Steven Foster v Lockit Systems (Aust) Pty Ltd

[2020] FWC 6627

[2020] FWC 6627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Steven Foster
v
Lockit Systems (Aust) Pty Ltd
(U2020/7824)

DEPUTY PRESIDENT SAMS SYDNEY, 9 DECEMBER 2020

Termination of employment – summary dismissal – application for an unfair dismissal remedy – Warehouse Manager for a small company – Small Business Fair Dismissal Code – breakdown in the personal and working relationship between the applicant and two Directors/Owners – refusals to comply with reasonable or lawful directions – unacceptable and disrespectful conduct – reasonable belief that the applicant’s conduct justified summary dismissal – Code complied with – no jurisdiction – application dismissed.

BACKGROUND

[1] Mr Steven Foster (the ‘applicant’) was employed by Lockit Systems (Aust) Pty Ltd (‘Lockit’, the ‘Company’ or the ‘respondent’) for over 8 years until he was dismissed on 5 June 2020. The applicant was employed as a Warehouse Manager on a salary of $1,240 for a 37.5-hour week. The respondent is engaged in the delivery, installation and maintenance of Lockit Systems Products, specifically key cabinets and ruminators. Located in Silverwater, NSW, the Company was established in 2000 by Richard and Janette Gould, who are the Company Directors. It is common ground that the Company is a small business (as defined), with five employees including Mr and Ms Gould.

[2] The applicant was summarily dismissed while on personal leave and he received the following letter that day:

‘Dear Steven,

Termination of your employment

I am writing to you about the termination of your employment with Lockit Systems (Aust) Pty Ltd. In recent weeks on many occasions you will be well aware of and a few listed below, you refused to carry out tasks that have always been part of your job.

26/5/20 1.09pm Richard Gould instructed you that there was a relocation of a key cabinet to be carried at VW Leichardt on 29/5/20. You replied ‘No can do’. When asked why you only said 'Because of the meeting' which was to be held on 28/5/20

26/5/20 Later that day Janette Gould asked if you could attend an installation of a key cabinet at VW Sydney scheduled for 27/5/20. You replied that it was not part of your job description. I warned you that it was and that your refusal to carry out the installation would be noted on your file.

27 /5/20 Richard Gould asked you to attend a lock replacement in Parramatta. You responded that it was not part of your job description. Richard Gould told you that this did not meet reasonable expectations and that this was your third warning. Your response was, "Then do what you must do."

It is noted that all three tasks listed above have been standard and integral aspects of your normal duties for the past eight years.

As a result of your refusal to carry out your work, you have caused others to have to do your work. In doing so, you have placed in jeopardy our company's capacity to continue operations. This constitutes serious misconduct under Provision 7 (iv) of the AN120513 - Storemen and Packers, General (State) Award and in accordance with the definition provided by fair work (sic), [email address provided].

Your employment is terminated as of 5/6/20.

Assuming you can present us with a Medical Certificate for 5/6/20, you will be paid 1 day sick pay. You will also be paid accrued Holiday Leave and Superannuation entitlements. Your final pay will be made promptly on return of your work uniform, fuel card, premises key and any other property belonging to Lockit Systems (Aust) P/L. You will be granted access to Lockit Systems (Aust) premises to collect personal belongings at a time convenient to Lockit Systems (Aust) PL

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call [phone number provided] or visit their website at [website provided].

Some termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.

Yours sincerely

Janette Gould
Director’

[3] On 6 June 2020, the applicant filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) seeking compensation for his alleged unfair dismissal. Unsurprisingly, in the respondent’s Form F3 reply to the application, the respondent objected to the application on the grounds the applicant was dismissed for serious misconduct and that the Small Business Fair Dismissal Code (the ‘Code’) had been complied with. It attached and relied on a completed Code checklist to that effect.

[4] The application was listed for conciliation on 17 July 2020, but was not able to be resolved. Directions, earlier issued were confirmed and a hearing date listed for 8 September 2020. The hearing was conducted remotely given the restrictions on ‘in person’ hearings due to the COVID-19 pandemic. At the hearing, the applicant represented himself and Mr and Mrs Gould represented the respondent. Neither Mr nor Ms Gould were required for cross examination.

THE EVIDENCE

[5] Both parties provided witness statements and submissions. Given that they were both unrepresented, the materials filed were understandably a mixture of evidence, opinion, submission and commentary. Doing the best I can with the filed material, I will endeavour to summarise their respective cases as follows.

Case for the respondent

[6] Mr Gould submitted that he first noticed some emerging problems with the applicant’s performance about 12 months after he commenced employment. He was resistant to doing tasks he did not want to do and complained that he had ‘2 bosses’ (Mr and Ms Gould). In September 2019, it was made clear his position reported to Ms Gould, who would be responsible for managing his performance. This proved difficult and Mr Gould witnessed the applicant’s aggressive attitude towards her, a refusal to respect her authority or acknowledge her concerns about his performance. This was particularly evident in the two meetings they had with the applicant on 14 and 28 May 2020. He continued to refuse to do his job as instructed, and caused serious operational difficulties for a small company, such as Lockit.

[7] Ms Gould stated that there was no change in the applicant’s role or duties when a draft position description was proposed in September 2019. It was simply to clarify his role and make clear what was expected. Despite this, Ms Gould said there were multiple instances of the applicant failing to perform routine tasks, such as ‘quarantining’ and labelling of client stock, unwrapping and weighing pallets, cleaning the Company vehicle and filling out the vehicle log.

[8] Ms Gould said the applicant believed it was his prerogative to decide what was and was not his job. This all came to a head when the applicant said on 26 May 2020, he would no longer carry out key cabinet repairs and installations, although he had routinely been doing this work since 2012. Three further similar refusals occurred on 27 May, 3 and 4 June 2020. The applicant sought to raise an issue about providing logistical support to the Company. The incident on 3 June 2020 involved the applicant announcing he would no longer accept work-related calls or text messages on his mobile. She believed this was a wilful intention to be disruptive.

[9] Ms Gould denied the applicant was dismissed while on light duties following a workers’ compensation claim on 20 May 2020 for a dislocated shoulder. There was no certificate of capacity provided and no doctor’s certificate to that effect. The applicant was paid one day for time off and the workers’ compensation file was closed. In any event, he was not asked to do anything too physically demanding until the applicant told her he was better on 25 May 2020.

[10] Ms Gould said that from September 2019, the applicant was given three written warnings, two formal meetings to discuss performance and multiple informal meetings and verbal warnings. He could have had no doubt his employment was at risk after and after his third warning, he said ‘Then do what you must do’. His own evidence was ‘I was continually badgered to do said tasks …’. Ms Gould claimed that whenever she raised issues with the applicant, his habitual response was to deflect, deny responsibility or blame someone else, including her. His disruptive behaviour had an ongoing negative impact on Lockit’s productivity and team morale.

[11] Ms Gould denied the applicant was dismissed while on stress leave. He took sick leave on 5 June 2020, the day he was dismissed, and did not produce a medical certificate until a week later which merely said he had an unspecified medical condition. Ms Gould observed that the applicant had a pattern of taking a sick day every six weeks, usually on either side of a weekend. 5 June 2020 was the Friday before a long weekend. As to the hospital visit, Ms Gould said she observed him showing no signs of pain and had no abnormalities from an ECG and was discharged the same day as ‘still pain free’.

[12] Ms Gould agreed that the State Award she believed applied to the applicant’s employment no longer exists, and she had been unaware of this. She had sought advice from the Fair Work Ombudsman as to any discrepancies with what he was being paid, according to the National Employment Standards.

[13] Ms Gould relied on the warning letters of 12 and 18 May 2020, and meeting minutes of the meetings of 14 and 28 May 2020. The two warning letters are annexed to this decision as Annexure ‘A’ and Annexure ‘B’ respectively.

Case for the applicant

[14] The applicant said that at no time over eight years of receiving bonuses, had any issues been raised with him about his performance. He claimed he was never aggressive or hostile towards Ms Gould, but simply wanted clarity about conflicting directions. The applicant insisted his job description did not include ‘installs and repairs’ and it was not ‘logistical’ work (organising and planning).

[15] The applicant said he never had a company mobile phone. The applicant claimed that in the meetings Ms Gould relied on, he did not receive any warning or reasons why he was dismissed. Further, he had not observed Ms Gould taking notes and she must have written them subsequently from memory. The notes were not provided to him.

[16] The applicant understood that there is no requirement for a doctor to state the reason for providing the certificate. The applicant said that there was no evidence of him taking a day off every six weeks on either side of a weekend. The applicant stated:

‘In closing, I just want to put to you that all the claims that Janette has put in her witness statement and outline of submissions in response to my submission is completely falsified. There are no supporting documents to substantiate their claims of my disrespectful, abusive and disruptive behaviour. If I was as bad as they claim, I find it impossible that I have remained in their employ for over 8 years and receiving yearly bonusses. I would like to point out that since my dismissal, my role at Lockit has yet to be filled which I still believe strengthens my belief that both Janette and Richard wanted me out of the company as I originally stated in my application. I would also like to stress the point across that both Janette and Richard have said on both their witness statements and their outline of submissions of my bad performance, but I have only received three questionable written warnings over the span of my employment.

The facts are quite simple:

• I was good at what I was doing otherwise I would not have been there for as long as I was;

• I was never abusive and for that to be even said is extremely disrespectful.’

[17] In cross examination, the applicant did not deny he refused to carry out the tasks listed in the termination letter, because they were not part of his job description. He had requested multiple times to discuss what his job was meant to be. Those tasks had been previously undertaken by Mr Gould and Mr Paul Murphy. The applicant said he was not given any opportunity to comment on the position description in September 2019. He agreed he was doing repairs and installations for eight months after this time and ‘thought it was my job’. He refused doing the jobs because it was not ‘logistics’.

[18] In answer to questions from me, the applicant said he seeks six months’ pay as compensation ‘for everything that’s gone wrong’. He commenced permanent employment 2 months later (approximately 8 August 2020).

CONSIDERATION

[19] The Code provides as follows:

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

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 the Fair Work Commission, 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.

[20] As was made clear to the parties, this decision deals only whether the applicant’s dismissal on 5 June 2020 was compliant with the Code. It must be stressed that in summary dismissal cases under the Code, it is not necessary for the Commission to find that the applicant’s conduct actually occurred, only that the employer held a reasonable belief that the conduct was sufficiently serious to justify his dismissal.

[21] On one view, it might be said that the performance issues raised by the employer do not reach the threshold of serious misconduct, where a different test, under the Code, would apply as to warnings being given and opportunities for improvement offered and taken. However, there is no doubt that the respondent regarded the applicant’s conduct as serious misconduct, presumably for a ‘significant non-compliance with a lawful and reasonable direction’; see: [2] above. I agree with that characterisation. In any event, in my opinion, be it on the summary section of the Code or the ‘Other dismissal’ section, I am satisfied the responded did comply with the Code.

[22] Accepting the respondent’s characterisation and ignoring the September 2019 circumstances, I am satisfied that post that date, the respondent was entitled to hold a belief that the applicant had failed to comply with lawful and reasonable directions to perform tasks comprehended by his role and which had been routinely performed for years. I note that even from the time the applicant first began querying his position description, he continued to perform the tasks for eight months before then announcing they were not his tasks, and he engaged in a wasted semantic exercise about the meaning of ‘logistics’. In my view, the tasks identified in the termination letter were entirely within the applicant’s position. Moreover, I do not accept the applicant’s evidence that he could not recall being asked to comment on the draft position description. I accept Ms Gould’s evidence that when asked, he said ‘It’s fine’.

[23] The summary dismissal section of the Code requires a reasonable investigation to determine whether the employer’s belief was correct. Given the many warnings, the two meetings on 14 and 28 May 2020, it cannot be seriously suggested that the applicant’s belief was incorrect, flawed or misconceived. Moreover, in cross examination, the applicant conceded his conduct; albeit offering an explanation, which I do not accept. I conclude the respondent had established a reasonable basis for its belief that the applicant’s conduct warranted summary dismissal.

[24] Although unnecessary for the purposes of this decision, the respondent was not very well informed as to the applicant’s employment terms. In addition, the chronology of events and the circumstances from September 2019 to the dismissal might have been handled better by the respondent. However, in my view, this was entirely understandable for a small business with few employees whose Owners and Directors were very much ‘hands on’ workers themselves. To the extent any procedural flaws or mistakes such as the wrong Award coverage of the applicant are relevant, Ms Gould acknowledged the errors and willingly corrected them. In any event, they would not otherwise result in any procedural unfairness issues outweighing the seriousness of the applicant’s conduct. As mentioned, the Commission need not go this far for present purposes.

[25] Lastly, I note the applicant obtained permanent employment two months after his dismissal.

CONCLUSION

[26] The Commission is satisfied that the respondent complied with the Code when it dismissed the applicant on 5 June 2020. Accordingly, there can be no unfair dismissal, pursuant to s 385 of the Act, and the Commission has no jurisdiction to determine any remedy. The application must be dismissed. I so order.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for himself.

Mr R Gould and Ms J Gould appeared for the respondent.

Hearing details:

2020.

Sydney (via Microsoft Teams)

8 September.

Printed by authority of the Commonwealth Government Printer

<PR725289>

Annexure ‘A’

Annexure ‘B’