Steve Varvaris v Wilson Parking Australia 1992 Pty Ltd T/A Wilson Parking

[2012] FWA 7909

[2012] FWA 7909

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steve Varvaris
v
Wilson Parking Australia 1992 Pty Ltd T/A Wilson Parking
(U2012/7787)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 14 SEPTEMBER 2012

Valid Reason - procedural fairness - termination harsh, unjust, unreasonable - reinstatement not appropriate, compensation appropriate remedy

Introduction

[1] On 7 May 2012 Mr Steve Varvaris filed an application under s.394 of the Fair Work Act 2009 (‘the Act’) against Wilson Parking Australia 1992 Pty Ltd for an unfair dismissal remedy for his dismissal on 4 May 2012. He was given pay in lieu of notice.

[2] The matter was conciliated and no settlement was reached. The matter was set down for arbitration before me. Pursuant to s.399 the matter was heard by hearing given the decision of the parties to cross examine witnesses. Written submissions and witness statements were filed, and the following witnesses gave evidence:

Mr Steve Varvaris

Mr David Nethercote

Mr Neil Frederick Goddard

[3] I have had regard to all the submissions and evidence.

Consideration of the Submissions and Evidence

Valid Reason - Section 387(a)

[4] The term ‘valid reason’ was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 1 , in relation to s.170DE of the Industrial Relations Act 1988. He said:

“Section 170DE(1) refers to a `valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is” `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’

In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s170DC.”

[5] This decision continues to be of relevance and continues to be applied.

[6] In this matter a number of alleged valid reasons for termination of employment were claimed to exist by the employer including that he ‘did not adequately perform his duties and failed to meet fundamental employment requirements such as attending work for the required number of hours, completing tasks in accordance with the requirements of his role and performing site visits at car parks at the required frequency’, ‘excessive use of a company mobile telephone that was provided for work purposes for personal calls during and after work hours’, failing to properly carry out occupational health and safety inspections, and failing to respond satisfactorily to employer concerns about his performance, including ‘implausible, unmeritorious and flippant explanations’ 2.

[7] Mr. Goddard obtained and analysed reports of the applicant’s access card usage to car parks in support of his claims about the applicant’s movements, hours of work, visits to car parks and other claims 3. When driving in and out of a car park the applicant would use a card and this usage is electronically recorded, and this electronic data was compiled and then analysed. Mr. Nethercote relied on the analysis conducted by Mr. Goddard4.

[8] However, the analysis was not tendered in evidence, nor was the methodology of that analysis fully explained. The car park access card usage data was provided to the tribunal pursuant to a subpoena, and a large number of anomalies in the data were revealed 5. For example, entry and exit data did not match up in all cases, that is, an entry might be recorded but not an exit, or more than one exit, and other anomalies. Witnesses for the employer were able to explain a limited number of these anomalies but no attempt was made to explain all of them, or to account for them with an overall explanation which justified the reliance on this material placed by the employer.

[9] The applicant gave a number of explanations for the card access data including that he regularly walked to four car parks and therefore did not use a card to access car parks because the card was only used if a car park was accessed by car 6, he accessed car parks from another car park7, some car parks did not have boom gates and will not show up on card access records, and the card data had anomalies8. He was not cross examined on these explanations which were plausible on the evidence before me. Indeed some of these explanations were accepted in part by employer witnesses9. I was left to conclude that the data could not be relied upon for termination of employment purposes, because explanations other than those advanced by the employer were reasonably open.

[10] Mr. Nethercote also relied on an analysis of the applicant’s mobile telephone accounts 10. No real contest was made with the applicant’s evidence that he used his mobile phone for private use on about two occasions a day. The applicant also explained the circumstances that led him to do this, namely that he was checking on two young daughters at home after school in an area with some social problems11. I also note that the policies relating to mobile phone use do not prohibit private use of mobile phones but provide instead for recovery of moneys for excessive usage12. No moneys were sought to be reclaimed.

[11] However, again I was not provided with the analysis of telephone calls 13, and the applicant was not cross examined on his explanations relating to these calls including that some work could be appropriately done from home, and that he was rung at home for work purposes14. Nor were the witnesses clear on what number of car park visits were required, let alone how many the applicant performed15.

[12] The applicant gave evidence that he completed the inspections by the due date on most occasions 16, and provided a detailed response to complaints about his writing of occupational health and safety reports17 which seems on the evidence before me to be plausible. There were no issues relating to the budget with the applicant’s work made known to the tribunal18.

[13] The applicant received a salary review in 2011 and received an increase 19, and Mr. Goddard accepted that his performance had been ‘satisfactory’20.

[14] The applicant was not cross examined on his evidence 21.

[15] I have read the written responses to the employer allegations during the investigation process 22. In those responses the applicant raises concerns about the accuracy of car usage records and other responses. These responses are not ‘flippant’ or otherwise concerning, rather they raise legitimate issues about the accuracy of the claims made against the applicant.

[16] Overall I cannot be satisfied on the material before me that there were valid reasons for the termination of the applicant’s employment.

Notification of Valid Reason - Section 387(b)

[17] Given the lack of a valid reason the applicant was not notified of the valid reason for termination of his employment.

Opportunity to Respond - Section 387(c)

[18] The applicant was given an opportunity to respond by meeting and in two letters, and he did respond.

Support Person - Section 387(d)

[19] The applicant was given the opportunity to have a support person present 23.

Warning about unsatisfactory performance - Section 387(e)

[20] The applicant had one warning before his dismissal about his performance 24.

Size of Business, and HR Specialist Advice - Sections 387(f) and (g)

[21] The employer had a specialist human resources function, and did not claim to be small business.

Other Matters - Section 387(h)

[22] I have taken all matters into account.

Harsh Unjust or Unreasonable

[23] In my view the applicant was not accorded a ‘fair go all round’. The termination of his employment was harsh, unjust or unreasonable.

Remedy

[24] Reinstatement was not sought in this matter, but compensation was, and reasons were given by the applicant why reinstatement was not appropriate. These were not in contest and I accept them. I have decided pursuant to ss.390-392 that reinstatement is not appropriate and that compensation is an appropriate remedy.

[25] The applicant seeks $18,307, to reflect the fact that he was out of work for 18 weeks and was given four weeks’ notice, calculated at $68,000 a year 25. The respondent put no submission on the issue of remedy26. I direct the parties to have discussions to settle the issue of compensation and advise me in one week from today’s date if they have settled that issue.

[26] If they have not settled the issue I direct the parties to file further submissions within one week of that date. I will issue a decision on compensation on the basis of the submissions filed. The submissions should address each of the factors required to be addressed in ss.390-392.

DEPUTY PRESIDENT

Appearances:

Mr G Pinchen for the applicant.

Mr G Nelson for the respondent.

Hearing details:

2012

Melbourne

6 September

 1 (1995) 62 IR 371 at 373

 2   Exhibit W1, paragraph 3

 3   Exhibit W3 paragraphs 5-20

 4   Exhibit W2, paragraphs 10-16

 5   Exhibit V4, attachments A-U

 6   PN158-168

 7   PN201-213; Exhibit V3

 8   PN226-240

 9   PN405-464; PN557-596

 10   Exhibit W2 paragraphs 19, 22, 23, 30, 31, 32

 11   PN264-282; 315

 12   Exhibit V2, Exhibit B

 13   PN550-556

 14   PN283-297

 15   PN589

 16   PN299

 17   Exhibit V2, Exhibit E, p.3

 18   PN364-365

 19   Exhibit V2, Exhibit A

 20   PN537

 21   PN318

 22   Exhibit V2, Exhibits E and G

 23   Exhibit V2, Exhibit C

 24   Exhibit W2, paragraphs 4-5

 25   PN125

 26   Exhibit W1, paragraph 75

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