Stuart Innes v Heathcote Dairy T/A Central Milk Supplies
[2019] FWC 6812
•2 OCTOBER 2019
| [2019] FWC 6812 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stuart Innes
v
Heathcote Dairy T/A Central Milk Supplies
(U2019/989)
| Commissioner Gregory | MELBOURNE, 2 OCTOBER 2019 |
Application for an unfair dismissal remedy.
Introduction
Mr Stuart Innes was employed by Heathcote Dairy Pty Ltd T/A Central Milk Supplies (“Central Milk Supplies”) as a Driver. He was engaged on a part-time basis to carry out a milk delivery run from Bendigo to Shepparton and surrounding areas. He only worked on Saturdays, generally commencing work at around 4.30 am before finishing at midday.
Mr Innes was first employed by Central Milk Supplies in September 2015 and worked until 11 January 2019 when his employment was terminated with immediate effect. He subsequently lodged an unfair dismissal application and this decision deals with that application.
The matter was heard in Bendigo. Mr G. Raines from Thornton Tucker was given permission to appear on behalf of Mr Innes under s.596(2)(b) of the Fair Work Act2009 (Cth) (“the Act”) as it would be unfair not to because Mr Innes would otherwise be unable to represent himself effectively. Mr Sam Pickering appeared on behalf of Central Milk Supplies.
Ms Chirly Innes provided a witness statement in support of Mr Innes. However, she was not present on the day of the hearing, and Mr Innes’ representative subsequently indicated that her evidence was no longer sought to be relied upon.
The Issue to be Determined
Section 386 deals with the “Meaning of dismissed.” It states in part:
(1) a person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Section 385 continues to provide that a person has been unfairly dismissed if the Commission is satisfied that “the dismissal was harsh, unjust or unreasonable.” Section 387 also requires that the Commission must take into account the following considerations in determining whether a dismissal was harsh, unjust or unreasonable. It states:
“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.”[1]
The Commission is accordingly required to determine whether Mr Innes’ dismissal was “harsh, unjust or unreasonable” taking into account the matters in s.387 it must have regard to.
The Applicant’s Evidence and Submissions
Mr Stuart Innes
Mr Innes indicated in his evidence that his wife’s family lives in the Philippines, including an Aunt who has recently been unwell. He had a conversation in the early part of last year with one of the owners of Central Milk Supplies, Mr Philip Pickering, about taking a period of annual leave over the forthcoming Christmas period. The purpose of taking this leave was to visit his wife’s family. He said he was told by Mr Pickering that this should not be a problem, and Mr Innes took this to be agreement to his request. He had previously been allowed to take a period of leave over the Christmas/New Year period shortly after he was first employed. This leave had been arranged by him prior to him commencing work at Central Milk Supplies.
However, around a week later he was in the office at Central Milk Supplies with both Mr Pickering and his partner, Ms Joanne Sullivan, who he understood to be the co-owners of the business. A discussion then took place in regard to his leave request and Mr Innes said that Mr Pickering said words to the effect of, “Well I’ll let you do it this time but don’t do it again,”[2] but as he left the room he heard Ms Sullivan say words to the effect of “Are you effing serious?”[3]
However, after what he considered to be a second verbal indication from Mr Pickering during the course of that meeting that his leave request would be approved, Mr Innes proceeded to book and pay for flights to the Philippines at the end of the year for both he and his wife. However, a few days later he was asked by Ms Sullivan to fill out an annual leave request form, which he eventually did. He indicated that at the time of submitting the leave form he believed that his leave application would now be formally rejected, and this was confirmed when the form was sent back to him. It stated that his application for leave had been rejected and continued to indicate, “These dates are in a prohibited time for our business, unfortunately your leave request is being rejected.”[4] He was also provided with what was described as a Corrective Action document, which he was told that he would be given if he did not fill out the leave form. He later complained to Mr Pickering about receiving this form, as he believed it was unfair. He subsequently completed a response to that document indicating that he disagreed with its content.
The Corrective Action document was dated 7 April 2018. It indicated at the outset that five levels of corrective action could be considered. These were “Verbal Warning,” “Counselling,” “First Warning,” “Final Warning” and “Termination.” In this case three boxes had been ticked, being Verbal Warning, First Warning and Final Warning. The remaining parts of the document stated as follows:
“Fact regarding the incident / problem: The employee has indicated taking leave during a prohibited time of the year. These dates are clearly described in the letter of employment. The employee has also refused to fill in and sign a leave of absent form.
Specific reasons why employee’s conduct was unacceptable: Breaching the letter of employment; which clearly states that the periods of Dec 15th to Jan 15th are prohibited times of leave. This period is extremely busy due to the increase of activity over the xmas period. The business cannot run efficiently with any staff members away on leave.
Proposed rectification or the acceptable standard to be reached by the employee (include a close out date): The employee must give C.M.S. a signed absent of leave form by April 14th 2018 indicating what dates are required.
All action taken: Annual leave in the periods of December 15th to Jan 15th will automatically be rejected. This is due to the increase of business over this extremely busy period.
Consequences of failure to improve or achieve goals: The employee must adhere to the set standard rules described in the letter of employment. Failure to adhere to the rules in the letter of employment will be regarded as a direct breach of the employee’s contract, subsequently and unfortunately resulting in the termination of the employee’s employment.”[5]
Mr Innes eventually returned the document and it was signed by both parties on 27 April 2018. He also attached an additional document which stated:
“I disagree with the contents of this document for the following reasons.
It claims to be a “final warning”. This document has 5 boxes at the top indicating that I have had a verbal warning, a first warning and a final warning.
I have had NO PREVIOUS OFFICIAL WARNINGS plus I have not been afforded my right to have a witness present at these alleged warnings and have been given no documentation in regards to these alleged warnings.
I DID NOT refuse to fill in a “Leave of absent” form. I said “I am not signing anything until I receive legal advice” This is not a refusal, also, being forced to sign one of these forms 8 – 9 months in advance is unreasonable and outrageous. 4 weeks is industry best practice.
You state that this warning is for a breach of contract of employment.
There has been NO BREACH as yet, and any indication by me is heresay. You cannot impose an official warning over an incident that has not yet occurred. I have breached nothing.It appears I have been singled out and bullied as a result of me stating that I will seek advice from the Fair Work Commission over this matter. I ask that this apparent vindictive behaviour cease immediately.
Without Malice,
Stuart Innes”[6]
He also indicated that he felt intimidated and bullied by the reaction from Ms Sullivan, in particular, to his leave request to the extent that he did not want to be involved in any further discussions about the matter. However, he also indicated that he generally got on well with Mr Pickering and believed that he had twice previously verbally approved his leave request application.
In July of last year he was also stood down without pay from two of his weekly Saturday shifts, and he understood that this occurred because Central Milk Supplies wanted to train someone else to carry out his delivery run in anticipation of him being away for a period of time at the end of the year.
Mr Innes also considered cancelling the flight bookings at this point, even though this would mean that he would be out of pocket. However, he and his wife had received news in the meantime that his wife’s Aunt in the Philippines was not well and he decided, as a consequence, not to cancel the bookings.
From that point on there was no further discussion about his leave application and Mr Innes indicated in his evidence “I don't recall actually talking to anyone because, as I said, discussions with them – because I'd been – I felt I'd been intimidated before, I didn't want to broach the subject again.”[7] However, he also continued to state, “I assumed that they were expecting me to go on leave because of when they stood me down for two days to train someone else up.”[8]
Mr Innes also made reference to an email that he sent to Mr Pickering on 19 December 2018 under the heading “Holidays.” The email stated:
“Hi Phil,
I understand that you have had a chat with Greg. He mentioned that we might have a sit down this weekend to discuss my complaint. Also to chat about my overseas trip to visit family after I booked my flights earlier this year. Please understand that I booked my flights only after you said I could take leave during this time.
Greg has given me the contract which it appears I have signed. However I never received this until now. This is despite asking for it several times.
I am travelling overseas as originally discussed and i believe that this was something that I should be permitted to do without fear of losing my job. There are other drivers who have expressed interest in covering these 3 shifts.
Stuart”[9]
Mr Innes said that there was also to be a meeting involving himself, his representative, Mr Raines, and Mr Pickering at the conclusion of his shift on Saturday, 22 December. However, Mr Raines subsequently advised that he was not able to attend this meeting and Mr Innes was not comfortable to attend on his own. He therefore left work and started to drive home. However, he then received a phone call from Mr Pickering, who asked why he was not attending the meeting. Mr Innes told him that he was not comfortable talking to him on his own. He also confirmed with Mr Pickering that he would not be at work on the next three Saturdays as he was leaving that night on a flight to the Philippines.
Mr Innes also attached a further email that he then sent to Central Milk Supplies on Saturday, 22 December at 2.13 pm. It stated:
“Hi Phil,
I am sorry we weren't able to have a sit down chat today but as Greg was not available, I felt that I could not do it "solo" particularly as it seems it was going to be 3 against 1.
As I alluded to on the phone, I will not be available for the next three weeks as I am going on holiday with my wife to the Philippines who has promised to catch up with her Auntie who is in her early nineties and the fear is that she will not get another chance to see her alive in future.
It has been three years since we have been to the Philippines so you can imagine how much my wife wants to catch up with her remaining family.
If as a result of my absence, if you decide to proceed with my termination, then so be it. But I must warn you that it will not be the end of the matter. As you must know by now, there is a complaint lodged with FairWork and until that complaint is heard, there is an order of no adverse action against me which includes dismissal.
It doesn't stop you doing it but if you do then FairWork will take a very dim view of that action and it will be taken into account when deciding the case against you.
I have worked for you for over three years now and for the most part I have enjoyed it. I have made a couple of mistakes in that time but generally speaking, I have gone out of my way to take care of your vehicles and customers. It was a bit of fun and I enjoyed being out on the road. But after trying to do the right thing by notifying you of my intended leave months in advance, it all fell apart when you not only once, but twice, agreed to my leave only to renege on that decision due to pressure from others. It really has left a bad taste in my mouth and I really regret that it has come to this, but you left me no other choice.
I make this decision and write this email with no malice intended.If you have any further comment or questions, I suggest you refer them to Greg Raines as he is the person acting on my behalf.
I really do hope we can resolve this matter in a fashion that is acceptable to us both.
Either I will see you in three weeks.......or not.
Sincerely and without malice,
Stuart Innes.”[10]
Mr Innes then made reference to a series of three further emails. The first was sent to him by Mr Pickering on Saturday, 29 December 2018 at 6.10 am. It stated:
“Hi Stuart,
I tried to ring you but your phone is dead.
I am wondering we you are not work today, we had to bring in someone from the Coolroom leaving us short
Regards,
Philip Pickering
Central Milk Supplies”[11]
Mr Innes then referred to an email he sent in response, which was indicated to be sent at 3.19 pm on 30 December 2018. It stated:
“You knew last week I wasn't coming in....I told you on the phone and also I emailed you last Saturday so you should not have been surprised. You had a week to organize someone. I am not playing these games with you.
I am sending this from the Philippines.
Stuart”[12]
Mr Innes then received the following response from Mr Pickering and Ms Sullivan on Sunday, 30 December at 4.27 pm:
“Hi Stuart,
Your not supposed to be on holidays
Rgds
Philip Pickering and Josephine Sullivan
CENTRAL MILK SUPPLIES”[13]
Mr Innes then received a further email from Central Milk Supplies on 6 January 2019, which appeared to suggest that it was not receiving his email correspondence. It stated:
“To Stuart Innes,
This is the second notice of “No show at work” , as this is the second notice we are taking this as an Abandonment of your Position , appropriate steps will be taken.
Rgds
Philip Pickering and Josephine Sullivan
CENTRAL MILK SUPPLIES”[14]
On 11 January he asked his representative to contact Central Milk Supplies to explain why he was not at work, and to indicate that he would also be back in a few days, and would then like to meet and explain the circumstances in which he had taken leave. However, shortly after at 12.36 pm on the same day he received an email from Central Milk Supplies headed “Termination,” which stated:
“To Stuart Innes,
We regret to inform you that your position at Central Milk Supplies has ceased immediately.
See the attached letter for further details.Philip Pickering and Josephine Sullivan
CENTRAL MILK SUPPLIES”[15]
This email was received by Mr Innes one business day prior to him returning to Bendigo. It was followed up by a termination letter of the same date, which stated:
“Dear Stuart Innes,
Your position at Central Milk Supplies as a Service Operator/ Coolroom Storeperson has been terminated immediately as of 11th January 2019.
Your position has been terminated due to your abandonment of your duties on the 29th of December 2018, 5th of January 2019 and the 12th of January 2019 as you disregarded our decision to reject your annual leave proceeding to fulfill your travel plans over one of the busiest periods of operation.
As outlined in your letter of Employment, staff welcome book, staff training and corrective action documentation presented to you in April absence from employment without an accentuating circumstance will result in instant dismissal.
All business issued keys must be returned to 18 Alstonvale Court as soon as possible.
As outlined in your letter of Employment annual leave entitlements accrued will be paid to you in a lump sum on the 15th of January 2019.
Josephine and I regret that the situation has come to this point however I need to adhere to our company policies to remain fair to other employees who do not have to opportunity to take annual leave over the Christmas period.
Respectfully,
Philip Pickering & Josephine Sullivan
Owner of Central Milk Supplies
Franchisee of Parmalat Australia Pty Ltd”[16]
Mr Innes indicated in cross-examination that he signed the documents, given to him at the time he commenced employment with Central Milk Supplies, including his contract of employment, without actually reading them. He was also told that he would be provided with a copy of his contract of employment but this never happened, despite him later asking for a copy to be provided. He also indicated that at the time he made the leave request he was not aware that the Christmas period was a prohibited time, and the first time he became aware that holidays could not be taken over the Christmas/New Year period was when he was told during the course of the discussion in the office in April that “It’s in your effing contract.”[17]
He also indicated in cross-examination that as well as being employed by Central Milk Supplies he also had a full-time position at a factory in Melbourne. He also acknowledged that the factory closed for the Christmas period and employees are required to take their holidays at this time. In addition, given the nature of the production processes of the factory it was not generally possible to take holidays at other times of the year.
The Applicant’s Submissions
Mr Innes submits that he was unfairly dismissed in that his dismissal was harsh, and unjust and/or unreasonable. It is also noted in his submissions that at the time of his dismissal he had made a general protections complaint to the Fair Work Commission regarding victimisation in the workplace and was awaiting a conciliation conference in regard to this application. This application was dated 14 December 2018 and was lodged with the Commission on the same day.
He continues to submit that Central Milk Supplies did not provide him with an opportunity to explain the exceptional circumstances that had necessitated his requirement to take leave and travel overseas. It is also submitted that he was terminated shortly after an email was provided on his behalf indicating that he had travelled overseas due to the failing health of a family member. It would therefore have been fair and reasonable for Central Milk Supplies to have waited for one further business day by when he would have returned to Bendigo and could then meet to discuss any concerns about his ongoing employment.
He also submits that there was no proper and procedurally fair investigation into his alleged misconduct and he was provided with no opportunity to meet and explain why he was absent from work. It also submits, in the alternative, that his termination was a disproportionate response, and this situation was exacerbated by the fact he was summarily dismissed.
Mr Innes submits, in conclusion, that at the very least he should have been provided with an opportunity to respond to the reasons for his dismissal, being that he had taken leave without authorisation and then lied about the reason for doing so. He acknowledges that he did take leave without the express permission of his employer, but did so because he had previously been abused and intimidated when he had sought to discuss these matters, and did not feel able to take the matter up again with his employer. He also submits that there should have been a proper process of investigation gone through before the decision was taken to terminate his employment, and if this process had been put in place then the outcome of that investigation would not have resulted in the termination of his employment.
The Respondent’s Submissions and Evidence
Mr Philip Pickering
Mr Philip Pickering is a part owner of Central Milk Supplies and confirmed that Mr Innes was first employed by the business on 17 October 2015. He was engaged as a part-time employee to carry out a milk delivery run on Saturday in each week. At the time he was employed he was provided with a letter of employment and a staff welcome book with which both made reference to how annual leave is accrued, and when leave is not available to be taken. Mr Innes signed an acknowledgement in regard to both of these documents in October 2015.
On 24 March last year Mr Innes approached Mr Pickering and asked whether he could take leave at the end of the year. Mr Pickering indicated in response, “It should be okay, I’ll look into it.”[18] However, he was subsequently informed by his partner, Ms Sullivan, that Mr Innes would need to fill out an application for leave.
A further discussion then took place on 31 March. Mr Innes was told at that time that he would be required to fill out the leave application. He indicated in response that he had been allowed to take leave at a similar time in 2016 and what had now changed. He was told in response that the business was not able to cope when he was off work during that busy time, and employees would not be allowed to have leave at that time again. It was also unfair to other staff who might also like to spend the Christmas period with their families.
Ms Sullivan also showed Mr Innes the relevant provisions in the letter of employment, which dealt with the prohibited annual leave dates. She also asked him to fill out the leave application, which he took but indicated that he would be contacting Fair Work in order to obtain further advice.
As a consequence of the attitude that Mr Innes displayed at the time Ms Sullivan also pre-emptively filled out a corrective action document which outlined the repercussions of him being absent without approval. On 7 April Ms Sullivan then asked Mr Innes whether he had filled out the leave application form, and when he indicated that he had not Mr Pickering gave him the corrective action document.
Mr Innes then returned the completed leave application form on 13 April, seeking leave from the period between 22 December 2018 and 18 January 2019. However, as this fell within the prohibited leave period his application was rejected. On 28 April Mr Innes then returned the corrective action document, together with a signed rebuttal accusing Central Milk Supplies of singling him out and a bullying him. However, in light of his attitude it was decided in July to ask whether he was going to be absent during the dates he had requested. Mr Innes responded by indicating that “he did not know.”[19] As a consequence the business organised for another driver to familiarise himself with the delivery route that Mr Innes worked on so as to be prepared for his potential absence. There was then no further discussion about the matter between July and December.
On 16 December Central Milk Supplies received Mr Innes’ general protections application. It alleged that he was a casual employee; that he had never received or seen his letter of employment; that he wanted to be paid for the shifts he had not been allowed to work; that he was being denied his workplace right to take annual leave; and it had initially been agreed by Mr Pickering that he could take leave during the period requested, and he wanted that decision to be respected.
The Applicant’s representative was then contacted to discuss the matter, but he responded by threatening to approach the franchisor, and alleging that a forged statutory declaration had been provided in a previous unfair dismissal matter involving another employee. The discussions concluded at that point and it was agreed there would be a further meeting on Saturday, 22 December, after Mr Innes had concluded his shift. Central Milk Supplies then received an email from Mr Innes confirming that he would be attending that meeting, and advising that he would be proceeding on leave in the week prior to Christmas.
However, Mr Innes left work immediately at the conclusion of his shift on 22 December, and after being contacted by Mr Pickering he indicated that his representative was no longer available to attend the meeting, and he would not be attending by himself as he felt outnumbered.
On 26 December Central Milk Supplies provided its response to the general protections application, and on 29 December sent an email to Mr Innes asking why he was not at work today. On 3 January it participated in a telephone conciliation regarding the general protections application, but the meeting was cut short after Mr Innes could not be contacted. A further email was then sent to him on 6 January, advising that he had not attended at work for a second time, and it was taking this as “an Abandonment of your Position,” and “appropriate steps will be taken.”
On 11 January an email was received from Mr Innes’ representative explaining that he would be absent from work for another shift and that his absence had no effect on the business. On 12 January Mr Innes’ employment was terminated via email so “as to be consistent with our workplace rules.”[20]
Mr Pickering also indicated in cross-examination that when he initially told Mr Innes that it should be okay for him to take leave he was indicating that he would look into it, and get back to him before confirming the position. What he had actually said was, “It should be okay. I’ll get back to you.”[21] He also denied in cross-examination that he was following a process set by the franchisor, and he was instead following the process adopted by Central Milk Supplies.
He also indicated that he was not aware as to why Mr Innes would feel uncomfortable in being in a meeting with him and Ms Sullivan, and denied he had ever sworn at Mr Innes. He also said that Mr Innes made no mention in the phone call on 22 December that he would shortly be going overseas. He also stated that despite the phone conversation, and the email he received from Mr Innes on 22 December, he was not aware that he was wanting to travel because he had a family member who lived overseas and was unwell.
Ms Josephine Sullivan
Ms Josephine Sullivan is Mr Pickering’s de facto spouse and business partner. She provided a witness statement, which was almost identical to that provided by Mr Pickering. She also indicated in her examination-in-chief that the first time she became aware that Mr Innes was needing to travel to the Philippines because of issues concerning an elderly relative who was unwell was when she received the email from him on 22 December. However, she did not necessarily believe that this was the reason why he wanted to travel overseas. She stated, “No. Never entertained the idea. No. Stu was going on this holiday from the word go and that was it. He didn't want to ask us about anything. He just was going to go and that was it.”[22]
She also indicated that the warning was provided to Mr Innes to emphasise what would happen if he was to take holidays in the prohibited time period. It was not intended to be a threat but, “I had to let him know that that was our rules.”[23] She had also never seen any evidence from Mr Innes that he was required to travel overseas to visit a sick relative, and believed these grounds had been “fabricated.”[24]
She was aware that Mr Innes’ representative had sent an email to the business on 11 January and it was decided to terminate his employment later that day, without any further investigation. She said, “Stu had nine months to come to us. Nine months to explain that what he was going to do. Why couldn't he come in earlier? Why couldn't he explain to us? Why did we have to have an investigation? Why couldn't he come in earlier to explain that he was going?”[25] She also indicated that the business had consulted the Fair Work website and did not believe that an ill Aunt was someone that had to be taken into account when considering any extenuating circumstances, given she was not a relative that lives in the household.
She also indicated that the delivery run that Mr Innes performed was not a complex one, and was in fact “Very basic.”[26] She also stated that the business had never intimidated Mr Innes, and she had never sworn at or abused him. Mr Innes had also never asked for a copy of his employment contract and it had been retained in a safe place at the dairy.
She also indicated that Central Milk Supplies had to act in view of the circumstances involving Mr Innes, and it had employed another person to replace him after it received the email from him on 22 December.
The Respondent’s Submissions
Central Milk Supplies submits that Mr Innes was not unfairly dismissed. It also denies it dismissed him because he lodged a general protections application, or because he attempted to exercise the workplace right to take annual leave, as alleged. It submits instead that he was dismissed because he was absent from work without approval, and without a legitimate or sufficient excuse. This occurred in accordance with its workplace rules that apply in circumstances where a person is absent without permission and without a sufficient extenuating circumstance.
It refers in this context to the letter of employment that Mr Innes signed when he commenced employment, which indicates that annual leave requests for “December,” and “Up to Mid January” “Will be automatically rejected as these periods are too busy.”
It also submits that the exceptional circumstances relied upon by Mr Innes were given reasonable consideration, but were ultimately rejected. He simply disregarded the appropriate workplace procedures and took leave when he wanted. This situation was sufficient to constitute serious misconduct, given the rules that apply in the workplace.
It continues to submit that, “Even though the applicant was dismissed he still had the ability to meet with Central Milk Supplies after his return to Australia and negotiate reinstatement, however after his dismissal we did not have any contact with the applicant until the submission of his unfair dismissal claim.”[27]
It also submits that the exceptional circumstances relied upon by Mr Innes cannot be justified on any reasonable basis, and the period of leave taken that was justified on the basis of needing to visit a sick relative was originally foreshadowed early in 2018. It also refers to the email received from him on 22 December 2018, which refers to the fact that the trip was a recreational holiday and had been planned for months. It submits in response that the reference to a sick relative was accordingly “a manufactured illegitimate excuse to justify their absence.”[28]
It also submits that an “aunt” is not considered to be “an immediate family member” in terms of the definition contained in the Fair Work Act in regard to the provision of carers or compassionate leave. It again relies on this in support of its submission that the illness of an employee’s aunt was not sufficient to justify the taking of leave at short notice, or at a time otherwise prohibited by the rules applying in the workplace.
It continues to submit, in conclusion, that it had a valid reason to dismiss Mr Innes on the basis of misconduct justifying dismissal as he deliberately departed from its accepted standards and took a period of annual leave during the prohibited time without permission or valid excuse. It also submits that termination was a proportionate response as Mr Innes understood the consequences of his actions and had acknowledged that this response could result from his actions.
Mr Innes was also provided with the opportunity to meet with Central Milk Supplies, together with a support person, on 22 December last year but both he and his representative failed to attend that meeting, and did not reschedule to another time. It is also a small business with only 11 employees.
It submits, in conclusion, that Mr Innes should have been aware of the obligations contained in the employment agreement he had entered into. In addition, his decision to take leave was not the result of a last-minute emergency circumstance as he originally booked his flights to the Philippines in April 2018, and did not attempt to change those arrangements after that time. It also had no clear indication about when he intended to return to Australia, and he was absent for 3 consecutive shifts, without explanation. That was a clear breach of the rules that applied in the workplace and provided justification for his dismissal. In its submission he was provided with a “fair go all around”[29] and the impact of his termination is in any case limited as he already holds a full-time position with another employer.
Consideration
The circumstances that ultimately led to Mr Innes’ dismissal began with what appears to have been a relatively minor issue involving him wanting to take a period of annual leave at a particular time in the year. Unfortunately the issues escalated to a point where his employment was terminated after he had been employed for more than three years. The Commission is now required to determine whether he was unfairly dismissed on the basis that his termination was “harsh, unjust or unreasonable.”
The circumstances in which an employee’s dismissal might be considered to be “harsh, unjust or unreasonable” have been considered in a number of previous decisions. The decision in Byrne v Australian Airlines Ltd[30] is often cited in this context. The joint judgement of McHugh and Gummow JJ concluded:
“...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[31]
The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd[32] also provides guidance about the Commission’s role in regard to each of the matters in s.387 that must be taken into account in determining whether an employee’s dismissal was “harsh unjust or unreasonable.” The Full Bench concluded:
“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 at the hearing must be taken into account.”[33]
I turn now to deal with each of the considerations in s.387, and those authorities that I consider relevant to the determination of this matter.
(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)
Before coming to the particular circumstances involved in this matter it is noted again that previous decisions have had regard to what is required in order to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandranv Peteron Plastics Pty Ltd[34] is often referred to in this context. His Honour came to the following conclusions:
“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.
Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…”[35]
In Parmalat Food Products Pty Ltd v Wililo[36] the Full Bench also concluded that:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”[37]
The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post[38] (“Australian Postal Corporation”) also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:
“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”[39]
It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the Employer believed it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi[40] at paragraph 19 when it stated:
“…the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”[41]
These authorities make clear that the existence of a “valid reason” is often the most important consideration that the Commission must have regard to. It is also clear that a “valid reason” must be one that is “sound defensible and well founded” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well. I have sought to adopt the approach of these authorities in coming to a decision in this matter.
The circumstances involved in this matter have been set out in some detail already and are not restated now. However, the respective positions of the parties can be summarised on the following basis. Central Milk Supplies submits it had a valid reason to dismiss Mr Innes because he was absent from work for three shifts, without approval and without a legitimate or sufficient excuse. It also submits that the rules in place in the workplace made clear that an employee would be dismissed in such circumstances. The following circumstances can also be cited in support of it having a “valid reason.”
· Mr Innes was given a Letter of Employment at the time he was first employed. It indicated that any requests for annual leave in the period from December to mid-January would be automatically rejected as these were busy periods for the business. It also stated that work rules exist and are set out in the staff welcome book, which was also provided to Mr Innes at the time he commenced employment. At paragraph 15 headed “Serious Offences” a series of matters is set out including, “Failure to return to work for over two working days without notifying either the Franchisee or your manager.” The document continues to indicate that “Your employment may be terminated for breaching any of the above serious offences!” Mr Innes is noted as having signed an acknowledgement at the conclusion of that document on 30 October 2015.
· After flagging that he wanted to take a period of annual leave at the end of the year Mr Innes was asked to go through the formality of submitting an annual leave request form, which he eventually did. It requested a period of leave from 22 December 2018 until 18 January 2019. This would have involved him being absent for three of his normal Saturday shifts that he worked on a weekly basis. That leave request was rejected by Central Milk Supplies on the basis that “These dates are in a prohibited time for our business, unfortunately your leave request is being rejected.”
· At the same time Mr Innes was also given what is described as a Corrective Action document. It again reinforced that the periods of time from the middle of December to the middle of January are prohibited times in terms of taking annual leave due to the volume of business activity over that time period.
· In his response to this so-called Corrective Action document Mr Innes stated that there had been “… NO BREACH as yet …” of his employment contract. However, in using the word “yet” he appears to have acknowledged that if he did take a period of annual leave at some point in the future, without approval, this would represent a breach of his employment contract.
· Mr Innes did not directly approach Central Milk Supplies again to confirm he was going to be absent from work during the Christmas/New Year period, until he sent an email to Mr Pickering on 19 December last year, which was 3 days prior to his last shift. This was despite him having made airline flight bookings in April, and subsequently doing nothing to change these arrangements. He then sent a further email to Mr Pickering on 22 December confirming that he would not be available for the next 3 weeks. He also foreshadowed the possibility that his employment might be terminated as a result of his absence, but stated that he was left with no other choice. It was also acknowledged in the closing submissions provided on his behalf that he did take leave without having received approval from his employer.
· Mr Innes claims he was motivated in large part to take leave when he did because of the urgent requirement to visit his wife’s Aunt, who was not well. However, he provided no evidence to substantiate this claim. It also appears that he had planned for some time to be absent from work at this time, and the need to take leave at this time does not appear to have been the result of some sudden unexpected eventuality.
· Mr Innes also indicated in cross-examination that he has a full-time job at a factory in Melbourne, which closes down during the Christmas/New Year period. The employees at the factory are accordingly required to take annual leave at this time, and leave is not available to be taken at other times. It would appear that this situation, as much as anything, caused Mr Innes to take leave and travel to the Philippines when he did.
· It is also noted that Central Milk Supplies points to the definition of “immediate family” in the Act and notes that this does not extend to include an aunt of an employee’s partner. It relies on this in support of its submission that any illness concerning his wife’s aunt could not be used as a reason for him to take a period of annual leave. However, this submission is misconceived in that the definition of “immediate family” in the Act is only relevant in terms of the entitlement of an employee to take personal/carer’s leave, as provided for in the National Employment Standards.
Mr Innes continues to submit that his dismissal was unfair and Central Milk Supplies was always aware that he was going to be absent during the relevant period, but simply chose to ignore this fact, and pretended it was not happening. He also submits that the business acted in a premeditated way in carrying out his dismissal, and should have provided him with an opportunity to explain what had occurred when he returned to Australia, before taking the decision to terminate his employment. The following points can be highlighted in support of the position of Mr Innes.
· While it appears that he signed a Letter of Employment and the attached documentation provided to him at the time that he was employed, he claims that he was not provided with a real opportunity to read those documents before he signed the relevant acknowledgements. He also claims that he subsequently requested that copies be provided to him, but this did not occur.
· He was able to take a period of annual leave over the Christmas/New Year period at the end of the first year in which he was employed. However, it appears that he was able to take leave at this time because it had already been arranged prior to the time he was employed by the business.
· He received some acknowledgement from Mr Pickering in March of last year that he would be able to take leave at the end of the year when he first approached him on an informal basis about taking leave. On the basis of this acknowledgement he apparently proceeded to book his airline flights. Mr Pickering again appeared to give tacit approval to him taking leave in the discussions that occurred in the meeting in early April, although Mr Innes also acknowledged that Ms Sullivan’s response was words to the effect of, “Are you effing serious?” She also insisted that he was required to make a written leave request. That leave request was subsequently rejected.
· Mr Innes said he found it difficult to raise the issues concerning his annual leave in discussions with the co-owners of the business, including Ms Sullivan in particular, because of their aggressive and intimidating approach. Some evidence of this attitude and behaviour was evident in the demeanour of the witnesses during the course of the hearing.
· Mr Innes had been stood down, without pay, in July last year on two of his normal Saturday shifts. He understood another person had been trained on these occasions to carry out his normal delivery run. He also assumed this had occurred because the business expected him to be on leave in the forthcoming December/January period.
· Mr Innes confirmed that he would be absent from work, while travelling overseas, in the email he sent to Mr Pickering on 19 December last year. A meeting was then arranged to take place at the conclusion of his Saturday shift on 22 December, however, his representative subsequently advised that he was unable to make the meeting, and Mr Innes decided he would not attend because he was not comfortable attending on his own.
· A series of further emails were then exchanged. These can be described as something of a charade, with Central Milk Supplies initially feigning ignorance and surprise at Mr Innes’ absence from work, and him making clear in response that the business was well aware he would not be absent on leave.
· Central Milk Supplies then allowed this process to play out until Mr Innes had been absent from work for two of his normal rostered Saturday shifts, being those on 29 December and 5 January. It then sent him an email on 11 January, which it followed up with a letter of the same date, advising that his employment had been terminated with immediate effect. Somewhat surprisingly the letter also cites his absence from work on 12 January 2019, even though this was the day after the date of the letter. However, it appears that it was already primed and ready to act to terminate Mr Innes’ employment. This would appear to be supported by the evidence of Ms Sullivan who indicated in cross-examination that the business had already moved to employ someone else in place of Mr Innes after it received the email communication from him on 22 December, or as she stated, “After that 22 December letter.” [42]
As indicated, there are a number of circumstances that need to be taken into account in this whole sorry saga surrounding the termination of Mr Innes’ employment. A number of those circumstances provide examples of what might be described as prevarication, or perhaps equivocation and evasion, with both parties dancing around what was the reality. Mr Innes had decided sometime early in 2018 that he was going to travel overseas at the end of the year during the December/January period, and would therefore be absent from work for three of his usual Saturday shifts during that time. The reasons for him wanting to travel at this time are less obvious. He maintains that the trip was necessitated by the need to visit his wife’s Aunt, who was in ill health. I have no reason to doubt that his wife’s relative was unwell, although this does not appear to have been a sudden or unexpected development, and she had apparently been in ill health for quite some time. He had also made the bookings for this travel in April last year, well in advance of the time that he intended to take leave. His acknowledgement in cross-examination that he had another full-time job, and the only time that he could take leave from that job was during the December/January period when the factory closed down, seems to have more likely been the principal motivator that dictated why he decided to take leave and travel to the Philippines when he did.
In dealing with the matter of “valid reason” I am satisfied, on balance, that Central Milk Supplies can be said to have had a valid reason to dismiss Mr Innes in the sense that the reason was sound, defensible and well founded. The following circumstances are of particular relevance in coming to this conclusion. Mr Innes made a formal request in April last year to take a period of annual leave during the Christmas/New Year period. That application was rejected. It was made clear to him at the time that he had sought to take leave at a time when employees are not able to take leave because that period is an extremely busy time for the business. He was made aware of this more than 8 months prior to the time he wanted to take the leave, and therefore had plenty of time to make other arrangements. However, he chose not to do so. I am also not satisfied, for the reasons indicated above, that there was any emergency situation or other short-term imperative that necessitated him taking leave at the particular time. As indicated, he seems instead to have been primarily motivated by the requirements applying at his other place of employment, which meant he was only able to take a period of annual leave during the annual factory Christmas/New Year close down. It is obviously unfortunate that this conflicted with the time in which he was prohibited from taking leave from Central Milk Supplies, however, that does not provide justification for him unilaterally deciding he was going to absent himself from work at this time, regardless of the wishes of his employer. It had also been made clear by his employer that any such absence from work could result in the termination of his employment, and despite all the other game playing that occurred along the way this is what occurred.
(b) whether the person was notified of that reason;
Mr Innes received an email on 11 January of this year advising him that his employment had been terminated with immediate effect, and attaching a letter of termination which provided further details about that decision.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
Mr Innes submits that, at the very least, he should have been provided with the opportunity to respond to the reason for his termination. On 11 January he asked his representative to arrange a meeting with Central Milk Supplies following his return to Australia for this purpose, but it decided instead to then dismiss him with immediate effect. It can be expected that in most circumstances an employer will provide the opportunity for an employee to provide a response to any reasons related to their capacity or conduct before a decision is taken to terminate their employment. Central Milk Supplies obviously did not do so on this occasion, and it can be criticised as a consequence. It also appears to have been aware that Mr Innes was about to return to Australia, and it could have deferred its decision until it was able to meet with him. However, it decided not to adopt this course for reasons best known to it.
However, it is also clear that in this case each party was well aware of the position of the other. Mr Innes had decided to travel overseas during the Christmas/New Year period, despite being aware that his employer had rejected his application for annual leave at that time. Central Milk Supplies also appeared to understand that it was likely that he would be absent during this period of time. However, I am not satisfied that there were any pressing or emergency circumstances that required him to travel at that time. Certainly, there was no evidence provided to support the existence of such circumstances, apart from the references to the illness of Mr Innes wife’s Aunt, which appears to have been more of an ongoing situation rather than some short-term emergency circumstance. In addition, Mr Innes decided not to attend the meeting that had been arranged on 22 December to discuss his likely absence from work. I accept that he felt intimidated about meeting with the business owners, and Ms Sullivan, in particular, in the absence of his representative. However, it also appears that he was hell bent on travelling overseas, when he did, regardless of the consequences.
(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;
There is nothing to suggest that Mr Innes was prevented at any time from having a support person present in discussions with his employer and a support person/representative was involved in some of the discussions that took place.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
Mr Innes’ dismissal did not relate to unsatisfactory performance. However, he was provided with a warning, or what Central Milk Supplies described as a corrective action document, in April last year, 8 months prior to him travelling overseas.
(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;
(g) the degree to which the absence of dedicated human resource and specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;
It is appropriate to deal with each of the above matters together. Central Milk Supplies is clearly a relatively small business, although as a franchisee it does appear that it had some access to support and assistance from its franchisor. However, it also appears that it was ultimately required to make its own decisions regarding the procedures that led to the dismissal of Mr Innes. This appears to have been a cause of some of the confusion about what was relevant, as indicated by the earlier references in this decision to the application of the definition of “immediate family” in the Act. This can be attributed, in large part, to the lack of relevant expertise available to the business, although this does not necessarily provide an excuse or justification for any employer not dealing appropriately with matters concerning the dismissal of an employee.
(h) any other matters that the FWC considers relevant.
There was nothing in particular raised in this context.
Conclusion
As indicated, the circumstances involved in this matter can be described as something of a sorry saga. Mr Innes appears to have been a good employee over a reasonable period of time. He also appears to have had a good relationship with one of the business owners, Mr Pickering, but found it very difficult to deal with the intimidating and aggressive behaviour of the other, being Ms Sullivan. However, leaving aside these considerations Mr Innes embarked on a course where he deliberately absented himself from work during a period of time in the year when he knew that leave was not available to be taken. He appears to have embarked on this course, regardless of the consequences. I am not satisfied in these circumstances that his dismissal can be said to have been unfair. I have had particular regard to the conclusions reached in regard to “a valid reason” in coming to this decision. It follows as a consequence of this decision that his unfair dismissal application is dismissed.
COMMISSIONER
Appearances:
G Raines of Thornton Tucker for the Applicant.
S Pickering for the Respondent.
Hearing details:
2019.
Melbourne:
May 24.
<PR712960>
[1] Fair Work Act 2009 (Cth) s 387.
[2] Transcript at PN99.
[3] Ibid.
[4] Application for leave form, dated 13 April 2018.
[5] Corrective Action Documentation, dated 7 April 2018.
[6] Response to Corrective Action document, dated 27 April 2018.
[7] Transcript at PN139.
[8] Ibid.
[9] Email from Stuart Innes to Philip Pickering, dated 19 December 2018.
[10] Email from Stuart Innes to Philip Pickering, dated 22 December 2018.
[11] Email from Philip Pickering to Stuart Innes, dated 29 December 2018.
[12] Email from Stuart Innes to Philip Pickering, dated 30 December 2018.
[13] Email from Philip Pickering and Josephine Sullivan to Stuart Innes, dated 30 December 2018.
[14] Email from Philip Pickering and Josephine Sullivan to Stuart Innes, dated 6 January 2019.
[15] Email from Philip Pickering and Josephine Sullivan to Stuart Innes, dated 11 January 2019.
[16] Letter of Termination, dated 11 January 2019.
[17] Transcript at PN236.
[18] Witness Statement of Philip Pickering, dated 28 April 2019 at [4].
[19] Ibid at [11].
[20] Ibid at [27].
[21] Transcript at PN513.
[22] Ibid at PN947.
[23] Ibid at PN965.
[24] Ibid at PN1020.
[25] Ibid at PN1013.
[26] Ibid at PN1037.
[27] Respondent’s Outline of Argument – Merits, dated 13 May 2019 at [8].
[28] Ibid at [9].
[29] Ibid at [38].
[30] (1995) 185 CLR 410.
[31] Ibid, 465.
[32] [2011] FWAFB 7498.
[33] Ibid at [20].
[34] (1995) 62 IR 371.
[35] Ibid, 373.
[36] [2011] FWAFB 1166.
[37] Ibid at [24].
[38] [2013] FWCFB 6191.
[39] Ibid at [58].
[40] Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).
[41] Ibid at [19].
[42] Transcript at PN1105.
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