891; (2010) 204 IR 39
9 Exhibit R3 at [5]
10 See Photograph of notice attached to Exhibit R3
11 Ibid
12 Exhibit R3 at [6]
13 Exhibit A1 at [3] and attachment SM-1 thereto
14 Exhibit A1 at [4] and attachment SM-2 thereto
15 Exhibit R1 at [15]
16 Ibid at [16] – [18]
17 Ibid at [18]
18 Ibid
19 Exhibit A1 at [7]
20 Ibid c/f Exhibit R1 at [19]
21 Exhibit R1 at [20], [23]
22 Exhibit A1 at attachment SM4
23 Exhibit A1 at [8]
24 Ibid at [9]
25 Exhibit R2 at [15] – [21]
26 Attachment to Exhibit R2
27 Exhibit R1 at [23] – [25]
28 Transcript PN 548 – PN549
29 Exhibit R2 at [21]
30 Exhibit A1 at [8]
31 Transcript PN820 – PN 841
32 Transcript PN 370 – PN 385
33 Transcript PN 861 – PN864
34 Exhibit A1 at [8]
35 Attachment to Exhibit R2
36 Exhibit R2 at [19]
37 Exhibit A1 at [8]
38 Transcript PN 50 - PN 59
Printed by authority of the Commonwealth Government Printer
<Price code C, PR552958>
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