Steven Hurford v ThyssenKrupp Elevator Australia Pty Limited

[2020] FWC 6965

[2020] FWC 6965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Hurford
v
ThyssenKrupp Elevator Australia Pty Limited
(U2020/10758)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 DECEMBER 2020

Application for an unfair dismissal remedy – dismantling of boom gate in order to exit privately operated car park while in company uniform and vehicle – valid reason for dismissal – s.387(h) considerations did not render dismissal harsh – application dismissed.

[1] Mr Steven Hurford has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, having been dismissed from his employment with ThyssenKrupp Elevator Australia Pty Limited (ThyssenKrupp) on 27 July 2020. Mr Hurford seeks compensation.

Procedural History

[2] Mr Hurford lodged his Form F2 – Unfair Dismissal Application (Form F2) on 7 August 2020. A Form F3 – Employer Response to application for an Unfair Dismissal Remedy (Form F3) filed by ThyssenKrupp was received by the Commission on 27 August 2020.

[3] A conciliation was held on 31 August 2020. The matter did not resolve so it was then allocated to me for further case management.

[4] I issued Directions on 2 September 2020 and convened a Telephone Mention on 3 September 2020.

[5] On 23 September 2020, the following material was filed and served on Mr Hurford’s behalf:

•  Applicant’s Outline of Argument; and

•  Witness Statement of Mr Hurford.

[6] On 14 October 2020, ThyssenKrupp filed and served its material comprising:

•  Respondent’s Outline of Argument;

•  Witness Statement of Mr Mark McLeod, ThyssenKrupp Victorian Service Manager, dated 12 October 2020;

•  Witness Statement of Mr Ben Italiano, ThyssenKrupp Victorian Branch Manager, dated 13 October 2020;

•  Witness Statement of Mr James Lambert, ThyssenKrupp Area Supervisor/Manager, dated 12 October 2020;

•  Witness Statement of Ms Tiffany Collins, ThyssenKrupp HR Adviser, dated 13 October 2020;

•  Witness Statement of Ms Angela Casey, ThyssenKrupp HR Adviser, dated 13 October 2020;

•  Witness Statement of Mr Charlie Castrignano, ThyssenKrupp Technician and ETU delegate dated 12 October 2020; and

•  Witness Statement of Mr Sonny Dinh, ThyssenKrupp Technician, dated 13 October 2020.

[7] On 23 October 2020, the Applicant filed and served material in reply comprising:

•  Applicant’s Outline of Argument in Reply; and

•  Second Witness Statement of Mr Steven Hurford.

[8] A Member Assisted Conciliation was held on 28 October 2020, but the matter did not resolve.

[9] The hearing was conducted via Microsoft Teams on 9 November 2020. Mr Terzic appeared on behalf of Mr Hurford and Mr Murray appeared for ThyssenKrupp.

Background

[10] Mr Hurford began working for ThyssenKrupp in April 2015 as a lift mechanic.

[11] As its full name suggests, ThyssenKrupp install and maintain lifts, moving walks and escalators.

[12] It is not disputed that on Saturday 25 July 2020, Mr Harford unbolted and removed a boom gate in a client’s car park in order to exit the car park in his work vehicle marked with ThyssenKrupp’s logos. The boom gate belonged to the owner of the car park.

[13] On arriving at work on Monday 27 July 2020, Mr Hurford was notified by text to attend a meeting which occurred at about 7.15am. ThyssenKrupp was prepared to allow Mr Hurford to have a support person present but nobody was available. At the meeting, Mr Hurford was given an opportunity to give his account of what had taken place on Saturday 25 July 2020. The interviewers then stepped out to discuss his responses with a Human Resources staff member and it is said that ThyssenKrupp determined that the conduct was unacceptable and made the decision to terminate Mr Hurford’s employment. Mr Hurford was then advised that his conduct was unacceptable and dismissed with pay in lieu of notice.

[14] In the Notice of Termination of Employment Letter dated 27 July 2020 given to Mr Hurford, ThyssenKrupp set out the basis for its decision, as follows:

“Dear Steve,

Notice of Termination of Employment

I am writing to you to confirm your discussion with myself and Ben Italiano, Branch Manager - VIC on 27 July 2020 about your recent conduct.

At this meeting, some serious concerns were discussed with you about your recent conduct on 25 July 2020 where you dismantled a parking boom gate at the premises of SECURE parking, whilst working and representing ThyssenKrupp Elevator Australia (The Company). You explained that you removed the fixture to leave the premises as the machine was not in working order. You were advised that because you proceeded to do this without permission and/or consultation with your supervisor prior to doing so, and you left the site without re-assembling the gate and/or before consulting your supervisor, this has caused serious concerns about your lack of regard for the consequences of your actions and the property’s security measures. This is considered to be a form of negligence of SECURE’s property and equipment – especially in consideration of our commercial relationship with SECURE.

This meeting follows previous discussions with you on 29 June 2020, 15 October 2019, and 13 December 2017 where you were counselled and warned about your misconduct and deficiencies relating to your work on a number of occasions including serious safety breaches. You were also given formal warning letters on the above dates. Specifically, the warning letters issued on 29 June 2020 and 15 October 2019 indicated that your employment may be terminated if you were unable to demonstrate consistent satisfactory work at an acceptable level.

You have been advised that your actions have the potential to adversely affect the viability and profitability of our business and that this has led to the loss of trust and confidence in your ability to carry out the requirements of your position with the company. As such, The Company has carefully considered the issues past and present, including the responses you have provided on each occasion including today. It is with regret to confirm, that following such consideration, The Company has decided that your conduct is inconsistent with the continuation of your employment contract and has decided to terminate your employment based on the grounds of failing to meet the required expectations of your position.

Your employment will end immediately. Based on your length of service, you are entitled to five (5) weeks of notice of termination of employment. You are not required to work out your notice period and you will be paid this amount in lieu of notice. Along with this, you will also receive your outstanding leave entitlements.

If you have any enquiries in relation to this matter, please contact me.

Yours sincerely,

Mark Mcleod” 1

Initial matters to be considered

[15] There is no dispute between the parties, and I am satisfied, in relation to the four matters referred to in ss.396(a)-(d) of the Act, as follows.

[16] Firstly, Mr Hurford’s application was made within the 21-day period required by s.394(2) of the Act (s.396(a) of the Act).

[17] Secondly, there is no dispute that Mr Hurford is a person protected from unfair dismissal as defined by s.382 of the Act in that he is an employee who has completed a period of employment of at least the minimum employment period, and the sum of his annual rate of earnings and such other amounts is less than the high income threshold (s.396(b) of the Act).

[18] Thirdly, as to whether this matter involves a dismissal that was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), it was not in dispute and I find that ThyssenKrupp is not a small business employer within the meaning of s.23 of the Act, having had 15 or more employees at the relevant time. As such, I am satisfied that the Small Business Fair Dismissal Code does not apply.

[19] Fourthly, neither party suggested this case involves a dispute as to whether the circumstances involved a genuine redundancy and I find this to be the case (s.396(d)) of the Act).

Section 385 – Was Mr Hurford’s dismissal unfair?

[20] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 of the Act provides the following:

“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.”

Section 385(a) – Was Mr Hurford dismissed?

[21] There was no dispute, and I am satisfied, that Mr Hurford was dismissed within the meaning of s.386(1) of the Act.

Section 385(c) – Small Business Fair Dismissal Code

[22] As outlined in paragraph [18] above, s.385(c) of the Act does not apply.

Section 385(d) – Genuine redundancy

[23] As outlined in paragraph [19] above, s.385(d) of the Act does not apply.

Section 385(b) – Harsh, unjust or unreasonable

[24] The criteria I must consider when required to assess whether a dismissal was harsh, unjust or unreasonable, within the meaning of s.385(b) of the Act, are set out in s.387 of the 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.”

[25] I am under a duty to consider each of these criteria in reaching my conclusion and will do so below. 2

Was there a valid reason for dismissal relating to Mr Hurford’s capacity or conduct? (s.387(a))

[26] In considering whether the dismissal of Mr Hurford was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees).

[27] A valid reason need not be the reason given to Mr Hurford at the time of the dismissal. 3 The reason or reasons should be “sound, defensible and well founded”4 and should not be “capricious, fanciful, spiteful or prejudiced”.5

[28] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 6 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).

[29] ThyssenKrupp submits that Mr Hurford’s dismissal followed a series of disciplinary matters and safety breaches, and that he had been issued with three prior written warnings. It says two of these warnings were final warnings, one of which was issued only a month prior to the Applicant’s dismissal. The reason for the dismissal that was given to Mr Hurford in the letter of termination dated 27 July 2020 was conduct that was inconsistent with the continuation of his employment contract and his failure to meet the required expectations of his position. This is therefore a case in which it is asserted that there was a valid reason for Mr Hurford’s dismissal related to his conduct.

First incident – open lift doors

[30] In December 2017 Mr Hurford received a written warning for leaving lift doors open on site and exposing people to the risk of falling down the lift shaft. ThyssenKrupp considered this to be a serious safety breach and a failure by Mr Hurford to comply with his obligations. Two other ThyssenKrupp employees were also given warnings with respect to this safety breach.

[31] Mr Hurford says that he was not the last person on the site when the doors were left open and that when he had asked his co-workers whether everything was okay on the particular floor where the doors were left open, he had been advised by them that it was. He complains that while he had no knowledge of the safety breach, he still received a written warning. He maintains that the doors being left open was not his fault because he was not there.

[32] Mr Hurford also claims there were no standard operating procedures that required a whole crew to check off the work of everyone else and that it was the responsibility of the other two employees to close the doors as they left the site despite the fact that he was the most senior employee on site that day. The unchallenged evidence of Mr Castrignano, who acted as Mr Hurford’s support person at the disciplinary meeting held at the time, was that when it was put to Mr Hurford at the time that he was the senior employee on site, he replied with words to the effect “Ok, so I’m paid to be a babysitter.” 7

Second incident – the slinging

[33] In the second incident in October 2019, a lift was left with incorrect lifting gear and no secondary safety measure in place. The sling to hold the lift in place was rated for a safe working load of two tonnes but the weight of the lift was in fact 2.26 tonnes.

[34] Mr Hurford says:

•  he had no knowledge of the weight of the lift before he slung it;

•  he was under pressure from the client and management to complete the work;

•  there was a shortage of the rail clamps equipment, which he could have used as a back up to support the weight of the lift; and

•  there was no specific Safe Work Method Statement for this job.

[35] Further to the sling that was used, the lift’s “Governor” had not been engaged. Mr Hurford’s position was that this was not his responsibility because the Governor was in the pit below and he was working on the roof of the lift. Mr Hurford complains that he was the only one warned over this incident even though there were several others on the site doing the job.

[36] ThyssenKrupp’s position was that as Mr Hurford was the rigger charged with securing the lift, he was responsible for the Governor and that it was Mr Hurford’s responsibility, as the most advanced rigger and technician on site, to make sure all safety was in place. 8 Mr Italiano said that as Mr Hurford was responsible for the rigging, he was given the warning.

[37] Mr Italiano also says that there is no excuse for not performing work safely 9 regardless of pressure being placed by a client to complete the work as quickly as possible. Further, he says that there was a base set of Safe Work Method Statements that would have applied for rigging cars.10

Third Incident – sleeping in his work vehicle – June 2020

[38] Mr Hurford says that on the day in question day he was part of a team of four employees who were on site and although he had woken up feeling unwell, he thought he would feel better as the day went on. He says as it turned out, his condition got worse and with a headache as the day progressed, he advised his fellow workers that he was going to sit in the car. He says he fell asleep in his work vehicle (prominently marked with Thyssenkrupp signage) and then resumed work for the rest of the day. Mr Hurford thought he would be doing the company a favour by minimising his time away from the job.

[39] In his statement, Mr Hurford said he rested for about an hour. In oral testimony, he stated variously that he was asleep for half an hour, 11 for “a little bit”12 and that he was in the car for about an hour, even if he did not sleep for that long.13 He denied that he previously stated that he was asleep for a couple of hours despite Mr Castrignano’s evidence that this is what Mr Hurford admitted in the disciplinary meeting held after the sleeping incident.14 Mr Dinh’s evidence that Mr Hurford kept walking on and off the job all day and sleeping was neither challenged by Mr Hurford nor under cross examination.

[40] Mr Hurford confirmed that two weeks after the incident, he was given a warning for sleeping in his car and not recording the hour he spent in his car as sick leave. He says that he was told during the disciplinary meeting that he should have informed his supervisor of his condition. Mr Hurford accepts this but says that he just did not think of it at the time.

[41] Mr Italiano says that the company allocates a certain number of people on a job for it to be safe such that it needs to be informed if someone is not working. 15 Further, Mr Italiano says that he was concerned by this incident because Mr Hurford completed a timesheet showing a full day as being worked when this was not the case.

[42] In a Record of Interview dated 29 June 2020, signed by Mr Hurford, it was recorded that questions were raised over Mr Hurford’s “honesty and trust regarding booking hours and not notifying his supervisor when sleeping in car during business hours” and that he was “putting the company reputation at risk with a major client and his team members who were working with him.” 16

[43] In his Statement, Mr McLeod describes having given Mr Hurford the benefit of the doubt on this occasion instead of terminating his employment, despite the two previous written warnings, one of which was a final written warning. 17

[44] While Mr Hurford did not have his pay deducted, he was aggrieved nonetheless and demonstrated his displeasure at Mr Castrignano, who had again acted as his support person, by giving him “the finger” later that day and then on the following day calling him a cunt, in addition to also describing with ThyssenKrupp management in a similar way. 18 Mr Castrignano’s evidence in this regard was unshaken by cross-examination.

Final incident – 25 July 2020

[45] Mr Hurford says that on 25 July 2020 he was required to undertake repairs on a lift in a building in Queen Street in Melbourne from about 7am to 2.30pm. He had driven his company ute to a nearby privately-operated public carpark and on arrival, found that the ticket machine was not working. When he called for help through an intercom, he said he was let through the boom gate, with the intercom attendant telling him to get a ticket from another machine. Mr Hurford says that the other machine did not work either and its intercom system was not responding, despite his repeated calls. At that point, he said he then walked off to work at the Jobsite and completed his work for the day at about 2.30pm.

[46] Mr Hurford says he then returned to his ute, drove to the exit boom gate and once there, tried to contact the intercom attendant. Mr Hurford says he tried to make contact for about 10 minutes without success and so backed his vehicle up to let others behind him get out. Mr Hurford says he then read an instruction sign that said payment could be made by credit card, so he again drove to the boom gate and tried to pay with ThyssenKrupp’s credit card. The credit card was not accepted. Mr Hurford says he tried for another 10 minutes to get assistance through the intercom, but he could not make contact. Mr Hurford submits that by this stage, after a full day’s overtime, and “messing around for about half an hour”, he was getting frustrated. He says he got out of his vehicle, held up the credit card to camera and motioned that it was not working. He then unbolted the boom gate arm from the machine, put it down nearby, and drove off. Mr Hurford says that after all this, he telephoned his supervisors to report what happened. He says it was only then that he placed this call because he could not get telephone service down in the car park. 19

[47] Mr Dinh worked with Mr Hurford that day and parked in the same car park. He gave evidence that Mr Hurford firstly asked him whether he could tailgate him (Mr Dinh) out of the carpark but this did not work. He said that Mr Hurford then asked him whether he could hold the boom gate open while Mr Hurford drove out but he refused and told Mr Hurford to call the carpark.

[48] As outlined above, it was only after Mr Hurford had unbolted the boom gate arm and driven out of the car park that he contacted ThyssenKrupp management. He notified an Area Supervisor, Mr Russell Butterworth. Mr Butterworth, Mr Italiano and Mr McLeod subsequently had a conference call to discuss the matter and decided that they needed to meet with Mr Hurford to find out what had happened. 20

[49] Mr McLeod and Mr Italiano met with Mr Hurford on 27 July 2020. Mr McLeod says that after Mr Italiano had offered other ways that Mr Hurford could have dealt with the situation, such as contacting his supervisor before removing the boom gate, arranging alternate transportation, or even reattaching the boom gate, Mr Hurford conceded he had made a poor decision. Mr McLeod gave evidence that he had:

“…a strong sense that the Applicant did not understand the gravity of what he had done. He showed no remorse. I reached this conclusion in part when discussing the matter with other employees who were present for the incident and who explained that when the incident first occurred, the Applicant’s initial reaction was to try and get another employee to …hold up the gate for me so that I could exit the car park without a ticket.

To me this said that he tried to get another employee to do something wrong when there were several other reasonable options available to him. This is not the decision making process of someone who makes sensible, well-reasoned decisions ” 21

[50] Mr Italiano submits that the decision to terminate Mr Hurford’s employment was due to the seriousness of the misconduct, his poor record and the serious effect he says Mr Hurford’s conduct was having on ThyssenKrupp’s reputation and viability. 22 He also gave evidence that Mr Hurford called him an arsehole at the conclusion of the meeting.23

[51] Mr Hurford has conceded there was a valid reason for the termination of his employment but submits his dismissal was unfair on the basis of its harshness.

[52] No doubt Mr Hurford was frustrated when he could not leave the car park. However, while in the uniform and identifiable vehicle of his employer and having less than a month earlier been warned that any further instances of misconduct may result in the termination of his employment, Mr Hurford dismantled a significant piece of private property and drove off, leaving the boom gate securing access to a car park in a disabled state, with reckless indifference to what would become of it or the consequences for the security of the car park operator’s premises and the other vehicles parked there. Mr Hurford had also previously attempted to tailgate a colleague out of the car park and then tried to persuade that same colleague to raise the boom gate and hold it open so he could drive out. What Mr Hurford could and should have done instead was call his employer before acting recklessly. It matters not that the car park operator made no complaint. This was a petulant, anti-social course of conduct by someone old enough and experienced enough to know better. It was a decision Mr Hurford consciously made and there was no excuse for not contacting his supervisor in advance. I am satisfied there was a valid reason for Mr Hurford’s dismissal based on the final incident.

Notification of the valid reason (s.398(b))

[53] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 24 in explicit terms,25 and in plain and clear terms.26 In Crozier v Palazzo Corporation Pty Ltd27 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“[73] 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 170(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.”

[54] While there was a valid reason for his dismissal, I must now examine whether the reasons put to Mr Hurford were in the requisite manner before the decision was made to terminate him. 28

[55] ThyssenKrupp submits that Mr Hurford was notified of the reason for his dismissal during the meeting on 27 July 2020. This is not challenged by Mr Hurford and I am satisfied this is the case.

Opportunity to respond to any reason related to capacity or conduct – s.387(c)

[56] Ordinarily, 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 person. 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. 29

[57] The unchallenged evidence of Mr Italiano is that it was put to Mr Hurford that his conduct in removing the boom gate was unacceptable and that because he was in a company vehicle marked with ThyssenKrupp signage, his actions were potentially damaging to ThyssenKrupp’s reputation. It is not disputed and I find that Mr Hurford was given an opportunity to respond to the concerns of ThyssenKrupp at the meeting on 27 July 2020 before the decision to terminate his employment was made.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[58] 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.

[59] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 30

[60] This consideration is irrelevant in this case because the evidence before me is that there was no unreasonable refusal by ThyssenKrupp to allow Mr Hurford a support person at the discussion relating to his dismissal.

Warnings regarding unsatisfactory performance – s.387(e)

[61] As Mr Hurford was not terminated on the basis of unsatisfactory performance, this factor is not a relevant consideration in this case.

Impact of the size of the Respondent on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[62] I do not consider the size of ThyssenKrupp to have been a relevant factor in this case (s.387(f)) and have noted that ThyssenKrupp has an in-house Human Resource Management specialists, such that s.387(g) of the Act does not apply.

Other relevant matters – s.387(h)

[63] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[64] In submitting his termination was harsh, Mr Hurford says it has resulted in him suffering considerable hardship in financial terms and that despite his years of experience as a lift technician, he had (as at the date of the hearing) been unable to secure new employment. Mr Hurford says that he was proficient and competent in the essential features of his position and that the first two and a half years of his seven years of service with ThyssenKrupp were incident-free. He claims the incidents leading to his dismissal were the result of “rotten luck” and “misjudgement” rather than deliberate misconduct and reckless misadventure. 31 Mr Hurford also says that his dismissal has placed him and his family at risk of significant personal hardship, citing the difference between what he had been earning in his employment at ThyssenKrupp compared with the social security benefits he has been able to access since his termination.32

[65] Mr Hurford submits that in relation to the first incident he was guilty by his association with two negligent colleagues and that it is unfair to extend blame to him for something the others did. 33 He further says that he was entitled to rely on their assurances at the time that everything was in order. ThyssenKrupp advised that all three employees were considered responsible for the incident and Mr Hurford was the more senior employee on the job. It submitted that blaming the other employees is an example of Mr Hurford not taking his own responsibilities seriously.

[66] In relation to the second incident, Mr Hurford submits he was rushed and hurried along, although he concedes that he could have handled the situation in a better way. He submits that even when safety is paramount, confronting authority and calling a halt to a job can be difficult. He also points to there having been no rail clamps available and that he was not in a position to activate or trip the Governor. It was submitted by ThyssenKrupp that Mr Hurford allowed an unsafe situation to persist and it is unacceptable that he cannot accept responsibility for it and refuses to accept the counselling and warnings that he received for the safety breaches.

[67] In relation to the third/sleeping incident, Mr Hurford submits it was unfortunate and a lapse of judgment. He admits that being asleep on the job is “a bad look”. However, he also claims he was open and honest about his conduct and acted to minimise the effect of his illness on ThyssenKrupp. While Mr Hurford concedes that it was proper that he be warned, he submits that in implying an intent to falsify, the warning went too far.  34 Mr Hurford submits that there was no attempt to deceive or mislead and that the allegation that his failing to make a notation on his timesheet is not a reflection on his honesty. Rather, he claims it was an error of judgment.35 ThyssenKrupp submit that Mr Hurford’s actions in not correcting the timesheet was not an oversight but inherently dishonest.

[68] As to the final incident, Mr Hurford submits he again found himself in a position where things were not going well. He says that in a frustrating situation he used his best efforts, and that although his actions were silly, they were understandable. Mr Hurford proffers that while he dismantled the boom gate arm, he did not destroy it and there was no dishonesty or impropriety because he was more than willing to pay for his parking. He suggests that in the absence of a complaint from the car park operator, the incident might not have been as serious as originally thought. Mr Hurford concedes that his biggest mistake was in not calling his supervisor earlier. 36

[69] Mr Hurford submits that the termination was harsh because he is a good employee, competent at his job and the termination has caused considerable hardship for him. He concedes that there was a valid reason for the termination of his employment and that none of the other factors in ss.387(b)-(g) of the Act weigh in favour of a finding that the dismissal was unfair.

[70] I accept that the dismissal has had a negative impact on Mr Hurford but I am not persuaded in the circumstances of this case, that his dismissal was harsh. Over the course of his employment Mr Hurford engaged in inappropriate and substandard behaviour on a number of occasions, failing each time to acknowledge responsibilities associated with his employment and reflect on the feedback he was given. The warnings he received seemed to have no impact on him.

[71] With the first incident, Mr Hurford was the most senior employee on the job but failed to ensure the job site was left in a safe condition. He sought to blame the two more junior employees.

[72] The second incident represented a very serious safety breach which could have had disastrous consequences. Mr Hurford was the senior rigger on that job. He was responsible for the task of securing the elevator. He did not ensure the specifications of the sling met the weight of the lift. He did not ensure there was back up for the sling. While there may have a shortage of the rail clamp equipment, this should not have been ignored. Mr Hurford should have raised this with his supervisor. As for the “Governor”, Mr Hurford took no steps to ensure it was activated or tripped. He sought to eschew his accountability as the rigger responsible for securing the lift on the basis that he was not in the elevator pit when performing his tasks. He blamed pressure from the customer for the shortcomings of the work he undertook rather than prioritising safety. The disciplinary process that followed documented that if the correct equipment was not available or perceived client pressure was at play, Mr Hurford was to escalate matters to his manager. He was issued with a final warning.

[73] With the third incident, Mr Hurford took no steps to report his inability to work a full day and yet, submitted a timesheet claiming a full day’s pay. He claimed wages for work he did not perform and he did not take any responsibility for this or make any attempt to correct the record until it was raised with him after the event. Mr Hurford was again reminded that he should immediately report matters to his supervisor and issued with a further final warning.

[74] The problem with Mr Hurford is that he consistently exhibits an inability to take responsibility for his actions and reflect on management directives arising out of them. Mr Hurford instead responds by seeking to blame others. His infantile and foul-mouthed reaction directed at Mr Castrignano and ThyssenKrupp after the disciplinary process associated with the third incident is evidence of this. Less than a month later, the final incident with the car park boom gate occurred and when it did, Mr Hurford did everything but the one thing he had been directed to do when previously warned: escalate the matter to more senior management. It is inconceivable that someone in Mr Hurford’s position that day would think that the appropriate way to respond while wearing a company uniform and driving a prominently marked Thyssenkrupp vehicle would be to dismantle and leave an important piece of private property lying on the ground, thereby rendering a premises in which other people had placed their vehicles in the expectation that they would be secure, open to all and sundry.

[75] I do not find that the matters raised by Mr Hurford as part of the consideration of s.387(h) are sufficient to render his dismissal harsh, unjust or unreasonable. In all the circumstances of this case, Mr Hurford’s dismissal was a proportionate response to his conduct on 25 July 2020 in dismantling the parking boom gate at the premises of SECURE parking.

Conclusion

[76] Having considered each of the matters specified in s.387 of the Act, I am satisfied the dismissal of Mr Hurford was not harsh, unjust or unreasonable.

[77] Accordingly, I find that Mr Hurford’s dismissal was not unfair. Mr Hurford’s application for unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

B Terzic (AMWU) on behalf of the Applicant.
D Murray (Ai Group) on behalf of the Respondent.

Hearing details:

2020.
Melbourne (via Microsoft Teams):
9 November.

Printed by authority of the Commonwealth Government Printer

<PR725724>

 1   Notice of Termination of Employment, DCB, page 37.

 2   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498.

 3   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 4   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 5   Ibid.

 6   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

 7   Exhibit R6 at paragraph 8.

 8   Transcript PN422.

 9   Transcript PN 437.

 10   Transcript PN 436.

 11   Transcript PN 165.

 12   Transcript PN 183.

 13   Transcript PN 180.

 14 Exhibit R6 at [18].

 15   Transcript PN 471

 16   Attachment “MM1” to Exhibit R1.

 17   Exhibit R1 at paragraph 16.

 18   Exhibitt R6 at [22] and [23] and PN 626 – 632.

 19   Exhibit A1 at paragraphs 28-33.

 20   Exhibit R1 at paragraph 18.

 21   Exhibit R1 at paragraphs 25 and 26.

 22   Exhibit R4 at paragraph 34.

 23   Transcript PN 494-498.

 24   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 25   Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.

 26   Ibid.

 27 (2000) 98 IR 137, 151.

 28   DCB at p14 (paras 44-45).

 29   RMIT v Asher (2010) 194 IR 1, 14-15.

 30   Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].

 31   DCB, page 10.

 32   Exhibit A1 at paragraphs 37 and 38.

 33   DCB, page 12, paragraph 8.

 34   DCB, page 14, paragraphs 14 and 15.

 35   Transcript PN 815.

 36   DCB, page 15, paragraph 20.