Steve Pham v Midway Metals Pty Ltd
[2018] FWC 5723
•11 SEPTEMBER 2018
| [2018] FWC 5723 [Note: An appeal pursuant to s.604 (C2018/5468) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Steve Pham
v
Midway Metals Pty Ltd
(U2018/3326)
| DEPUTY PRESIDENT BINET | PERTH, 11 SEPTEMBER 2018 |
Application for an unfair dismissal remedy – application dismissed.
On 29 March 2018, Mr Steve Pham (Mr Pham) filed an application (Application) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed from his position as a Driver and Storeman by Midway Metals Pty Ltd (Midway).
Midway is a stainless steel supplier based in Queensland with a presence in a number of Australian states including in Malaga, Western Australia, where Mr Pham was employed.
A telephone conciliation was conducted by a staff conciliator on 3 May 2018 and a conciliation conference conducted by Commissioner Williams on 5 July 2018. The dispute between the parties could not be resolved.
On 9 May 2018 directions were issued to the parties to file materials in advance of the hearing of the Application (First Directions). The First Directions required Mr Pham to file an outline of submissions, any witness statements and any documentary evidence he relied on in support of his Application, by 5 June 2018. The First Directions required Midway to file its materials in response by 26 June 2018.
On 4 June 2018, 9 June 2018, 17 June 2018, 24 June 2018, 1 July 2018 and 3 July 2018 Mr Pham filed various documents.
On 25 June 2018 Midway filed various documents.
On 9 July 2018 the Application was allocated to Deputy President Binet. In considering whether a hearing would be the most effective and efficient way to resolve the matter, the circumstances and wishes of the parties were taken into account. The Application was ultimately listed for hearing and determination by way of a Determinative Conference on Friday 27 July 2018.
On examination of the material filed by the parties pursuant to the First Directions, it was not clear how a significant portion of the materials were relevant to the issues to be determined. Given that the parties had failed to file material which did address the issues to be determined, directions were issued for the parties to file additional materials. To assist the parties with this task, the parties were also provided with a checklist of the issues to be addressed at the Determinative Conference and a guide to the calculation of compensation. The parties’ attention was also drawn to the materials available on the FWC website.
Notwithstanding this assistance, the evidence and submissions filed in advance of the Determinative Conference and the subsequent evidence and submissions made at the Determinative Conference contained significant gaps. Mr Pham was self-represented and gave evidence on his own behalf. He did not call any other witnesses. Mr Shaun Stewart (Mr Stewart), Midway’s General Manager, represented Midway at the Determinative Conference, and was Midway’s sole witness. Mr Stewart is based in Brisbane and did not witness first-hand many of the events which led to Mr Pham’s dismissal. Neither party cited any authorities in support of their respective oral and written submissions.
Background
Mr Pham commenced employment with Midway as a Driver and Storeman on 23 January 2013. During the course of his employment he was issued with a series of oral and written warnings. Mr Pham disputes the validity of some of these warnings.
On 5 February 2018, he was issued with a Notice of Termination informing him that he had been dismissed from his employment with Midway effective 12 March 2018.
Midway rely on only seven written warnings issued between March 2017 and February 2018, from among the oral and written warnings that were issued to Mr Pham throughout his employment, as the grounds for Mr Pham’s dismissal.
28 March 2017 Written Warning
On 28 March 2017, Mr Pham received a first written warning for telling his supervisor to “shut the f**k up” when his supervisor told him that he should not be having a coffee break at the start of a shift for which Mr Pham was being paid penalty rates.[1]
Mr Pham concedes that he made coffee immediately after commencing his shift and that he was told by Mr Cann to start work instead. Mr Pham also concedes that he continued to make his coffee after being instructed not to. Mr Pham complains that Mr Cann tried to grab the mug from him and vigorously criticised Mr Pham for his behaviour. Mr Pham concedes that he did use the phrase he was alleged to have used, but says that he was prompted by Mr Cann’s efforts to wrest the cup from his hand. Mr Pham points out that Mr Staltari directed Mr Cann to apologise and that this is acknowledgement that Mr Cann’s conduct was inappropriate.[2]
Midway say that Mr Pham had previously been verbally counselled on numerous occasions for turning up to work at his start time and proceeding to make coffee rather than commencing work. Midway do not dispute that Mr Cann removed the cup from Mr Pham’s hands and put it down but they say that Mr Cann then walked away and that Mr Pham followed him aggressively arguing with Mr Cann and using expletives. Midway agree that Mr Cann was counselled for endeavouring to remove the cup from Mr Pham’s hands and advised as to how he might better manage employees refusing to comply with lawful directions. Midway say that notwithstanding this, Mr Pham’s continued refusal to comply with a lawful direction to commence work on time, his aggressive and his argumentative response to counselling and the use of profane language justified the written warning.[3]
Mr Pham acknowledged the warning by signing the Record of Interview.[4] During the Determinative Conference, Mr Pham indicated it was his practice to sign the Record of Interview if he agreed the warning was appropriate.[5]
It is not unreasonable for an employer to expect employees to commence work at the start of their shift. There is no allegation that Midway employees were denied their lawful rest breaks. There is no evidence before me to explain why it would be necessary for Mr Pham to take a rest break at the commencement of his shift or that Mr Pham was unaware that his employer required him to commence work immediately. Mr Cann should not have forcibly removed the cup from Mr Pham’s hands and was appropriately cautioned for his conduct. However, Mr Cann’s behaviour does not detract from the fact that Mr Pham refused to follow a lawful and reasonable direction to commence work immediately. It might provide a context for Mr Pham’s usage of profanities but does not excuse them. Nor does it provide an excuse for Mr Pham’s extended argumentative engagement with Mr Cann.
15 May 2017 Written Warning
On 15 May 2017 Mr Pham received a first and final written warning for a physical altercation with another employee.[6] The other employee involved in the incident also received a first and final warning.[7] Mr Pham says that he did not initiate the violence but agrees that the first and final warning was appropriate in the circumstances.[8]
28 July 2017 Written Warning
On 28 July 2017 Mr Pham received a first written warning for leaving a company vehicle outside when it should have been left inside the warehouse before his departure after previously being given a verbal warning in relation to the same conduct.[9] Mr Pham concedes that other employees had been issued with written warnings in relation to the same conduct. Mr Pham concedes that the warning was warranted in the circumstances.[10]
14 November 2017 Written Warning
On 14 November 2017 Mr Pham received a first written warning for failing to deliver a customer order. Midway assert that Mr Pham was aware of the order because he included it on his van delivery sheet, the log of items to be delivered that day. According to Midway, Mr Pham chose to collect gas rather than make the delivery and lied to the Warehouse Manager in telling the Warehouse Manager there were no further deliveries required that day. Midway assert that Mr Pham had made similar errors in the past and had been verbally counselled about such errors. A copy of the van delivery sheet was annexed to the warning.[11]
Mr Pham concedes he included the items on his delivery sheet but says that the particular order docket in question had been placed upside down in the dispatch tray so he concluded that the order did not require delivery on that date given it was late in the day. When the matter was raised with him the following day Mr Pham says he told Mr Cann that it was an unwritten rule that orders got turned over in the dispatch tray if they were not ready for delivery. He also says that he told Mr Cann that he intended to take control of the dockets in the dispatch tray and that no one else would be permitted to touch them. Mr Pham says that Mr Cann got upset with him and told him that he was not to dictate who could touch the delivery tray. Mr Pham says that Mr Cann ought to have been aware that Mr Pham had not delivered the order because the pallet with the order was still sitting in the warehouse and that Mr Cann should have raised that with Mr Pham that same day.[12]
15 November 2017 Written Warning
On 15 November 2017, Mr Pham received a first written warning for failing to call his supervisor to advise of absence for personal reasons contrary to a direction to do so. According to Midway, all employees had been directed to contact their supervisor on their supervisor’s mobile telephone in the event they were unable to attend work due to illness. On the particular occasion Midway alleged that Mr Pham called the Office rather than his supervisor and was specifically instructed to call his supervisor. Midway allege that when this was raised with Mr Pham, he claimed that he had tried to call his supervisor, however a review of the relevant telephone records revealed that he had not done so. A copy of the telephone record was attached to the warning.[13]
Mr Pham alleges that this warning is incorrectly dated and that he was in fact on sick leave on 15 November 2017. Mr Pham concedes that he called the Office rather than his Supervisor; however says that he had done so in the past without consequence. He asserts that he chose to contact the Office because Mr Staltari had a habit of questioning the authenticity of sick leave and Mr Pham found this intimidating. Mr Pham says that when he said that he had tried to call Mr Cann, he meant that he intended to call him, not that he had actually called him.[14]
8 December 2017 Written Warning A
On 8 December 2017 Mr Pham received a first written warning for failing on the previous day to comply with a direction to ensure that all materials were loaded for delivery prior to departure. Midway say that the direction was in writing and was displayed on the warehouse wall as a consequence of multiple previous incidents of Mr Pham failing to ensure materials were loaded prior to delivery, loaded in the correct order for delivery, and delivered in the correct sequence.[15]
Mr Pham concedes that he overlooked loading some materials. In his defence Mr Pham says that the day was busy, the load complex, that mistakes happen from time to time and that the customer was happy to have the materials delivered the following day. Mr Pham says he was also unaware of the written direction.[16] Midway assert that the written direction was issued for Mr Pham’s benefit in response to repeated failures by him to ensure materials were loaded prior to delivery, loaded in the correct order for delivery and delivered in the correct sequence.[17]
8 December 2017 Written Warning B
Mr Pham says that he felt that having received a written warning on 14 November 2017, another on 15 November 2017 and then a third on 8 December 2017, that he was being unfairly targeted by Mr Staltari. He therefore phoned Mr Stewart to raise this concern with him.[18]
Mr Stewart says that he discussed each of the warnings with Mr Pham. According to Mr Stewart, he asked Mr Pham whether he had forgotten to load items on the occasion for which he received the written warnings and on previous occasions. Mr Stewart alleges that Mr Pham agreed that he had. Mr Stewart says that he also asked Mr Pham whether he was aware of the instruction that employees were to call their Supervisor on the Supervisor’s mobile telephone if the employee was not fit for work. Mr Stewart alleges that Mr Pham acknowledged that he was aware of this instruction. Mr Stewart says that he then explained to Mr Pham that in his view the warnings were appropriate, so that Mr Pham was made aware of where his performance was lacking and what was required of him in future.[19]
Mr Stewart alleges that Mr Pham continued to debate the issue of the warnings with him becoming increasingly argumentative and aggressive. Mr Stewart says that Mr Pham repeatedly blamed other people for the events leading to the issuing of the warnings. According to Mr Stewart, after his telephone conversation with Mr Pham ended, Mr Pham continued to behave in an aggressive and argumentative manner with the local Perth staff for the balance of the day.[20]
Mr Pham was subsequently issued with a final written warning on 8 December 2017 for being argumentative and abusive to fellow employees. Midway assert that Mr Pham had previously been warned on numerous occasions about being argumentative and disrespectful toward his colleagues.[21]
2 February 2018 Written Warning
Mr Pham and two of his colleagues were asked to arrive earlier than normal on 2 February 2018 to place stock away in racks. Mr Pham’s colleagues teamed up together and began placing stock away using the forklift.
On his arrival, Mr Pham told his two colleagues and the Warehouse Supervisor, Mr John Cann (Mr Cann), that they needed all hands on deck, including Mr Cann, to put stock away. Midway say that Mr Cann reminded Mr Pham that he normally started early so he could attend to his administrative duties and that Mr Pham and his colleagues had been called in early on overtime to put the stock away while Mr Cann attended to his normal administrative duties.[22]
Midway say that Mr Pham was instructed by Mr Cann to start putting stock away. According to Midway, Mr Pham ignored these instructions and instead argued with Mr Cann, insisting that Mr Cann should assist him with the task rather than have Mr Pham perform it alone. Midway assert that the task was one that Mr Pham could perform safely and competently by himself, and had done so in the past.[23] Midway say that Mr Cann demonstrated to Mr Pham how Mr Pham could safely begin putting stock away by himself.[24] Midway say that Mr Pham continued to behave in an aggressive way to other staff members until he eventually commenced his delivery run.[25]
Mr Pham insists he could not complete the task by himself, or if he did, it would take a long time for him to do so. Mr Pham acknowledges that he believed that Mr Cann should help him rather than attend to his administrative duties and that he indicated this to Mr Cann. According to Mr Pham, when he said this to Mr Cann, Mr Cann began shouting and cursing at him. Mr Pham alleges that in the midst of his rage Mr Cann threw company property to the floor, damaging it in the process. Mr Pham concedes that he became argumentative, although maintained that he did not initiate the argument.[26] Mr Pham says that he told Mr Cann that he intended to report Mr Cann for his conduct. According to Mr Pham, Mr Cann made a complaint to Mr Staltari about Mr Pham’s refusal to put the stock away as a pre-emptive measure to avoid adverse consequences if Mr Pham carried through on his threat to report Mr Cann for damaging company property.[27]
Midway say that an investigation was conducted into the allegations against Mr Pham and the allegations Mr Pham made against Mr Cann. Midway assert that the witnesses to the event deny that Mr Cann behaved inappropriately and corroborated the allegations about Mr Pham’s conduct.
Later on Monday 5 February 2018, Mr Staltari contacted Mr Stewart and requested that Mr Stewart dismiss Mr Pham on the grounds that Mr Pham was repeatedly refusing to follow simple directions and was becoming increasingly aggressive to other staff. [28]
Mr Stewart says that he and Mr Staltari agreed that it was appropriate in the circumstances to dismiss Mr Pham given that Mr Pham had previously been warned verbally and in writing on numerous occasions to improve his interactions with other staff and to comply with lawful directions he was given by his supervisors. Mr Stewart and Mr Staltari were concerned that despite providing Mr Pham with clarification about his responsibilities and numerous chances to improve, that Mr Pham was failing to take responsibility for his actions and in fact the inappropriate behaviour was becoming more frequent and aggressive in nature. [29]
At around lunch time on 5 February 2018, Mr Staltari called Mr Pham to a meeting with him. Mr Pham says that Mr Staltari placed a document entitled Termination of Employment on the desk in front of him. Mr Pham says he asked Mr Staltari what he had done and says that Mr Staltari informed him that his conduct on the previous Friday was unacceptable. [30]
The documentation provided to Mr Pham stated that concerns about Mr Pham failing to follow lawful directions and being argumentative with colleagues and supervisors had been previously raised with him and written warnings issued on 8 December 2017. The document went on to state that as Mr Pham had failed to demonstrate adequate improvement in relation to these areas of performance that his employment would be terminated with five weeks’ notice on 12 March 2018.[31]
Mr Pham says that he tried to explain to Mr Staltari that he did not force Mr Cann to help him but merely suggested that he do so. He also says he told Mr Staltari that he wished to make a formal complaint about Mr Cann’s conduct. Mr Pham says that he asked Mr Staltari if he could call one of his co-workers who was present on the Friday morning to corroborate his story. Mr Pham says that Mr Staltari insisted that he had already spoken to the co-worker. Mr Pham then insisted that Mr Cann join the meeting. Mr Pham says that Mr Cann did so and that Mr Cann confirmed that Mr Pham had refused to work as directed and Mr Cann denied that he had intentionally damaged company property.[32]
By Mr Pham’s own account the meeting became heated as Mr Pham insisted that his version of events was accurate. Mr Pham says that eventually he left the meeting and went to see a doctor.[33]
Later on 5 February 2018, Mr Pham contacted Mr Stewart. Mr Stewart says that Mr Pham told him that he had no opportunity to explain his actions to Mr Staltari and asked that Mr Stewart reverse Mr Pham’s dismissal. Mr Stewart says that he told Mr Pham that he was aware that Mr Staltari had in fact spoken to him. Mr Stewart says that he went on to ask Mr Pham if he had argued with his supervisor and refused to put the stock away and that Mr Pham confirmed he had done so. Mr Stewart says that when questioned, Mr Pham acknowledged that he had been asked in the past to put stock away in a similar manner in the past and had done so without misadventure.[34] Mr Stewart says that notwithstanding these admissions, Mr Pham continued to dispute his dismissal. [35] According to Mr Stewart, this reinforced his view that it was appropriate that Mr Pham be dismissed and he informed Mr Pham accordingly.[36]
Midway say that on or about the following day, Mr Pham informed Midway that he was sick and provided a medical certificate for a week’s absence. According to Midway, during the course of the five weeks’ notice period provided to Mr Pham, he provided four separate medical certificates from four different medical practices.[37]
Mr Pham’s dismissal took effect on 12 March 2018. He was paid his accrued entitlements up until this date.[38]
Is Mr Pham protected from unfair dismissal?
Mr Pham maintains that he was unfairly dismissed and seeks an order that he be reinstated and compensated the lost remuneration between the date of his dismissal and his reinstatement.[39]
Section 396 of the FW Act requires the FWC to decide four preliminary issues before considering the merits of an application for unfair dismissal:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
I am satisfied that the Application was made within the 21 day period required by subsection 394(2) of the FW Act.[40] I am also satisfied that the Small Business Fair Dismissal Code, which applies to employers of fewer than 15 employees, does not apply to Mr Pham’s dismissal.[41] There is no assertion that Mr Pham’s dismissal involved redundancy.[42]
Section 382 sets out the circumstances that must exist for Mr Pham to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
There is no dispute, and I am satisfied, the Mr Pham has completed the minimum employment period,[43] and is covered by the Storage Services and Wholesale Award 2010.[44] Consequently, I am satisfied Mr Pham was protected from unfair dismissal.
Was Mr Pham’s dismissal unfair?
Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC 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.”
It is not contested, and I am satisfied, that Mr Pham was dismissed for the purposes of section 385(a) of the FW Act and that his dismissal was not a case of genuine redundancy, nor subject to the Small Business Fair Dismissal Code.[45]
Was Mr Pham’s dismissal harsh, unjust or unreasonable?
Having been satisfied of each of subsections 385(a), (c) and (d) of the FW Act, it is necessary to determine whether Mr Pham’s dismissal was harsh, unjust or unreasonable. The criteria to be taken into account when assessing whether a dismissal was harsh, unjust or unreasonable are set out at section 387 of the FW Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”
The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
To determine whether Mr Pham’s dismissal was, in the circumstances, harsh, unjust or unreasonable, it is necessary to consider the criteria set out in section 387 of the FW Act.
Did Midway have a valid reason for dismissing Mr Pham? (s.387(a))
An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal. A valid reason is one which is ‘sound, defensible and well-founded’[46] and not ‘capricious, fanciful, spiteful or prejudiced.’[47] The reason or reasons relied upon by an employer as a valid reason for dismissal need not be the ones given to the employee at the time of the dismissal.[48] The requirement to be reasonable must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.[49]
Mr Pham was dismissed with five weeks’ notice for failing to follow lawful directions and being argumentative with colleagues, following a string of written warnings. The validity of at least two of seven warnings upon which his employer relied to dismiss him are not contested by Mr Pham. In relation to the balance of those seven warnings, while Mr Pham seeks to provide a context for the warnings, he does not deny the occurrence of the actual conduct for which the warnings were issued. I am not satisfied that the context provided by Mr Pham provides an adequate excuse for his conduct.
The directions given to Mr Pham by his employer, of which Mr Pham refused to follow, do not appear unreasonable. For example, it is not unreasonable for an employer to expect employees to commence work at the start of their shift. There is no allegation that Midway employees were denied their lawful rest breaks. There is no evidence before me to explain why it would be necessary for Mr Pham to take a rest break at the commencement of his shift or that Mr Pham was unaware that his employer required him to commence work immediately. With respect to the incident on 28 March 2017, Mr Cann should not have forcibly removed the coffee cup from Mr Pham’s hands and was appropriately cautioned for his conduct. However, this does not detract from the fact that Mr Pham refused to follow a lawful and reasonable direction to commence work immediately upon starting his shift. It might provide a context for Mr Pham’s usage of profanities but does not excuse them. Nor does it provide an excuse for Mr Pham’s extended argumentative engagement with Mr Cann.
Directing an employee to complete their duties in a diligent manner is not unreasonable. With respect to the first written warning issued on 8 December 2017, Mr Pham does not deny that he did in fact fail to load the vehicle correctly. The fact that other employees may make similar mistakes does not detract from an employer’s entitlement, and in fact statutory obligation, to bring to an employee’s attention, relevant deficiencies in the employee’s performance or conduct.
Despite Mr Pham’s assertion that he was unfairly targeted by his employer, there is no evidence before me to establish that other employees were not appropriately performance managed or that Mr Pham was subjected to disciplinary consequences for any reason other than deficiencies in his performance or his conduct.
Mr Pham sought to minimise the severity of the events for which he received disciplinary warnings. Some of these events might have otherwise gone undisciplined and undocumented; instead, Mr Pham resisted efforts of management to give him direction. On his own evidence, he has displayed a pattern of insisting that tasks be performed according to his preference rather than his employer’s reasonable and lawful direction. For example, that Mr Pham’s supervisor assist him perform his duties in unloading stock or that he be permitted to take a coffee break immediately upon commencement of a shift. Furthermore, Mr Pham has been resistant to efforts of his employer to encourage him to comply with directions, by becoming argumentative and aggressive whenever his employer sought to raise their concerns with him.
I am satisfied that the pattern of Mr Pham’s behaviour formed a valid reason for his dismissal.
Was Mr Pham notified of the reason for his dismissal? (s.387(b))
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[50] in explicit terms,[51] and in plain and clear terms.[52] In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151, a Full Bench of the Australian Industrial Relations Commission, dealing with a similar provision of the Workplace Relations Act 1996 (Cth), stated that:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
Mr Pham had been the subject of numerous verbal and written warnings during the term of his employment. On more than one occasion he had been issued with a final written warning. On each occasion he was provided with an opportunity to respond to the allegations made against him before the warning was formalised. Mr Pham had been clearly put on notice by Midway that there were concerns about his behaviour. Specifically, Mr Pham’s tendency to refuse to comply with the lawful directions and his argumentative response to any efforts to address this failure with him. On his own evidence, Mr Pham had vigorously ventilated his response to each of the written warnings. In some cases, he had done so on multiple occasions.
Midway assert that Mr Staltari met with Mr Pham before a decision was made to terminate Mr Pham’s employment, in order to raise with Mr Pham the latest incident he was involved in. Namely, the incident of 2 February 2018 involving Mr Pham’s refusal to follow Mr Cann’s direction to put stock away and Mr Pham’s argumentative response to the direction from Mr Cann. Mr Pham asserts that he was not informed of the allegations about his conduct on Friday 2 February 2018 before the decision was made to dismiss him.[53]
Mr Pham concedes that the reasons for his dismissal were put to him in writing at the meeting with Mr Staltari around noon on 5 February 2018 when he was issued with the document entitled Termination of Employment.[54] Mr Pham also concedes that Mr Staltari explained to him why he was being issued with the document.
In the absence of any evidence from Mr Staltari or any other evidence that Mr Pham was informed that his interactions with his supervisor on the previous Friday might form the basis of a decision to dismiss him, I cannot be satisfied that Mr Pham was notified of the reasons for his dismissal (to the extent that they related to his conduct on the previous Friday) before the decision was made by Midway to dismiss him.
Was Mr Pham provided with an opportunity to respond to the reasons for his dismissal? (s.387(c))
An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[55]
Mr Pham asserts that he was not given an opportunity to respond to the allegations about his conduct on Friday 2 February 2018 before the decision was made to dismiss him.[56] Midway disputes this, but given that Midway did not call Mr Staltari as a witness, I cannot be satisfied that Mr Pham was given such an opportunity prior to the decision being made to dismiss him.
I note that Mr Pham’s own evidence is that he provided an explanation for his conduct when he met with Mr Staltari on Monday 5 February 2018. Mr Pham also ventilated his response to the grounds for his dismissal in detail to Mr Stewart after his meeting with Mr Staltari at noon on Monday 5 February 2018, and again to the business owner Mr Paul Batty (Mr Batty) in a nine page letter dated 22 February 2018.[57] This information did not cause Mr Stewart or Mr Batty to reverse the decision to dismiss Mr Pham.
I also note that on his own evidence, Mr Pham had vigorously ventilated his response to each of his prior warnings. In some cases on more than one occasion with more than one representative of the company.
Was Mr Pham unreasonably refused a support person? (s.387(d))
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. There is however, no positive obligation on an employer to offer an employee the opportunity to have a support person.[58]
Midway assert that Mr Pham was invited to have a support person present during all discussions relating to his dismissal. There is no evidence before me that Mr Pham requested that a support person attend any of the meetings he held with Midway representatives on 5 February 2018 or that such a request was denied.
I therefore find that Midway did not unreasonably refuse to allow Mr Pham to have a support person present at discussions relating to the dismissal.
Was Mr Pham given warnings regarding his unsatisfactory performance? (s.387(e))
Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.[59]
Mr Pham was issued with multiple verbal and written warnings about his performance of which seven were relied on by Midway as grounds for his dismissal. There can be no doubt that Midway made clear what their concerns were in relation to Mr Pham’s behaviour and what their expectations were. I am satisfied that those expectations were not unreasonable.
I find that Midway did warn Mr Pham about his unsatisfactory performance in clear and precise terms on multiple occasions before his dismissal.
What is the impact of the size of Midway and the presence or absence of dedicated human resources management specialist/expertise on the procedures followed? (s.387(f) and s.387(g))?
Midway have no dedicated human resource management expertise. These duties are performed by Mr Stewart as part of his responsibilities as General Manager of Midway.
Based on the materials filed as submissions and as supporting evidence, I am satisfied that the absence of dedicated human resource management or expertise in Midway’s enterprise impacted on the procedures followed by Midway in effecting the dismissal.
Are there any other relevant matters? (s.387(h))?
Section 387(h) provides the FWC with a broad scope to consider any other matters it considers relevant to the determination of whether the dismissal of an employee was harsh, unjust or unreasonable.
Mr Pham submits that his dismissal is harsh because other employees made errors in the performance of their work and they were not dismissed. Mr Pham provided a document setting out details of these alleged deficiencies.[60] In response, Midway assert that they have investigated any allegations of poor performance or misconduct amongst its workforce and where appropriate, have taken disciplinary action against those individuals.[61]
It is apparent from Mr Pham’s evidence that on occasion where another employee has been involved in an incident with Mr Pham, and that other employee has clearly behaved inappropriately, that the other employee has also been subject to disciplinary action. For example, Mr Cann was required to apologise to Mr Pham in relation to the incident in which he grabbed Mr Pham’s coffee cup[62] and the other employee involved in the physical altercation with Mr Pham was issued with a final written warning.[63]
In the circumstances, I am not satisfied that Mr Pham’s dismissal is harsh, considering Midway’s treatment of the performance deficiencies or conduct misdemeanours of other employees.
In determining whether Mr Pham’s dismissal was harsh, unjust or unreasonable, I have also taken into account the challenges his age, family responsibilities, occupation and language skills might pose for him in obtaining alternative employment. Notwithstanding these factors, and any procedural deficiencies which might exist if in fact the decision to dismiss Mr Pham was made before he was notified of the reason for his proposed dismissal and given an opportunity to respond to it, I am satisfied that Mr Pham’s dismissal was not harsh, unjust or unreasonable in the circumstances.
For a lengthy period of time, Mr Pham demonstrated an unwillingness to comply with lawful and reasonable directions from his employer. This conduct was aggravated by a persistently unreasonable argumentative response on his part to counselling by his employer. Employees are entitled, and should be encouraged to provide to their employer, an explanation for any behaviour which their employer takes issue with, however, this must be done in a professional, respectful and courteous manner. Midway made clear to Mr Pham what their expectations were with respect to Mr Pham’s work-related performance and conduct while working. These expectations were not unreasonable. Mr Pham chose not to modify his behaviour. In the end, he left Midway with little choice than to proceed to dismissal.
Conclusion
Having considered each of the matters specified in s.387 of the FW Act, I am satisfied the dismissal of Mr Pham was not harsh, unjust or unreasonable. Accordingly, I find Mr Pham’s dismissal was not unfair.
An order to this effect (PR700305) will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
S Pham, appearing on his own behalf.
S Stewart, appearing for the Respondent.
Hearing details:
2018.
Perth.
July 27.
Final written submissions:
Applicant, 31 July 2018.
Respondent, 8 August 2018.
<PR700304>
[1] Exhibit R12.
[2] Exhibit A6.
[3] Exhibit R3.
[4] Exhibit R12.
[5] Transcript PN533.
[6] Exhibit R11.
[7] Transcript PN213.
[8] Ibid PN535–542.
[9] Exhibit R18.
[10] Transcript PN532–535.
[11] Exhibit R9.
[12] Exhibit A4.
[13] Exhibit R8 and R3.
[14] Exhibit A5.
[15] Exhibit R6 and R5.
[16] Exhibit A2.
[17] Exhibit R3.
[18] Exhibit A3.
[19] Exhibit R3.
[20] Ibid.
[21] Exhibit R6.
[22] Exhibit R2.
[23] Exhibit R4.
[24] Exhibit R2.
[25] Exhibit R3.
[26] Transcript PN322–324.
[27] Exhibit A1 and Transcript PN323.
[28] Exhibit R4 and Exhibit R2.
[29] Exhibit R4.
[30] Exhibit A1 and Exhibit R1.
[31] Exhibit R1.
[32] Exhibit A1.
[33] Ibid.
[34] Exhibit R4.
[35] Ibid.
[36] Exhibit R3.
[37] Ibid.
[38] Ibid.
[39] Transcript PN 804–807.
[40] Ibid PN19–21.
[41] Ibid PN22–25.
[42] Ibid PN26–27.
[43] Ibid PN28–31.
[44] Ibid PN32–33.
[45] Ibid PN26–27.
[46] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
[47] Ibid.
[48] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373 and 377-378.
[49] Ibid.
[50] Chubb Security Australia Pty Ltd v Thomas (Print S2679) at [41].
[51] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151].
[52] Previsic v Australian Quarantine Inspection Services (Print Q3730).
[53] Exhibit A7.
[54] Transcript PN706-723.
[55] RMIT v Asher (2010) 194 IR 1, 14–15.
[56] Exhibit A7.
[57] Exhibit A1.
[58] Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].
[59] Annetta v Ansett Australia Ltd (2000) 98 IR 233 at 237.
[60] Exhibit A7.
[61] Transcript PN422-3.
[62] Exhibit R3.
[63] Transcript PN209-213.
Printed by authority of the Commonwealth Government Printer
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