Steven Rapmund v Gold Coast Go Karting T/A Slideway Gold Coast

[2014] FWC 8404

[2014] FWC 8404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Rapmund
v
Gold Coast Go Karting T/A Slideway Gold Coast
(U2014/10778)

COMMISSIONER SIMPSON BRISBANE, 24 DECEMBER 2014

Application for relief from unfair dismissal - Summary Dismissal - Alleged Serious Safety Breaches - Evidences supports conclusion that the alleged conduct occurred - Employee’s conduct was sufficiently serious to justify immediate dismissal - - Application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Steven Rapmund (“the Applicant”) who alleges that the termination of his employment with Go Karting Gold Coast Pty Ltd (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.

[2] The Applicant failed to make the Application within time as the dismissal took effect on 15 June 2014 and was filed on 11 July 2014. I issued a decision on 18 August [2014] FWC 5363 extending time for the reasons set out in that decision.

[3] Directions were issued for the filing of statements and submissions in regard to the substantive matter. The Applicant filed a one page statement a three page submission, and the Respondent filed four statements from Mr Dan Tuite, (General Manager) Mr Danial Goddard (Shift Manager), Mr Matt Gordon (Track Manager), and Mr Tim Harris the Centre Manager, as well as a three page submission prepared by Mr Cameron Wilson.

[4] After seeking the views of the parties at the commencement of the matter I decided to proceed to deal with the application by way of a determinative conference rather than a hearing. 1

[5] The Respondent in its submission said that at the time of the dismissal the Respondent was a small business employer. It said that the Respondent together with associated entities had always employed fewer than 15 employees at any time. The Applicant claims that the Respondent had more than 15 staff at the time of termination.

[6] However the Respondent conceded at the commencement of the conference it did employ 15 employees at the time of termination 2 so on that basis I proceeded to consider the matter in accordance with s.387 and not s.388.

Background

[7] By way of background the Respondent operates an indoor go kart track and says it has been in business for approximately 5 years. The Respondent says that no reportable accidents have occurred at its tracks and the Respondent has made no claims on its insurer. The Respondent says it operates in an industry where serious accidents are common and are occasionally fatal.

[8] The Respondents says that it recognises that the safety of both its staff and customers are paramount.

[9] The Respondent states that before the Applicant’s summary termination the Applicant was verbally warned for turning off the kart control system. The Respondent states that the dismissal was a summary dismissal justified on the basis of serious breaches of occupational health and safety procedures.

[10] The reasons given for dismissal set out in the letter of termination were as follows:

● Allowing customers to drive the karts in an unsafe manner, de-activating the kart control system, and encouraging customers to do jumps off the bridge, rotating the kart 360 degrees whilst in the air.

● As a result of the above point, not only is this unsafe for customers, but 2 other staff members have been verbally abused and threatened, as a result of them not allowing the customers to jump the bridge, not to mention the damage this causes to karts and equipment.

[11] The Applicant said that he has extensive knowledge in kart racing, having been a former Australian champion in the sport.

[12] The Applicant stated, and the Respondent confirmed there were no formal written policies during the time of the Applicants employment, and such policies were only reduced to writing after the Applicants termination.

[13] The Applicant says that he was not clearly trained by the Respondent, and the Respondent very well knew his extensive karting knowledge.

[14] The Applicant said in his originating F2 Application that;

“I got terminated for this reason which is half true, I allowed customers to jump the bridge back in November 2012 and received a verbal warning. I never did this again for the rest of the period of employment. I’ve never deactivated the kart control system and rotated back 360% in the air (impossible). The (sic) have radio surveillance thru out (sic) the entire centre to prove this point. In February 2013 my employer made me sign a contract saying I will never do this again and I haven’t. ......

........................................

“I allowed some customers to jump the bridge, just one group of locals which were coming to the centre before the kart control system was put in and they used to jump the bridge before I got put in that position, I got a verbal warning for this back in November 2012.”

“The other part of my termination - I’ve never de-activated the kart controller and never rotated a kart 360% in the air....................”

“I believe my termination was unfair, I got injured at work on May 4th 2014, for a dislocation and fracture of my shoulder, I had two weeks off, came back to work, with arm in sling. Everything at work was good, I even got employee of the month in both centres during the month of April, I got a message from Workcover on the 14th June to operate on my arm on the 19th June and let everybody at work involved know and I-did. On Monday 16th June I was terminated on the spot. I believe my medical situation is the real reason for my termination, but they thought this would be easier, except I haven’t done any of these matters wrong for over a year.”

[15] In his witness statement provided later the Applicant added:

“I have never turned off the kart control system even when accused the first time. Since the introduction of the kart control system in 2013 the older customers use to jump the bridge on their own accord because there was a compulsory braking zone, painted red lines to prevent jumping. The same old customer who only come in every 3 or 4 months or so, are always asking to jump the bridge however I’ve never allowed them to jump the bridge with the new kart controller. We constantly get asked to do this by the old customers due to the old ways of the centre...” 3

[16] The Applicant said in oral evidence that while he initially believed his termination was connected to his Workcover claim he now believed having read the Respondents statements that it was to do with the incident of 16 May. 4

Earlier Verbal Warning

[17] In his written submission the Applicant conceded that he did receive a verbal warning from Dan Tuite the General Manager but said it was over 12 months ago. He said in the submission it was between October and December 2012, however he said he was promoted to track manager after this warning in January 2013. The Applicant said he was very remorseful at the time of the warning. He confirmed in his oral evidence that he accepted that he had received a warning about people jumping the bridge before Christmas 2012, and accepted that it had happened and was remorseful about it.  5 6

New System introduced early 2013

[18] The Applicant said after the warning the kart control system became more advanced and karts and a loop system was created to slow carts down over the bridge. The Applicant said individual karts could be slowed down or shut off.

[19] The Applicant said that to disable the kart system would cause all karts to jump the bridge and the safety speeds under yellow and red lights would be deactivated. The Applicant said that this would cause many problems and is impossible to do without anyone noticing or seeing the dangers.

[20] The Applicant said in oral evidence that the new system introduced in early 2013 allowed an employee to slow all the go karts. He said go karts can individually be speed up or slowed down.  7 He said under ‘yellow lights’ the electronic system speeds up karts approaching the hill so everyone can make it up to the top and it cuts out when over the hill and then goes back into full acceleration when back down the hill. 8

[21] The General Manager Dan Tuite said it was approximately 12 months ago that the Applicant was given a verbal warning for allowing customers to ‘jump the bridge’ and doing 360’s. He said this was deemed extremely unsafe for the customers attempting it, and it was also damaging to the karts. Mr Tuite said the Applicant seemed remorseful and promised never to do it again, so he said the Applicant was not terminated at that stage.  9

[22] The Applicant said he was shown how to slow individual karts down.  10 He said he could never deactivate or turn off the kart control system. He repeated this in his oral evidence saying that you can’t deactivate the kart control system without physically going and turning the power point off, and he denies ever doing it. 11

[23] The Applicant also said however that it is possible to accidentally allow people to do jumps. He said as follows:

“ you can do it accidentally by having the yellow lights on and watching the accident down there, and then pushing the green lights and if they’re in the cut-out zone, it accidently cuts you back in. So, yes, it does accidently happened every now and then….”  12

[24] Mr Tuite said karts can be individually controlled. He explained it is necessary to be able to do this, and gave an example of under a red light everyone has to come to a complete stop if one kart was broken, however a full green light can be given to another kart in order that they can drive around to where the customer is.  13

[25] Mr Goddard said the override system allowed track staff to override all karts and individual karts. He said the controller itself had numbers on it and you just push a number and the speed number.  14 During cross examination of Mr Goddard the Applicant focussed on the claim he turned off the kart control system which he disputed. Mr Goddard responded that it could be done “just by pushing the – speed 4.”15 The Applicant said that was not turning off the kart control system. Mr Goddard replied “No, but it allows the karts to go faster than the actual speed recommended on the bridge.”

[26] Mr Gordon gave similar evidence to Mr Goddard that the kart controller system has speeds 1, 2, 3 and 4, 4 being the fastest. He said if there is a certain section where the cut-out is (which stops the kart from jumping) if you push 4 it eliminates it, so they can get full power.  16

Applicants conduct before May Incident

[27] Mr Tim Harris, the Centre Manager, said in his statement 17 that during the period of August to October 2013 in particular, there were a lot of issues caused by the Applicant disregarding the track rules for a couple of then regular groups of customers. Mr Harris said that this became a threat to the safety of other staff members, as customers believed that they were being treated harshly by our track managers and assistants other than the Applicant. The Applicant said he did not wish to ask Mr Harris any questions as he wasn’t there on 16 May. 18

[28] In his statement Mr Gordon,  19 after describing the incident on 16 May, said as follows;

“This also happened a while back, when Steven was allowing customers to do these sorts of things. The customers back then, were also abusive when I wouldn’t let them do it. I complained to my manager, as I don’t come to work each day, to get threatened by customers.”

[29] In oral evidence Mr Gordon said his statement referred to ‘Banco’ as the main customers doing this. Mr Gordon’s evidence was he did not commence employment with the Respondent until 2013, and he said he was “there for probably a good year before this stuff started happening.” Mr Gordon said they (Banco and others) only come in probably every three or four months. However every time they did come in they always wanted it turned off so they could jump. 20

Injury at Work

[30] It is common ground that the Applicant was injured at work on 4 May 2014 requiring time off work and the Applicant was still off work on Workcover on 16 May 2014.

16 May Incident

[31] In the written submission prepared by Mr Wilson it said that on 16 May an incident occurred which made the Respondent aware of the Applicants unsafe conduct at work. The submission said Mr Gordon was working as Track Manager and Mr Goddard was working as Shift Manager. It was said Mr Gordon was threatened by a group of customers as he would not turn off the kart control system. It was claimed that the customers indicated that the Applicant would turn off the kart control system so that they had full speed over the bridge and could jump and do 360 degree turns on the bridge. It was claimed threats were made against Mr Gordon, and Mr Gordon referred the matter to Mr Danial Goddard who was then able to calm the situation. It was claimed that Mr Goddard has since received calls from other customers who have asked if the Applicant no longer works there because he used to let them jump the bridge.

[32] In his statement Mr Harris said on 16 May 2014 a group of customers arrived. Mr Harris said he was not present at the time but reports “filtered through” that there were ‘again’ threats of violence against staff members. Mr Harris said these customers “again” believed they were being treated harshly, when track staff were following guidelines correctly, two of the staff were threatened with violence, as well as being verbally abused. Mr Harris said it was felt the Applicant was putting both staff safety and customers at risk, and that is why he was terminated.

[33] Mr Tuite who was the decision maker said he believed what his staff told him about the incident of 16 May. He said the earlier issue (the warning) was ‘buried and gone’. He said there was no reason for it to come up again unless it had actually happened again.  21

[34] The Applicant said he was not informed (prior to his termination) of who the customers were that were involved in the incident on 15 May, how the altercation was started and how his name came up. The Applicant said he had not been shown any reports from staff or customers concerning the incident of 16 May.

[35] The Applicant asked who the customers were involved in the argument (on 16 May). Mr Goddard referred to the customer nicknamed Banco.  22 The Applicant indicated that this was the same person that he had originally been in trouble for.23 However the Applicant claimed he had not seen him since that time (late 2012). Mr Goddard said he believed this person (Cam/Banco) attended the track every three months.24

[36] Mr Goddard’s oral evidence was that the customer “...came up to the counter, going off at me, saying he (Gordon) wouldn’t let us do certain things; and then I had to explain to the customer why we have certain rules and why you’re not allowed to do certain things.” 25 This was fairly consistent with his statement 26 that said he had to defuse a situation, where customers were abusing him, because the Track Manager Mr Gordon would not allow them to jump the bridge.

[37] Mr Goddard claimed in his oral evidence that the customer used the Applicants name saying “Steve would let us do this.”  27 Mr Goddard also claimed he had seen the customer in question “a couple of times” after December 2012.

[38] Mr Gordon said in his statement that on 16 May he had a group of customers requesting he turn off the kart control system, to allow them to do jumps off the bridge. He said they were also asking if he would allow them to do 360’s. He said when he said no (because it is unsafe, and his managers told him not to allow anyone to do it) a couple of guys in the group became aggressive, and saying if he didn’t allow them to do it, they would punch his head in. He said he still didn’t let them do it, so he sent them to the counter, to see the Shift Manager, Dan Goddard.  28

[39] Whilst not in his written statement, he said in his oral evidence that the customer threatening him said “Steve allows me to do it...”  29

Phone call post termination

[40] The Applicant was referred to the statement of Mr Goddard and the claim from Mr Goddard that after the termination of the Applicant he had received “...multiple phone calls from customers, asking if Steven was working that day, or when he was working next. One in particular, I told him that Steven doesn’t work here anymore, and the customer asked if it is because Steven used to let us jump the bridge.” The Applicant said it could have been a reference to 2012.

HARSH, UNJUST OR UNREASONABLE

[41] Section 387 reads as follows:

“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.”

[42] An assessment as to whether a dismissal is unfair must take into account all of the matters listed s.387(a) to (h) to the extent that they are relevant. The first consideration is whether, at the time of dismissal, there was a valid reason based on the Applicants conduct, that his conduct was sufficiently serious to justify immediate dismissal.

[43] The evidence before the Respondent in concluding that the Applicant had done what was asserted against him in the termination letter included that of Mr Goddard and Mr Gordon concerning the behaviour of the customers on 16 May and what was said to them about the Applicant, and the evidence of Mr Harris and Mr Gordon that the Applicant had been engaging in this conduct after his warning in December 2012 and before the incident of 16 May 2014.

[44] Knowledge that was acquired after termination included the claim from Shift Manager Goddard that he has received multiple phone calls from customers asking if the Applicant is working that day, or when he was working next. Mr Goddard said one caller in particular, after the caller had been advised the Applicant did not work for the Respondent anymore, advised him that the Applicant used to let “us” jump the bridge.

[45] The evidence also makes clear that that the kart control system did allow track staff to manipulate the speed of individual karts if they wished to do this, merely by pushing a button to override the system. It was the Applicants evidence that he had himself done this, but only accidentally.

[46] Given the evidence provided concerning the risk to staff and customers, the dangerous nature of the industry, potential damage to the business, and that the Applicant did not take issue with the existence of all of these factors then it is clear if the allegations were made out then the conduct would be serious misconduct and would justify summary dismissal.

[47] Having considered the evidence I am satisfied it is more likely than not that the Applicant did allow customers to ‘jump the bridge’ after the time that he had been warned about not doing it back in December 2012. The reasons for which I have reached this view include that it is more plausible than the alternative proposition as put by the Applicant – which is that he had not done so since December 2012 and that the explanation for the conduct of customers on 16 May 2014 is based on an expectation of customers flowing from his conduct over 1 and a half years earlier.

[48] A further reason I am more inclined to accept the employers finding that the conduct was occurring post December 2012 is the evidence that the customers involved in the incident of 16 May were referring to the Applicant by name as someone who allowed them to do what they were requesting. The evidence of Mr Harris and Mr Gordon also included that this issue had been an ongoing problem. It is also clear that the Applicant was aware of how to manipulate the speed of individual karts (even though he claimed he had only done so by accident). Finally, the post termination telephone calls referred to in Mr Goddard statement allows me to draw the inference that those customers wanted to know the Applicant’s shift times because when he was on shift he allowed them to do things that other track staff did not. All of this evidence points to a conclusion that it is more likely than not that the Applicant had been engaging in the conduct alleged against him after December 2012.

[49] There was no suggestion that the events of 16 May 2014 did not occur. There has been no evidence that any of the witnesses for the Respondent who gave evidence adverse to the Applicant had any alternative motive for doing so. For all of these reasons I am satisfied that the Applicant had a valid reason for summary termination.

[50] The Applicant was notified of the reason for termination at the time of termination. It is apparent the Applicant was not given a proper opportunity to respond to the reasons related to his conduct as, given the Applicants absence due to injury, it appears the Applicant attended a meeting on 15 June 2014 with the General Manager Mr Tuite where he was advised of the Respondent’s decision and given the termination letter. Given the circumstances the practicality of the situation was that the Applicant had little opportunity to request a support person be present to assist at any discussions relating to the dismissal.

[51] The dismissal did not relate to unsatisfactory performance and therefore s.387(d) is not relevant. The employer is only just over the size of a small business employer and it is likely that this factor impacted on the procedural failings in effecting the dismissal. Similarly, as the Respondent did not have a dedicated human resource management specialist or such expertise in the enterprise, this also was likely to have impacted on the procedures followed in effecting the dismissal. I am also cognisant of the potentially dangerous consequences of failing to comply with safe operating procedures in this industry, a point the Applicant readily accepted.

[52] Having weighed each of the elements of s.387, despite the procedural failings in the manner in which the termination was effected I have concluded the dismissal was not harsh, unjust or unreasonable given all of the circumstances. On that basis the application is dismissed.

COMMISSIONER

 1   Transcript dated 28 November 2014 PN16

 2   Transcript dated 28 November 2014 PN 21

 3   Statement of Steven Rapmund

 4   Transcript dated 28 November 2014 PN 63

 5   Transcript dated 28 November 2014 PN 67-71

 6   Transcript dated 28 November 2014 PN 95

 7   Transcript dated 28 November 2014 PN 81

 8   Transcript dated 28 November 2014 PN 83

 9   Exhibit 3 Statement of Dan Tuite paragraph 2

 10   Transcript dated 28 November 2014 PN 89

 11   Transcript dated 28 November 2014 PN 92

 12   Transcript dated 28 November 2014 PN 100

 13   Transcript dated 28 November 2014 PN 263

 14   Transcript dated 28 November 2014 PN 306

 15   Transcript dated 28 November 2014 PN 310

 16   Transcript dated 28 November 2014 PN 410

 17   Exhibit 2 Statement of Tim Harris

 18   Transcript dated 28 November 2014 PN 200

 19   Exhibit 5 Statement of Matt Gordon

 20   Transcript dated 28 November 2014 PN408-409

 21   Transcript dated 28 November 2014 PN 257

 22   Transcript dated 28 November 2014 PN 318

 23   Transcript dated 28 November 2014 PN 326 - 329

 24   Transcript dated 28 November 2014 PN 331

 25   Transcript dated 28 November 2014 PN 334

 26   Exhibit 4 Statement of Danial Goddard

 27   Transcript dated 28 November 2014 PN 341

 28   Exhibit 5 Statement of Matt Gordon

 29   Transcript dated 28 November 2014 PN 437

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<Price code {A}, PR558147>