Stephen Waller v TCP Pty Ltd

[2011] FWA 7968

[2011] FWA 7968

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Waller
v
TCP Pty Ltd
(U2011/507)

COMMISSIONER ROBERTS SYDNEY, 25 NOVEMBER 2011

Application for unfair dismissal remedy - arbitration.

[1] This decision concerns an application lodged on 10 March 2011 by Mr Waller pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by TCP Pty Ltd (TCP or the Company). The application was dealt with by a Fair Work Australia Conciliator on 6 April 2011 but the conciliation was unsuccessful.

[2] The Arbitration came before me for hearing in Brisbane on 15 July 2011. Mr Waller was represented by Mr D Victory of Maurice Blackburn Lawyers and the Company by Mr M Ritchie of the Victorian Employers’ Chamber of Commerce and Industry (VECCI).

[3] The Applicant gave sworn evidence on his own behalf. Mr E Meredith (TCP’s Queensland State Manager), Mr G Petersen (a casual employee of TCP) and Mr A Hohendorf (a contractor for TCP) gave evidence for the Company.

Background

[4] Mr Waller was first employed by TCP as a contractor in July 2001. From on or about 4 December 2003 he took up a full time position as a Contract Supervisor until he was verbally dismissed by Mr Meredith with effect from 28 February 2011 for alleged conflict of interest and unsatisfactory work performance. The dismissal was confirmed in a letter dated 8 March 2011 signed by TCP’s Office Manager. That letter states that the termination date was 25 February 2011, but the Company per Mr Meredith stated during proceedings that this was a typographical error and the date given in the letter should have been 28 February 2011.

[5] Mr Waller disputes the Company’s allegations and maintains that there was no valid reason for the termination of his employment and that the termination was harsh, unjust and unreasonable. Mr Waller seeks compensation but not reinstatement.

Evidence

Mr Waller

[6] Mr Waller gave sworn evidence and submitted a witness statement 1

[7] In his statement, Mr Waller said that when he was employed full time in 2003, he was provided with a company car which he could also use for personal purposes and a mobile phone. There were no restrictions placed on the use of the mobile phone. TCP manufactures a paint which is used in road line markings. His duties with TCP were varied and included occasional work as an applicator together with teaching other employees how to use the product and repairing various items of company equipment. He developed a friendship with Mr Meredith.

[8] Around January 2010, he informed Mr Meredith of his plans to buy a truck and run it as a contractor for Linfox Transport. He completed the purchase of the truck in late February 2010. Mr Meredith “congratulated me on doing something to secure my future outside of TCP”. Around April 2010, Mr Meredith told him that he was intending to retire, and did so in July 2010. “I was very uncertain about what would happen after he left. I wondered whether they might close the place down. It certainly crossed my mind that they might.”

[9] After Mr Meredith’s retirement, Mr Waller took over Mr Meredith’s daily office duties including invoicing, quoting, product sales and telephone enquiries. In addition he was helping to run the contract arm of the business. Mr Meredith continued to play a role in the Company in relation to larger jobs. Mr Meredith returned to TCP in November 2010 and Mr Waller’s relationship with him deteriorated and Mr Waller began spending less time in the office and Mr Meredith complained of his verbal behaviour which was allegedly upsetting other employees.

[10] In January 2011, he purchased a second truck, also under contract to Linfox and employed a second driver to operate this vehicle. “Linfox had control of where the truck was scheduled to operate.” This was also the case with the first truck. Around 9 February 2011, Mr Meredith suggested to him that he take some time off “and become the happy old Steve we used to know”. During his leave, he was diagnosed with depression and referred to a psychiatrist. He returned to duty on 28 February 2011.

[11] On his return from leave on 28 February 2011, Mr Meredith spoke to him and terminated his employment. According to Mr Waller the following conversation occurred between him and Mr Meredith on 28 February 2011:

“[Mr Meredith] said words to the effect of:

‘I feel it is unfair on the company, you are double dipping expecting us to pay for your car and phone while running a business. You are using the car to service the trucks, getting us to pay for the period and the tolls. You are also using the phone too much. It is wasting company time.’

I explained to [Mr Meredith] what exactly happens with the running of the business. I said to him words to the effect of:

‘I have no control over what they do, or whether they go. The Linfox controllers SMS the driver at night with a start time and then control his movements throughout the day. If the driver does call me up during business hours, it is mainly to ask if he can fill up the truck’s tank.’

I also said words to the effect of:

‘Most of the time I talk to the drivers is after hours, or before hours.’

After telling him about the daily role I play in running the business, [Mr Meredith] then brought up my work performance.

He said words to the effect of:

‘Your work just isn’t up to standard. It isn’t good enough, and as far as I am concerned, it is because of the business.’”

[12] Mr Waller went on to say that he said to Mr Meredith words to the effect: “I was expecting it.” He later received a separation certificate 2 stating that the termination of his employment was for “unsatisfactory work performance”.

[13] Mr Waller’s statement went on to deal with his use of a company car and mobile phone. He said that he was always led to believe that there were no restrictions on how he used the vehicle and no occasion ever arose during his employment when he was asked to pay for petrol or road tolls. “If I used the company car for the trucking business during work hours, I would always ask [Mr Meredith] if I could go and do what I had to do. [Mr Meredith] nearly always said yes. I never left work to attend to work for the truck business without speaking to [Mr Meredith] first.” Mr Waller estimated that he only attended to his truck business during work hours on about three occasions. In relation to the mobile phone, Mr Waller said that he believed the phone was on a monthly plan and “I thought the deal was that if I went over my limit, I would pay.” Such payments were made on various occasions.

[14] Mr Waller went on to provide further material in relation to his truck business, saying that he only spent a few minutes a day on the phone on matters relating to that business. He had Mr Meredith’s approval to service and wash his truck at TCP premises. This ceased in November 2010 when he found another place to perform such work. However, he continued to use the TCP facility for some emergency repairs. “Never in the 10 months of operating the business was I ever told it was a conflict of interest with TCP. At no time did anyone from TCP ever tell me that it was a conflict, or that I should cease running the business.”

[15] “I have never been given a written warning. Other than the incidents referred to above, I do not recall receiving any other verbal counsellings or warnings in my 10 years of employment. I thought that I would be working there until they carried me out in a pine box. I told everyone it was my retirement job. I was happy there, I enjoyed my work, and my conditions. I thought that I was a good employee. I thought that there was give and take. I worked hard for the Company, and I thought the Company treated me well in return. It never was really a problem to have time off all I had to do was ask [Mr Meredith] and he always said yes, no matter what it was for. I was always honest with him about where I was going, and what I was doing. I believe that everything was done on [Mr Meredith]’s ‘okay’ and with his knowledge.”

[16] Mr Waller went on to say that he now drives his truck personally and receives an income of some $500 per week. He has also had to purchase a new car since the loss of his job with TCP.

[17] Mr Waller also submitted a second witness statement 3 as a statement in reply to those made by the Company witnesses. In his statement in reply Mr Waller said that:

• He was never told that he could not use the Company mobile phone for personal use.



• When he ran over his phone call limit, he paid any excess cost.



• He did not see the mobile phone accounts and relied on Mr Meredith to bring it to his attention if he exceeded the cap.



• He denied that Mr Meredith had ever told him “that I needed to ensure that my trucking interests would not interfere with my employment with TCP.



• In any event “I was careful to ensure the time I spent on my business did not detract from my work at TCP.”



• He took the Company mobile phone home and was on call via that phone after hours.



• “I estimated that on average I would get about two calls a week outside of work hours that I took on my mobile phone. The calls were mainly from contractors about the machines or the product. I would have to assess their problem and advise the persons step by step on how to fix the problem. This would require me to spend anywhere between five minutes to an hour on the phone. I did not claim this time as overtime.”



• He denied that he was ever threatened with dismissal concerning his work performance.

[18] Mr Waller’s second statement goes on to deal with the issues raised in the witness statement of Mr Roach concerning repairs to equipment.

[19] Mr Waller went on to say that Mr Petersen, Mr Hohendorf and Mr Roach had never communicated concerns to him directly about his behaviour. Likewise, performance issues were not raised with him until the termination of his employment “and the only time I recall him speaking to me about my attitude and behaviour was on 30 November 2010. However, from his comments I was not able to determine how to correct the perceived problems with my behaviour.” Mr Waller goes on to say that any differences in his behaviour may have been the result of depression brought on by his father’s terminal illness.

[20] In cross-examination, Mr Waller:

• Denied that he was ever told by Mr Percic or Mr Meredith that the Company mobile phone was only to be used for business purposes. 4



• Repeated his evidence that he received permission from Mr Meredith to service his truck at the TCP site. 5

Denied being sarcastic or condescending when talking to other employees or swearing at them. 6

Denied ever bullying anyone. 7

Denied receiving any warning from Mr Meredith concerning his use of the Company mobile phone. 8

Was asked: “I put it to you that you would take frequent cigarette breaks, answering your mobile phone, spending a lot of time on non-work-related business?” and replied: “No.” 9

Said that in the meeting which led to his termination of employment, Mr Meredith was attempting to provoke him into aggression. 10

[21] In re-examination, Mr Waller said that he was never told that he was taking too many cigarette breaks. 11

Mr Meredith

[22] Mr Meredith gave sworn evidence and submitted a witness statement 12.

[23] In his witness statement, Mr Meredith said that he commenced employment with TCP in January 2002. Mr Waller commenced employment with the Company in December 2003 as a contract supervisor managing a team of contractors as well as servicing and repairing line marking machines. When first employed, Mr A Percic (who at the time was TCP NSW Manager and National Sales Manager) explained the specific requirements of Mr Waller’s position to him and went over the terms and conditions of employment in considerable detail. Mr Meredith recalled Mr Percic informing Mr Waller that “the company mobile phone was for business use only and was not to be used for personal use”.

[24] When the Applicant purchased a truck in January 2010, Mr Waller assured him “that his new venture would not interfere with the duties of his Position at TCP. I congratulated Mr Waller on his new venture but hold him to make sure he followed his promise and wouldn’t let it interfere with his duties.”

[25] In April 2010, Mr Meredith spoke to the Applicant regarding his mobile phone bill and the number of long phone calls made during working hours. The Applicant subsequently repaid $291 to TCP. Mr Meredith goes on to dispute the Applicant’s evidence that there was some arrangement whereby if he went over his cap limit, he would repay the difference. “This is completely untrue as I made it very clear personal calls were not to be made using the company mobile phone on company time.” Subsequent mobile phone bills were significantly smaller and Mr Meredith and his Office Manager continued to monitor the accounts. No formal warning was issued to the Applicant.

[26] In summary, Mr Meredith’s statement went on to say that:

• In November 2010 he returned from a stint in Melbourne to find that the workshop “was extremely messy and several Machines recently serviced by Mr Waller were breaking down more frequently than usual.”



• “It became evident to me that Mr Waller’s attitude, demeanour and performance standards had dropped significantly during my absences and his attitude and work ethic had become unacceptable.”



• He received a report from another TCP employee that Mr Waller was behaving aggressively and “that his attitude and behaviour was starting to get worse.”



• He began to monitor Mr Waller’s behaviour and work performance, both of which he found to be deficient.

[27] “On the morning of 30 November 2010 Mr Waller approached me and said ‘do you have a problem with me? In response I called Mr Waller into my office to discuss his poor performance and attitude. I told him ‘I am sick and tired of your use of derogatory language and standover bullying tactics. I’m sick and tired of sticking up for you. If it continues and you do not also lift your work performance, I will be dismissing you’. Mr Waller apologised to me and said he did not intend to bully anyone. He said he would try to improve both his attitude and his general communication with everybody he worked with. When his face turned red and he began getting flustered I could tell he was embarrassed. I said words to the effect of ‘There is no need to get upset. You just have to watch what you say around people and lift your game.’ I considered this to be Mr Waller’s first and final formal warning.”

[28] Mr Meredith’s statement went on to set out in some detail allegations concerning poor performance and unacceptable behaviour by the Applicant. In particular, Mr Waller’s work on repair jobs was not up to standard and cost the Company a considerable amount to have rectified. When Mr Waller purchased a second truck, Mr Meredith presumed that he would be resigning from his employment at TCP. “I again emphasised to Mr Waller that he needed to ensure his trucking interests would not interfere with his employment at TCP. I felt that his trucking business was already interfering with his work but decided I would monitor his performance more closely for a while. I also asked Mr Waller to remove his personal trucking parts and waste oil from his work area as it was inappropriate for them to be there. Mr Waller had been asked to remove his trucking parts and waste oil on several occasions since buying into the trucking business in January 2007. In Mr Waller’s Statement at point 149 Mr Waller states ‘shortly after purchasing the truck, I asked [Mr Meredith] if I could use the front of the TCP factory to service the truck. [Mr Meredith] said to me words to the effect of: ‘No problem, so long as you clean up afterwards’.’ This is a complete fabrication as Mr Waller never asked if he could do this. I can’t imagine I would have ever allowed this, even if Mr Waller had asked me, as I didn’t believe it was appropriate.”

[29] Problems over Mr Waller’s mobile phone use re-emerged in February 2011. The Office Manager “calculated that between November 2010 and January 2011 Mr Waller had made 142 calls to Toll Distributers and 65 calls to this other personal number using his company issued mobile phone.”

[30] Mr Waller subsequently apologised for the misuse of the Company mobile phone and advised Mr Meredith that he was in the process of obtaining his own phone. “Mr Waller promised me he would divert any incoming trucking calls to his own phone at his own cost. I reminded him personal calls should not be taken during his TCP working hours. Please note that while Mr Waller did place a diversion on his incoming personal calls I realised, following Mr Waller’s dismissal, the diversion costs were still charged to TCP.”

[31] Also during February 2011, Mr Meredith observed the Applicant spending significant periods of time outside the TCP site smoking and speaking on his mobile phone. “He appeared to be totally disinterested in his work at TCP and I believed he was focusing on his own trucking business, rather than his Position.”

[32] On 9 February 2011, he directed Mr Waller to take two weeks annual leave and told him “that he appeared to be distracted and unfocused so it would be a good chance to relax and return re-focused. Mr Waller agreed that his thoughts and focus were elsewhere and complied with my instructions.” During Mr Waller’s absence, Mr Meredith observed that the employees and contractors performing Mr Waller’s duties were taking much less time to complete the work. He also observed that the Queensland site was “working much more harmoniously, efficiently and effectively without Mr Waller’s disruptive presence. I considered his misuse of time and company mobile phone amounted to theft as TCP had been paying for Mr Waller’s personal phone calls and for time he was not spending in performing his duties, which was totally unacceptable. I considered that based on these findings and Mr Waller’s continued poor performance I would dismiss him for serious misconduct upon his return.”

[33] On 28 February 2011, when Mr Waller returned from his annual leave, he spoke to Mr Waller and dismissed him. He told Mr Waller that the grounds for termination were his poor performance and a conflict of interest between his duties at TCP and his trucking business. Mr Waller appeared unsurprised and said words to the effect: “I thought this would have happened some time ago.” Mr Meredith then replied with words to the effect: “your work just isn’t up to standard. It isn’t good enough and as far as I’m concerned, it is because of the time you spend running your business.”

[34] In cross-examination, Mr Meredith:

• Said that Mr Waller was allowed to use his phone for personal use “but for a few personal calls, not for running his trucking business and massive private calls.” 13

Was questioned extensively about the cap on Mr Waller’s mobile telephone account.

Agreed that it was possible that Mr Waller had been overcharged for his use of the Company mobile phone for personal calls. 14

Said that he believed himself to be “a flexible boss”. 15

Said that Mr Waller was rarely on call after work hours. 16

Said that he did not tell Mr Waller directly that he had been issued with a first and final formal warning “but I asked him to lift his game ...” 17

Maintained his evidence that Mr Waller was told that if he did not improve his work performance he would be dismissed. 18

Agreed that Mr Waller was told to take annual leave and ‘return refocused’ and further agreed that he dismissed Mr Waller “before he had the opportunity to refocus ...” 19

Said that he did not consider whether Mr Waller’s lack of focus related to Mr Waller’s father being terminally ill. 20

Said that he learned of Mr Waller’s depression after the termination of employment. 21

[35] In re-examination, Mr Meredith said that machines began breaking down on a regular basis in the period leading up to the dismissal of Mr Waller. 22 During re-examination a diary note written by Mr Meredith and dated 30 November 2010 was entered into evidence.23 That document concerns a meeting between Mr Waller and Mr Meredith to discuss Mr Waller’s alleged ‘bully behaviour’.

[36] In further cross-examination, Mr Meredith agreed that the diary note contains no mention of a threat to dismiss Mr Waller if his work performance did not improve. 24

Mr Petersen

[37] Mr Petersen gave sworn evidence and submitted a witness statement 25.

[38] In his witness statement, Mr Petersen said that he has worked for TCP as a casual employee since July 2010. Mr Petersen’s statement goes on to say:

“Upon commencement of employment with TCP in July 2010 I was informed Stephen Waller was my supervisor. In a few short weeks I found him to be an overbearing personality. I also found Mr Waller to be an extremely intimidating supervisor and found him very stressful to work under and report to. Having had over 20 years experience as a supervisor in my previous employment I found the manner in which Mr Waller conducted himself, as a supervisor, towards TCP employees and contractors to be totally inappropriate. Around the time I commenced employment with TCP I recall the TCP Queensland Manager, [Mr Meredith], was spending much of his time in Melbourne and Mr Waller had been left in charge. During this time I could see Mr Waller’s work ethic appeared to be non-existent. He rarely performed any of his duties and I considered his attitude towards work for TCP to be totally inadequate, especially when Mr Meredith was out of the Queensland office. Around late November 2010 when Mr Meredith returned to TCP Queensland to work permanently I informed him of Mr Waller’s poor performance and attitude and that I would not be prepared to continue my employment with TCP if things did not change. I was tired of picking up his slack and dealing with his overbearing, bullying behaviour. I also recall that after the purchase of Mr Waller’s second truck (for his trucking business) in early January 2011 he became even more preoccupied with the process of purchasing new truck and the running his own trucking business. As such, Mr Waller was not performing his duties at TCP. I felt that this was very inappropriate and unprofessional.”

[39] In cross-examination, Mr Petersen agreed that he had not raised any of his concerns with Mr Waller. “Mr Waller was my employer as far as I was concerned, so it wasn't my job to bring up how he was working.” 26

Mr Hohendorf

[40] Mr Hohendorf gave sworn evidence and submitted a witness statement 27.

[41] In his witness statement, Mr Hohendorf said that he has worked for TCP as a contractor since 2004 and has known Mr Waller since that date. Mr Hohendorf’s statement goes on to say:

“I know a number of work colleagues who refuse to work with Mr Waller because of his rude and intimidating manner. He was like his right up until he was dismissed from TCP. Personally, I experienced great difficulty in teaching Mr Waller any new skills, as I was required to do from time to time. I found Mr Waller to be arrogant and over assured of his capabilities and would often blame other TCP employees and contractors for his own mistakes. I didn’t have too many run-ins with Mr Waller. Based on his attitude and manner I decided it was best to stay out of his way. Personally I would have terminated Mr Waller’s employment some time ago.

[42] In cross-examination, Mr Hohendorf said that he had never raised the issues covered in his witness statement directly with Mr Waller while Mr Waller was employed. He went on to say that he was aware of Mr Waller’s father being ill but not that Mr Waller suffered from depression. 28

Submissions

[43] Written outline of submissions were filed prior to the hearing on behalf of both Mr Waller and TCP. Those submissions were marked as Exhibits Waller 3 and TCP 1 respectively.

The Applicant

[44] The Applicant’s submissions, per his solicitors, argued that the termination of Mr Waller’s employment was harsh, unjust and unreasonable for the following reasons:

“a) there was no valid reason for the termination of the Applicant’s employment.

b) taking the conduct alleged against the Applicant at its highest, it does not constitute misconduct;

c) taking the conduct alleged against the Applicant at its highest, it falls short of conduct that founds a valid reason for termination of employment;

d) to the extent that the Respondent alleges that the Applicant engaged in misconduct, the Applicant was not guilty of the misconduct alleged;

e) to the extent that the termination was actuated by alleged poor performance, the Applicant was not advised of the alleged poor performance, nor given an opportunity to improve, nor did the alleged poor performance in any event found a valid reason for the termination of the Applicant’s employment;

f) the applicant was not afforded procedural fairness in the manner of the termination, nor was he afforded an opportunity to respond to the allegations against him;

g) even were the Tribunal satisfied that the Applicant engaged in the conduct alleged against him, termination of his employment was disproportionate to the conduct alleged.”

[45] The submissions go on to deal with the above matters in some detail. I have paid regard to that further material.

The Company

[46] TCP, per VECCI, argued that the Company is a small business and complied with the Small Business Fair Dismissal Code (the Code). The submissions go on to say that Mr Waller performed his duties to a reasonable standard until around November 2010 when his performance seriously declined. Mr Waller was provided with a final formal warning regarding his work performance by Mr Meredith on 30 November 2010 but his work performance did not improve after that day. It was during Mr Waller’s leave in February 2011 that Mr Meredith was able to confirm to his own satisfaction the extent of the decline in the Applicant’s work performance.

[47] The Company relies on misconduct by the Applicant in relation to the use of his Company-issued mobile phone and in particular, the use of the mobile phone in relation to the Applicant’s truck business. The Company also alleges that Mr Waller used significant periods of paid work time to conduct the affairs of his trucking business.

[48] The Company’s submissions summarised its contentions in relation to having a valid reason to terminate the Applicant’s employment in the following terms:

“a) Intimidating and blaming a number of Respondent employees and contractors for things they were not responsible for many months - constituting both wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment and conduct which causes a serious and imminent risk to the health and safety of other employees;

b) Theft, by way of making a substantial amount of personal calls on his company issued mobile phone, and then having the company pay for the phone bills; [reference omitted]

c) Theft, by way of being paid to perform the duties of his Position while he was spending time on non-work related interests;

d) Refusing to carry out a lawful and reasonable instruction by continually using his company issued mobile phone to make personal calls during his working hours; and

e) Ongoing poor performance of his duties after being formally warned that he would be dismissed if he did not improve.”

[49] In relation to performance and conduct, the Company claims that the following matters justified Mr Waller’s dismissal:

“a) The Applicant’s continued poor standard of service and repair work;

b) Mr Meredith and Mrs Brown’s investigation proving the Applicant had made a significant amount of personal phone calls to Toll Distributors during his working hours, and other parties who had no relationship with TCP, after being expressly instructed to not use the company issued mobile phone for personal use, especially during work time;

c) Mr Meredith observing the Applicant spending a considerable amount of time away from his work area chain smoking and speaking on his mobile phone in the month leading up to his dismissal;

d) Mr Meredith finding how much more efficiently and harmoniously the factory operated during the two weeks of annual leave the Applicant had been instructed to take immediately before being dismissed; and

e) Mr Meredith observing how much faster the Applicant’s colleagues were performing duties which the Applicant had been taking so long to perform.”

[50] The submissions go on to deal with the above matters in further detail. I have paid regard to that further material.

Oral Submissions

[51] Both parties made final oral submissions at the end of proceedings. Much of those submissions went to matters which I have earlier dealt with. Accordingly, I note here only that I have paid regard to the oral submissions of each side.

Conclusions and Findings

[52] Section 385 of the Act provides:

“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.”

[53] In the case before me it does not appear to be in dispute that TCP is a small business employer. It is not contested that Mr Waller is a person protected from unfair dismissal in that his employment exceeded one year and his annual earnings were less than the high income threshold. The first matter for me to consider is whether the dismissal of Mr Waller was consistent with the Code. The terms of the Code are set out below:

“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.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

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.”

[54] The Explanatory Memorandum to the Fair Work Bill 2008, at paragraph 1545 relevantly states the following concerning the operation of the Code where an employer employs fewer than 15 employees:

“1545. If a person’s dismissal is consistent with the Small Business Fair Dismissal Code then the dismissal will be considered fair and the other factors relating to unfair dismissal do not need to be considered. This arises because clause 396 provides that whether a dismissal is consistent with the Code is an initial matter that FWA must consider before considering the merits of the application. If the employer has not complied with the Code, the claim will be treated the same way as any other unfair dismissal claim.”

[55] Mr Ritchie submitted, and I accept, that if the Code was followed by TCP per Mr Meredith in effecting the termination of Mr Waller’s employment then no further conclusions or findings by me are required.

[56] Mr Waller was dismissed with paid notice for alleged misconduct and performance issues. An allegation of serious misconduct against him was made earlier in proceedings but was withdrawn by Mr Ritchie during final oral submissions. 29 Therefore only the second two paragraphs of the Code are relevant to my consideration.

[57] On the balance of probabilities, I conclude that Mr Waller was told by Mr Meredith 30 on 30 November 2010 that his employment was in danger if his work performance and conduct did not improve. I am satisfied that Mr Meredith raised such issues with Mr Waller on that day as reflected in Mr Meredith’s diary note31 but that note makes no mention of any threat of dismissal. However, after a careful consideration of the competing evidence of Mr Waller and Mr Meredith concerning the 30 November 2010 meeting, I have concluded that the evidence of Mr Meredith is to be preferred where that evidence is in conflict with that of Mr Waller concerning Mr Waller’s work performance, attitude and conduct and that Mr Meredith warned Mr Waller that his future employment was in danger.

[58] There are only two issues where I do not consider the Company evidence and submissions to be persuasive is that of the financial aspects of Mr Waller’s mobile telephone account. On what is before me, I cannot discover any wrongdoing by Mr Waller in relation to the cost of calls made by him for personal or outside business reasons. He appears to have promptly paid any monies demanded from him by the Company and in fact, appears to have been overcharged by TCP for his mobile telephone use. The other issues related to the mobile phone such as the Company time used to make calls is another matter altogether and again I prefer the evidence of the Company on this point. Likewise, I am unable to draw the conclusion or make any finding that Mr Waller was guilty of what Mr Ritchie referred to as ‘time theft’.

[59] Mr Waller did not heed Mr Meredith’s warning and his work performance in particular continued to decline and I so find. I am unable to reach any conclusion that Mr Waller’s outside business involving the ownership of trucks was a factor in his declining performance. The Applicant’s involvement in his trucking business long pre-dated the performance and attitude problems identified by Mr Meredith.

[60] The reasons for Mr Meredith’s warning to Mr Waller on 30 November 2010 were valid based on the Applicant’s conduct or capacity to do his job. The subsequent termination of employment was also based on a valid reason as Mr Waller’s conduct and work capacity did not improve in the period between 30 November 2010 and 28 February 2011. I have no doubt that Mr Waller was aware of the Company’s expectations of him and that he did not meet such reasonable expectations. Accordingly, I find that the Code was followed by TCP in effecting the termination of Mr Waller’s employment as far as the matters contained in paragraph 2 of the Code are concerned.

[61] In relation to procedural matters as set out in paragraph 3 of the Code, it is common ground between the parties that Mr Waller did not have another person to assist him in discussions with the Company on 30 November 2010. There is no evidence that Mr Waller requested such a person to be present. As noted above, I am satisfied that the evidence of Mr Meredith is reliable in providing evidence of compliance with the Code and parts of his evidence are also confirmed by the evidence of Mr Petersen and Mr Hohendorf. In relation to the evidence of those two persons, I find that it is reliable.

[62] I consider it unfortunate that Mr Waller’s employment was terminated on the day he returned from leave and that he was not further interviewed prior to the termination taking effect. However, as I have found above, the Applicant was on notice from 30 November 2010 that his employment was in danger and I further accept Mr Meredith’s evidence that he discovered additional information detrimental to Mr Waller while Mr Waller was on leave. The procedural deficiency in effecting the actual termination of employment was not such as to breach the Code.

[63] In summary, I find that there was a valid reason for TCP to dismiss Mr Waller due to his work performance and conduct. I further find that he was warned verbally and should have been aware that his continued employment was at risk if his performance and conduct did not improve. I further find that Mr Waller was given a reasonable chance to rectify the problems identified by Mr Meredith during the period after 30 November 2010. Having determined that the termination of employment was consistent with the Code, it follows that Mr Waller’s employment was not unfairly terminated and I so find. The application is therefore dismissed. An order reflecting this decision is in PR516939.

COMMISSIONER

Appearances:

D Victory forStephen Waller.

M Ritchie for TCP Pty Ltd.

Hearing details:

2011.
Brisbane:
15 July.

 1   Exhibit Waller 1.

 2   Attachment SWW-3 to Exhibit Waller 1.

 3   Exhibit Waller 2.

 4   Transcript PN103.

 5   Transcript PN104.

 6   Transcript PNs124-126.

 7   Transcript PN128.

 8   Transcript PNs151-153.

 9   Transcript PN224.

 10   Transcript PN261 and following.

 11   Transcript PN335.

 12   Exhibit TCP 2.

 13   Transcript PN466.

 14   Transcript PNs583-584.

 15   Transcript PN605.

 16   Transcript PN721.

 17   Transcript PNs731-732.

 18   Transcript PN737.

 19   Transcript PNs784-787.

 20   Transcript PN789.

 21   Transcript PNs796-797.

 22   Transcript PN836.

 23   Exhibit TCP 3.

 24   Transcript PN870.

 25   Exhibit TCP 4.

 26   Transcript PN925.

 27   Exhibit TCP 5.

 28   Transcript PNs953-954.

 29   Transcript PNs1000-1007.

 30   In particular see the summary of Mr Meredith’s evidence at paras [26] and [27].

 31   Exhibit TCP 3.

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<Price code C, PR516938>