Steven Kujundzija v I & D Constructions Pty Ltd

[2012] FWA 7931

[2012] FWA 7931

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Kujundzija
v
I & D Constructions Pty Ltd
(U2011/11596)

COMMISSIONER GREGORY MELBOURNE, 14 SEPTEMBER 2012

Application for unfair dismissal.

Introduction

[1] This is an application alleging unfair dismissal brought by the Applicant, Mr Steven Kujundzija, under s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by I & D Constructions Pty Ltd (the Respondent), for approximately 18 months from 15 February 2010 until his employment was terminated on 30 August 2011.

[2] The Applicant appeared in person. The Respondent was represented by Mr Gerard Nelson of Australian Workplace Strategies.

[3] When the matter came on for hearing the parties agreed it be adjourned into conference to enable discussion about the appropriate way to deal with the matter. Those discussions canvassed a range of matters, however, it was subsequently agreed the matter should proceed by way of a hearing.

[4] The Applicant failed on two occasions to file and serve material in accordance with directions given. The matter was adjourned until those directions were complied with. In subsequent cross-examination the Applicant stated his failure to comply with the directions was because he did not understand what was required.

The Issue to be decided

[5] The Applicant states he was unfairly dismissed essentially because the Respondent did not have a valid reason to dismiss him. After being terminated he was provided with a Centrelink Employment Separation Certificate by his former employer. Under the heading “Reason for separation” the Certificate indicated “Shortage of work”. However, the Applicant claims the Respondent continued to take on new employees and continued to advertise employment opportunities in local suburban newspapers.

[6] The Respondent rejects the claim of unfair dismissal. It states the Applicant was dismissed because of his behaviour and work performance, most notably associated with a series of unauthorised absences from his particular worksite. The Respondent was also experiencing a downturn in work at the time the Applicant was terminated.

The Evidence and submissions

[7] The facts relied upon by the Applicant are succinct and straightforward. As indicated, following his termination he was provided with an Employment Separation Certificate. It was stamped with the Respondent’s common seal, dated 30 August 2012, and signed by Mr Ivan Filipovic a Director of the Respondent. It was tendered as Exhibit K1. Under the heading “Reason for separation” the box indicating “Shortage of work” is marked.

[8] However, the Applicant states that after he was terminated up to 50 labourers were hired by the Respondent. In cross-examination the Applicant indicated this understanding was based on discussions with “. . . Former colleagues that I worked with have told me since I've left that Ivan has hired 50 people.” 1 The Applicant also indicated in cross-examination the Respondent was continuing to advertise for employees in local suburban newspapers.

[9] The Applicant also indicated in cross-examination his net income when employed by the Respondent was around $6,000 per month or $1,500 per week. A document detailing his wage records during his 80 weeks of employment with I & C Constructions was subsequently tendered by the Respondent and marked as Exhibit A1. It indicated the Applicant’s net earnings during his employment exceeded $1,500 per week on six of the 80 weeks he was employed, although in 17 other weeks his net earnings exceeded $1,400.

[10] There were otherwise significant fluctuations in his weekly earnings. For example, in 16 weeks his net earnings were less than $1,000 per week. The Applicant indicated these fluctuations related to the amount of overtime available and to the different site and travel allowances that applied at different locations.

[11] The Applicant did not present any witnesses or other evidence in support of his application.

[12] Mr Ivan Filipovic, the Managing Director of I & C Constructions gave evidence on behalf of the Respondent. The Respondent is involved in erecting formwork on commercial building sites. It employed around 100 people at the time the Applicant was dismissed, located across eight or nine different worksites.

[13] He stated the Applicant had been absent from work on 22 occasions during his employment with the Company. He also left worksites without any prior notification on six occasions during that time. These absences from work, and the dates on which they occurred, were summarised in a document headed “Steven Kujundzija’s History” 2.

[14] Mr Filipovic indicated the Applicant was counselled on a number of occasions about his behaviour and, in particular, about leaving a worksite without notifying the appropriate supervisor. This had been carried out by the Respondent’s Site Manager, Mr Ivan Cicak. Mr Filipovic had also spoken with the Applicant about his approach and attitude at work and had also been involved in a heated argument on one occasion about how work should be performed on site. The Applicant had also been threatening and aggressive in other telephone discussions.

[15] Mr Filipovic indicated the Respondent had not employed any labourers since the Applicant was terminated, and had put off a further 24 workers late in 2011 because of the limited amount of work available. He also indicated the Respondent continuously ran advertisements in local papers seeking expressions of interest from employees who might want to work in the building industry. This advertising space was purchased in this way because the cost was discounted when the advertisements were run continuously.

[16] In regard to the Employment Separation Statement Mr Filipovic stated it had been marked “Shortage of work” as the reason for dismissal to try and assist the Applicant to claim Incolink redundancy payments, and because he wanted to assist the Applicant find work elsewhere.

[17] On the day the Applicant was terminated Mr Filipovic stated Mr Cicak attended a worksite in Pakenham to speak with the Applicant. However, the Applicant had already left the site without approval. Mr Cicak then tried to contact the Applicant but without success. After contacting Mr Filipovic to discuss the situation, and after discussions with the shop steward, it was agreed the Applicant should be terminated. A further attempt was made to contact the Applicant but this was again unsuccessful. His outstanding entitlements and the Employment Separation Certificate were subsequently forwarded to the Applicant.

[18] Mr Filipovic indicated a combination of factors had led to the Applicant’s dismissal. They centred on his work performance and the issues associated with his unauthorised absences from worksites. The business was also experiencing a downturn and a reduction in work opportunities, particularly at the Pakenham site where the Applicant was last working.

[19] In cross-examination the Applicant denied that he had left a worksite without permission. He stated if he had cause to leave a site he would always notify a foremen or leading hand beforehand. He also denied he was in the habit of not complying with directions given to him by his managers and supervisors.

The Legislation and law to be applied

Section 385 of the Act states, in part, that a person has been unfairly dismissed if Fair Work Australia is satisfied the person has been dismissed and the dismissal was harsh, unjust or unreasonable. Section 387 details the matters to be taken into account in considering whether the dismissal was harsh, unjust or unreasonable. It indicates as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[20] The obligation imposed by s.387 is clear. It was simply stated by a Full Bench of Fair Work Australia in the matter of L. Sayer v. Melsteel Pty Ltd  3 in the following terms.

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging must be taken into account.”

[21] I deal now with the present matter in the light of these considerations.

(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)

[22] I am satisfied the Respondent had a valid reason for the dismissal of the Applicant. The Respondent’s evidence indicates the Applicant had on repeated occasions left a worksite without any prior notification to his supervisor at the time. This was clearly in breach of work requirements and the induction training provided to the Applicant. The Applicant had on other occasions demonstrated a reluctance to follow work procedures. The Applicant denied the claims he had left worksites without first notifying the relevant supervisor, however, he produced no evidence to contest the Respondent’s documented evidence.

[23] The Respondent was also experiencing a downturn in business at the time, with reduced work opportunities available, although the Respondent does not seek to rely on genuine redundancy as a defence to the claim of unfair dismissal.

[24] The Applicant claims there was no valid reason for his dismissal because the Employment Separation Certificate he received indicated “Shortage of work” when this was not the case. I accept the Employer’s explanation as to why the Certificate was completed in this way. It was intended to assist the Applicant in the future in regard to Incolink payments and possible future work opportunities. In any case the Respondent indicated a number of other employees were subsequently put off after the Applicant had been terminated, and the Respondent had not employed an additional 50 labourers as claimed by the Applicant.

(b) Whether the person was notified of the reason

[25] The Applicant’s termination was directly related to his absences from his worksite. He had been previously spoken to about this behaviour. On the day of his termination the employer endeavoured to make contact with him but was unable to do so. The Applicant appeared to have done nothing to take issue with his termination until such time as he received the Employment Separation Certificate, and then decided to do so simply based on the reason given for termination in that document.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[26] The Applicant had been previously spoken to on several occasions about the absences from his worksite and about other matters related to his work performance. The employer attempted to make contact with the Applicant prior to his termination but was unable to do so. The Applicant did not seek to rely on this consideration in support of his application.

(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;

[27] There was no evidence the employer had at any stage refused any request by the Applicant to have a support person available in any discussion. Again, the Applicant did not seek to rely on this consideration in support of his application.

(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about hat unsatisfactory performance before the dismissal;

[28] The evidence of Mr Filipovic indicated the Applicant had been warned and counselled on a number of occasions about his work performance and his repeated absences from work. This was carried out by the Site Manager, Mr Cicak. Mr Filipovic also had occasion to speak with the Applicant and his evidence indicated he had also been involved in heated telephone discussions with the Applicant.

(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures following in effecting the dismissal;

[29] The evidence indicates the Respondent has around 100 employees, depending on work requirements from time to time, spread across a number of different worksites. However, the evidence clearly indicated it is not a large or sophisticated business operation and the size and nature of the business clearly had an impact on the procedures followed in carrying out the dismissal.

(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.

[30] The Respondent did not have a dedicated human resource specialist. When asked who took responsibility for HR matters it was indicated by Mr Filipovic the shop steward, apparently hired at the union’s suggestion, carried out that role. This situation and the lack of dedicated expertise in this area again undoubtedly impacted on the processes involved in the Applicant’s dismissal.

(h) Any other matters that FWA considers relevant.

[31] No matters were raised in this context. The Applicant indicated he was now self employed and whilst specific evidence was not provided it appeared he was earning a similar amount to when employed by the Respondent.

[32] In conclusion, taking into account the evidence and each of the considerations contained in s.387 I am not satisfied that the Applicant’s dismissal was harsh, unjust or unreasonable. The application is dismissed.

COMMISSIONER

Appearances:

Mr Steven Kujundzija, on his own behalf.

Mr Gerard Nelson, on behalf of I & D Constructions Pty Ltd.

Hearing details:

2012.

Melbourne:

April 19.

 1   Transcript PN205.

 2   Exhibit A2 at Attachment 2.

 3   [2011] FWAFB 7498 at [20].

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