Stephen Baulch v Armistead Earthmoving Pty Ltd
[2011] FWA 3772
•16 JUNE 2011
[2011] FWA 3772 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Stephen Baulch
v
Armistead Earthmoving Pty Ltd
(U2011/4926)
COMMISSIONER GOOLEY | MELBOURNE, 16 JUNE 2011 |
Application for unfair dismissal remedy.
[1] Mr Stephen Baulch (the Applicant) was employed by Armistead Earthmoving Pty Ltd (the Respondent) from by 1 December 2007 until 3 February 2011 when Mr Baulch alleges his employment was terminated.
[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 11 March 2011 and then the matter was referred for hearing on 7 June 2011.
[3] Mr Baulch appeared for himself and Mr Rodney Armistead appeared for the Respondent.
[4] The parties were advised that the matter could proceed as a conference or a hearing and the parties chose to proceed with a hearing.
Jurisdiction of Fair Work Australia
[5] There is no dispute that the Applicant is a person who was protected from unfair dismissal. The Respondent is a small business and therefore the Small Business Fair Dismissal Code is relevant to this proceeding.
The Evidence
[6] Both Mr Baulch and Mr Armistead gave evidence on oath. Neither Mr Armistead nor Mr Baulch had any experience representing themselves in Fair Work Australia and I have not drawn any adverse inferences from their failure to cross examine each other.
[7] Mr Baulch was employed as a casual labourer but he worked regular hours. There was no issue that Mr Baulch was employed on a regular and systematic basis.
[8] The Respondent had a contract with the Surf Coast Shire to manage their transfer station and landfill. Mr Baulch was employed to manage the landfill but was subsequently transferred to manage the transfer station.
[9] On 9 December 2010 Mr Baulch injured his lower back and left work and attended his medical practitioner. 1 An injury report was completed and while it stated that the injury occurred on 10 December 2010, this was accepted by all parties as an error. Mr Baulch’s doctor said he would be unfit for work for two months.
[10] Mr Baulch provided his employer with a medical certificate for his absence. The Respondent advised Mr Baulch to apply for workers compensation which he did.
[11] It was not contested that the Respondent continued to pay Mr Baulch’s wages for five weeks. 2
[12] On 3 February 2011 the Respondent was advised that his worker’s compensation claim had been rejected. 3 That advice stated that Mr Baulch was not incapacitated for work.
[13] It was Mr Armistead’s evidence that on 3 February 2011 Mr Baulch rang Mr Armistead and told him his claim had been rejected. Mr Armistead asked him why his claim had been rejected and Mr Baulch told Mr Armistead that the insurer’s doctor had said he was fit to return to work. Mr Armistead then said to Mr Baulch “it looks like you have been taking a holiday on me.”
[14] Mr Armistead said that Mr Baulch told him that his own doctor said he was still unfit to work. He said to Mr Baulch “I’m instructed not to pay you. You can’t work for me. Better go and see CES.” 4
[15] What occurred then is in dispute. Mr Armistead said he said to Mr Baulch you knew you were going to go before you hurt your back. He then ended the call as Mr Baulch was getting abusive. 5
[16] Mr Baulch said he replied to Mr Armistead’s comment about the holiday by saying “what does that mean?” Mr Baulch said that Mr Armistead replied “that’s it fellow, there’s no work for you, that’s the way it is.”
[17] Mr Armistead denied making this statement. It was his evidence that he said “you can’t work for me if your medical certificate says that you can’t. I’ve been instructed not to make any more payments by the insurer.” 6
[18] Mr Armistead denied terminating Mr Baulch’s employment. 7 He stated that had Mr Baulch been fit to return to work on 3 February 2010 and turned up for work “he would have returned to work.”
[19] It is not contested that on 21 February 2011 Mr Armistead issued Mr Baulch with a separation certificate. The form provides a space for the employer to advise the date employment ceased and reason for the separation. The reason given on the separation certificate was “other - workers comp claim rejected.”
[20] Mr Armistead explained that he received Mr Baulch’s application for unfair dismissal and it included a statement that Mr Baulch was waiting for “any letter of dismissal and/or separation certificate and until now it’s February 10, 2011, I haven’t received it.”
[21] It was Mr Armistead’s evidence that having received the application “[he] was of the belief that he was having trouble getting Centrelink payments and instructed my mother at the office, we better get Steve a separation certificate because he might be having trouble getting Centrelink if that’s why he - I am waiting for any letter of dismissal or separation certificate in the Fair Work.” 8
[22] He further said “my mother rang me up and asked me “what do I write there?” Mr Armistead said that his response was “Write - I guess it’s difficult. If it’s been rejected I don’t know what to write there. I guess if you just put workcover rejected, the only purpose of that separation certificate was to enable him Centrelink Benefits. I didn’t know what else to put on that.” 9
[23] It is not contested that Mr Baulch, at the time of the hearing, was still not fit to return to work. It is also not contested that Mr Armistead had employed someone else to do the work though it is unclear if that employee is a casual employee or a permanent employee.
[24] Mr Armistead gave evidence that he had decided to terminate Mr Baulch’s employment prior to Mr Baulch injuring his back.
[25] It was his evidence that he had a number of issues with Mr Baulch’s performance. Mr Armistead said Mr Baulch failed to clean up litter around the site. Mr Armistead gave evidence that, after inspecting the site with the Shire landfill coordinator, he spoke to Mr Baulch and asked him why there were papers in a drain close to the transfer station. Mr Baulch claimed it had been windy and he had been busy. Mr Armistead told Mr Baulch to clean up the drain and not to let it get into that situation again. 10
[26] On 17 November 2010 Mr Armistead received an email from the landfill coordinator advising that Mr Baulch was leaving work at 4pm when there were people still using the transfer station. Mr Armistead thought the half hour of overtime claimed by Mr Baulch each week was for these occasions. Mr Armistead spoke to Mr Baulch about this who told him that if he paid him more overtime he would stay. 11
[27] On 30 November 2010 Mr Armistead received another email from the landfill coordinator in which complaints were made about the state of the site. Mr Armistead said the photos showed that the drain he had previously told Mr Baulch to clean had not been cleaned. He spoke to Mr Baulch and again he claimed he had been busy. Mr Armistead told Mr Baulch that the job had previously been done by one person and he told him “I cannot afford to pay for two men to do a one man job, so I will have to get someone else and you will have to go.” 12
[28] Mr Armistead said he contacted the landfill coordinator to get information about how busy the site had been. The landfill coordinator told him verbally that it had been quieter than previous years. Mr Armistead raised this with Mr Baulch and told him he would not be employing two men to do a one man job. Mr Armistead said that Mr Baulch rejected this and walked off. 13
[29] Mr Baulch denied he did not clean up the site. He explained that it was windy and new rubbish blew into the drain after he cleaned up. 14 Mr Baulch provided no explanation as to why he could not complete all the work when Mr Armistead said it had previously been a one man job.
[30] In answer to the allegation that he left the site when there were still customers present, Mr Baulch said that he was only paid to work to 4pm and that overtime was not allowed.
[31] While Mr Baulch accepted that Mr Armistead would often come down and ask him to tidy the place up, he denied he was ever told that if his work did not improve his employment would be terminated.
Submissions
[32] Mr Baulch submitted that his employment was terminated because he applied for worker’s compensation. He relied upon section 242AA of the Accident Compensation Act 1985 which makes it an offence to dismiss an employee for the dominant reason that they have taken steps to pursue a claim for compensation.
[33] Mr Baulch did not make any detailed submissions outlining the basis of this claim. The evidence before the Fair Work Australia was that Mr Armistead encouraged Mr Baulch to pursue his workers compensation claim. There was no evidence to support a claim that Mr Armistead took any adverse action against Mr Baulch because he made a claim for compensation.
[34] Mr Baulch further submitted that he didn’t believe he had done a bad job and that was supported by the fact that he had been there for three years and that he worked hard. 15
[35] Mr Baulch relied on the fact that Mr Armistead had not put on the separation certificate unsatisfactory performance or misconduct or any of the other examples that would have been relevant if he had been terminated for poor performance.
[36] Mr Armistead submitted that there was no termination and the separation certificate was not evidence of termination. He submitted that it stated the last day worked as 8 December 2010 to ensure Mr Baulch got the best benefit from Centrelink. He accepted it would have been more accurate to have written unfit for work 16 as the reason for Mr Baulch’s non attendance at work.
Conclusion
[37] For a person to be unfairly dismissed the person’s employment must have been terminated at the employer’s initiative.
[38] While both witnesses gave evidence of what they recalled, I prefer Mr Armistead’s evidence in this matter to Mr Baulch’s evidence. Mr Armistead did receive written complaints from the landfill coordinator about Mr Baulch’s work. I accept he took these complaints seriously and raised them with Mr Baulch. I accept that Mr Armistead made it clear to Mr Baulch that his employment was at risk.
[39] While I accept that it was Mr Armistead’s intention to terminate Mr Baulch’s employment, Mr Armistead did not get the opportunity to terminate Mr Baulch’s employment because of Mr Baulch’s absence from the workplace due to his injury. I accept the evidence of Mr Armistead that he did not terminate Mr Baulch’s employment during the telephone conversation on 3 February 2011.
[40] I accept Mr Armistead’s evidence that the reason he provided Mr Baulch with a separation certificate was because Mr Baulch had, in his unfair dismissal application, stated that he had not received “any letter of termination and/or separation certificate.” I accept Mr Armistead’s evidence that he provided the separation certificate to assist Mr Baulch obtain Centrelink benefits.
[41] As Mr Armistead did not terminate Mr Baulch’s employment the application is dismissed.
COMMISSIONER
Appearances:
S Baulch on his own behalf.
R Armistead for the Respondent.
Hearing details:
2011.
Melbourne:
June 7.
1 Exhibit A1 at iii
2 Exhibit R1
3 Ibid
4 Transcript PN 151
5 Exhibit R1 Ibid
6 Transcript PN 174
7 Transcript PN 160
8 Ibid PN 156
9 Ibid PN 159
10 Exhibit R1
11 Ibid
12 Ibid
13 Ibid
14 Transcript PN 41
15 Ibid PN 215
16 Ibid PN 223
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