Terrence Foster v Active Tree Services Pty Ltd T/A Active Tree Services

[2013] FWC 585

[2013] FWC 585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Terrence Foster
v
Active Tree Services Pty Ltd T/A Active Tree Services
(U2012/14587)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 25 JANUARY 2013

Termination of employment - valid reason - fair process - written warnings not available - inadequate investigation of customer complaints - harsh, unjust and unreasonable - compensation.

[1] On 29 October 2012 Mr Foster lodged an application through which he sought relief with respect to the termination of his employment with Active Tree Services Pty Ltd T/A Active Tree Services (ATS) on 22 October 2012. Mr Foster's application was not settled through the conciliation process and was referred to me for determination. Consistent with the preference of the parties, it was the subject of a conference with me on 22 January 2013. This conference was recorded for transcript purposes and evidence was given under oath. Mr Foster represented himself via a video-link from Berri. Mr Purcell, the ATS Group Human Resources Manager participated on behalf of ATS.

[2] ATS operate electricity line tree clearing services in various locations in South Australia. Mr Foster was engaged as an "Inspector" or "Scoper" from March 2012. His job was to identify tree lopping requirements, and liaise with landholders and the ATS tree pruning personnel to undertake the work. Mr Foster undertook work in the Riverland area and, at the time of the termination of his employment, some five hours away, on Yorke Peninsula.

[3] A number of complaints about Mr Foster's behaviour were received by ATS in late September 2012. Mr Foster's supervisor, Mr Overell met with him at this time. Mr Foster was later required to undertake work on the Yorke Peninsula and stayed in a local caravan park whilst working in that location. Mr Overell visited Mr Foster twice on 18 October 2012. On the second occasion he spoke with a landholder whom Mr Foster had visited earlier that day and was concerned at Mr Foster's demeanour and behaviour. Mr Overell understood that this landholder, whom ATS have been subsequently unable to identify, had called for police assistance.

[4] Mr Overell advised Mr Foster of the concerns about his behaviour and the two men waited on the roadside for the police to attend. After some time, Mr Overell contacted his manager, Mr Hounslow and then advised Mr Foster that he was suspended because his behaviour was erratic and because of customer complaints. Mr Overell drove Mr Foster to Glossop, his hometown.

[5] Mr Foster telephoned Mr Hounslow on 22 October 2012. In the course of this discussion Mr Foster's employment was terminated. A letter confirming this dismissal was later sent to Mr Foster who was paid one weeks pay in lieu of notice.

The Submissions

[6] Mr Foster asserts that the termination of his employment was substantively and procedurally unfair. He argues that there was no proper basis for this and that he had been given no warnings relative to his work performance.

[7] ATS asserts that Mr Foster's behaviour, the customer complaints about him, and his refusal to properly discuss concerns about his conduct meant that the termination of employment was fair in the circumstances.

The Evidence

[8] In terms of incidents prior to 18 October 2012, Mr Foster asserted that he had never been warned about his behaviour. He agreed that he had been told not to return to certain properties in September 2012 but refuted suggestions that his behaviour, attire, or the condition of his ATS utility, were seriously inappropriate.

[9] Mr Foster's evidence was that his behaviour was neither erratic nor threatening. He offered, as witnesses, the names of various landowners on whose properties he had been on 18 October 2012 on the basis that he understood that these persons would confirm that his behaviour was normal.

[10] Mr Foster's evidence was that he invited Mr Overell to visit a local police station on the way back to the caravan park to collect his belongings so that he could be drug or alcohol tested but that Mr Overell refused. Mr Foster asserted that his behaviour during the trip was neither erratic nor threatening.

[11] Mr Foster's evidence was that Mr Overell left him at a road-house at Glossop and that he was collected soon after by his wife. Mr Foster asserts that he received no further advice from ATS, particularly in the form of a note allegedly left at his house and that, after misplacing his telephone, he messaged Mr Overell on 19 October 2012, saying, "waz up" but got no response.

[12] Mr Foster's evidence was that he subsequently telephoned Mr Hounslow on 22 October 2012. He asked whether he would be drug tested but Mr Hounslow advised that issue was not now relied upon and that he was being dismissed as a result of customer complaints. Mr Foster's evidence was that he did not received written confirmation of his dismissal until some weeks after he had lodged this application.

[13] Mrs Foster gave unsworn evidence by telephone to the effect that she met Mr Foster at the Glossop Road-house after Mr Overell had left the Road-house.

[14] Ms Honner, the property owner on whose property Mr Foster was working when Mr Overell arrived on 18 October 2012, gave unsworn telephone evidence that Mr Foster's behaviour was proper, normal and polite whilst he was on her property.

[15] Mr Haydon is the proprietor of the caravan park where Mr Foster was staying. He gave unsworn evidence by telephone to the effect that he talked briefly with Mr Foster when Mr Overell drove him back to collect his belongings on 18 October 2012 and that Mr Foster appeared upset but was behaving normally.

[16] Mr Overell’s evidence was that he met separately with Mr Foster and at least two dissatisfied land owners in late September. He observed Mr Foster wearing a badly damaged uniform which Mr Foster explained on the basis that he had used it for toileting purposes. Mr Overell’s evidence went to the inappropriate state of Mr Foster's ATS utility and the extent to which he had made him aware of his obligations in that respect.

[17] Mr Overell’s evidence was that Mr Foster had been given a written warning but he did not know the whereabouts of this warning.

[18] On the morning of 18 October 2012 Mr Overell initially met Mr Foster at a work site where he appeared to be behaving normally. Mr Overell went to meet with Mr Foster again later that day. As he arrived at the work location, his evidence was that a person who introduced himself as "Chester" drove up to this site and advised that Mr Foster had been acting strangely on his property, in that he had been talking and gesticulating to the trees and that "Chester" had called the police. Mr Overell then met with Mr Foster on the roadside and advised him of “Chester’s” concerns.

[19] Mr Overell confirmed that he and Mr Foster had waited for some time for the police to attend. When this did not occur, Mr Overell contacted Mr Hounslow and then advised Mr Foster that he was suspended with pay, pending an investigation of this and other incidents. Mr Overell’s evidence was that during this time Mr Foster became progressively more agitated.

[20] Mr Overell drove Mr Foster to the caravan park to collect his belongings before commencing the five hour journey to Glossop. His evidence was that during this trip Mr Foster's behaviour was strange and that he engaged in numerous discussions with inanimate objects before criticising ATS and Mr Overell.

[21] Mr Overell’s evidence was that he and Mr Foster met Mrs Foster at the Glossop road-house and that Mrs Foster had initiated an aggressive argument with him.

[22] Mr Overell returned to Glossop the next day. He attempted to telephone Mr and Mrs Foster and then left a note at their house asking Mr Foster to contact Mr Hounslow if he was to avoid ATS concluding that he had abandoned his employment. Mr Overell’s evidence is that later that day he received a text message from Mr Foster but that he had not responded to this.

[23] Mr Hounslow’s evidence is that he was made aware of a landowner complaint about Mr Foster on 9 October 2012 and spoke with Mr Foster about that matter. Further, that he was made aware of a landowner complaint about Mr Foster on 18 October 2012 and subsequently instructed that Mr Foster be suspended pending an investigation. Mr Hounslow did not talk with the landowner known as "Chester" and was not aware of his address.

[24] Mr Hounslow’s evidence went to his concerns regarding Mr Foster's work behaviour from August 2012. His evidence was that he had previously given Mr Foster a verbal warning.

[25] Mr Hounslow’s evidence was that, at various times, from 18 October 2012 he consulted with ATS human resource management personnel. He tried unsuccessfully to telephone Mr Foster on 19 October 2012 but Mr Foster ultimately telephoned him on 22 October 2012. In that discussion Mr Foster did not wish to discuss the incident and, having had regard to earlier customer complaints, Mr Hounslow decided to terminate Mr Foster's employment and advised him accordingly.

[26] Mr Hounslow later asked an ATS Human Resources officer to complete a record of his telephone discussion with Mr Foster as Mr Hounslow was out in the field at that time. This was done notwithstanding that the Human Resources officer did not participate in the telephone discussion.

[27] Mr Hounslow’s evidence was that he understood that Mr Foster was formally spoken to in September 2012 by another supervisor but was not aware if there was a written record of that discussion.

[28] Witness statements were provided by two ATS administrative personnel who had received complaints about Mr Foster in late September and in October 2012 and had referred these complaints to ATS operational managers.

[29] Witness statements were provided by three Riverland residents relevant to concerns over Mr Foster's approach to them in late September 2012.

Findings

[30] I have taken all of the evidence before me into account. Some of this evidence is clearly contradictory and some of it is simply not relevant to the determination of this application.

[31] I have concluded that ATS management had concerns about Mr Foster's behaviour in September 2012 and again in early October 2012 but that these concerns did not extend to challenge his continued employment. The absence of any record of formal disciplinary action relative to Mr Foster and the vagueness of the ATS management evidence in this respect leads me to doubt that actual warnings were in fact given to him. Additionally, I have noted that despite any concerns that it may have had about his work, ATS elected to ask Mr Foster to undertake work on Yorke Peninsula.

[32] Mr Overell’s evidence was that the person known as "Chester" had told him that Mr Foster: “had been acting strangely / erratically saying that he was pointing to the trees saying we are going to cut you, pointing at the sky with his little finger and his pointing finger the thumb and two middle fingers tucked in”. 1 Evidence to support those assertions or any investigation into this complaint is not available to me. I have concluded that a resident thought Mr Foster's behaviour strange but that the extent to which this was misconduct has not been established to me. In this respect the evidence of Ms Honnor, on whose property Mr Foster was working when Mr Overell arrived, does not support a pattern of erratic behaviour by Mr Foster.

[33] I accept Mr Overell’s evidence that, on the long road trip back to Glossop, Mr Foster behaved strangely. I have also concluded that Mr Foster was angry and no doubt frustrated. I do not consider that Mr Foster's behaviour was overtly threatening but I have concluded that it was nevertheless inappropriate.

[34] I am unable to conclude whether Mr Overell was present at the Glossop road-house at the same time as Mrs Foster but I do not consider that issue to be relevant to Mr Foster's behaviour in any event.

[35] I have concluded that Mr Foster did not see the note left at his house. Had he seen it, I think that the text message he sent to Mr Overell on 19 October 2012 would most likely have been quite different.

[36] I have concluded that Mr Hounslow dismissed Mr Foster in the course of the telephone discussion on 22 October 2012 on the basis of "customer complaints" but I am not satisfied that the complaint made on 18 October 2012 was properly investigated or that Mr Foster was given an opportunity to argue against that dismissal decision.

Section 396

[37] Section 396 sets out a number of preliminary issues about which I must be satisfied before considering the merits of the application. I am satisfied that none of these matters represent an impediment to consideration of the application.

[38] I note that there is no suggestion that, consistent with the note left at Mr Foster's house, he abandoned his employment. ATS clearly still considered Mr Foster to be an employee when it dismissed him on 22 October 2012.

Section 387

[39] This section states:

“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.”

[40] I have considered each of these factors.

Valid Reason

[41] Notwithstanding subsequent legislative changes, I have applied the approach set out by Northrop J in Selvachandran v Peterson Plastics Pty Ltd in the following terms:

“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 reasons 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 treated fairly.”

[42] I do not consider that Mr Foster's behaviour toward customers in September, or again on 9 or 18 October 2012 can be properly described as a valid reason for his dismissal. ATS allowed Mr Foster to continue to work after the September and 9 October incidents. The 18 October 2012 incident involving "Chester" has not been established to me as a matter which was investigated or a matter of significance approaching a valid reason for termination of employment.

[43] To the extent that ATS management may have concluded that Mr Foster was under the influence of drugs or other substances, this has not been made out.

[44] Mr Foster's conduct in the car with Mr Overell is properly described as misconduct but, in circumstances where somewhat vague accusations about him were made, where he was told the police had been called, required to wait for some time at a roadside and then suspended and taken home, I have concluded that these actions were largely the product of understandable frustration.

[45] I have considered the extent to which the totality of Mr Foster's conduct can be regarded as a valid reason for his dismissal. Given the absence of evidence about disciplinary action applied to him and the circumstances applicable on 18 October 2012, I do not think that a valid reason conclusion is sustainable.

[46] Documented warnings, or specific evidence about "Chester’s" concerns may have resulted in my reaching a different conclusion.

Notification of the reason

[47] I have concluded that, in the telephone discussion with Mr Foster on 22 October 2012, Mr Hounslow specified that the reason for his dismissal was the customer complaints about him. I am not satisfied that Mr Hounslow specified the particular actions which were the subject of these complaints. To the extent that Mr Foster's behaviour in the car with Mr Overell was a reason for his dismissal, I am not satisfied that this was explained to Mr Foster.

Opportunity to respond

[48] I do not consider that Mr Foster was given an opportunity to respond to the ATS proposal to terminate his employment.

Unreasonable refusal to allow a support person

[49] Mr Foster did not request a support person. Consequently, in a strict sense, there was no unreasonable refusal of a support person. However, the nature of the telephone discussion between Mr Foster and Mr Hounslow meant that it was not available for Mr Foster to request a support person. I have concluded that this is a further factor which indicates unfairness.

Warnings about unsatisfactory performance

[50] I am not satisfied that the various discussions which ATS supervisors had with Mr Foster represented formal warnings as distinct from discussions about the expectations of him. ATS clearly has a disciplinary policy framework. This is demonstrated by the Human Resources "Record of Formal Meeting" which was completed for Mr Hounslow by a human resources officer despite the fact that this officer was not involved in the discussion which resulted in the termination of Mr Foster's employment. Documented evidence of warnings has not been provided to me to show that Mr Foster was clearly told what he was doing wrong and the consequences of repetition.

Size of the ATS enterprise

[51] ATS is a large organisation which I expect would, or should, have policies and procedures in place to ensure a fair approach to disciplinary processes. I am not satisfied that, in this situation policies of this nature were properly followed.

Absence of dedicated human resource management specialists

[52] ATS have dedicated human resource management specialists. Mr Hounslow’s evidence indicated that he consulted with at least one such person.

Other matters relevant

[53] I have taken into account that Mr Foster worked in a regional location and that supervision of his work was inherently difficult. This does not, however, automatically create a lower bar for the consideration of fairness issues.

Conclusion - harsh, unjust or unreasonable

[54] I have concluded that the termination of Mr Foster's employment was harsh in that I am not satisfied that his behaviour warranted termination of employment. I have concluded that it was unjust in that the process followed to effect that dismissal was inherently unfair. It was unreasonable in that evidence of the alleged offensive behaviour to a customer of 18 October 2012 which was relied upon by ATS, was not made out. Consequently, I have decided that, for the purposes of s.390, the termination of Mr Foster's employment was unfair.

Remedy

[55] Section 390 provides that in these circumstances a remedy may be prescribed. The primary remedy is reinstatement. Mr Foster does not seek reinstatement and I am satisfied that the relationship between he and ATS is such that reinstatement would be entirely inappropriate. I have concluded that an order for compensation is appropriate in these circumstances.

[56] Section 393 sets out the criteria to which I must have regard in determining an amount of compensation. I have considered each of these factors.

[57] There is nothing to indicate that the amount being contemplated will affect the viability of ATS. Mr Foster had been employed only since March 2012. I consider that to be a short employment duration which mitigates against any significant compensation amount.

[58] Had Mr Foster not been dismissed on 22 October 2013 I have concluded that he would have been given a warning and, given the pattern of his behaviour, I consider that he was likely to evoke further customer complaints. I think it likely that his employment would have been terminated within two months.

[59] Mr Foster's evidence is that he applied for various jobs and had undertaken a limited amount of casual work. On the evidence before me, I am not satisfied that Mr Foster has made substantial efforts to obtain further employment. I have discounted the amount of compensation due to him accordingly, on the basis of earnings and employment efforts. I have also noted that Mr Foster received a payment in lieu of notice.

[60] I have not further discounted the amount of compensation applicable to Mr Foster on account of his misconduct because of the concerns I have already expressed about the circumstances impacting on his behaviour.

[61] I have applied the approach set out in Sprigg v Paul's Licensed Festival Supermarkets 2and have concluded that an amount equating to six (6) weeks pay is appropriate.

[62] An Order [PR533530] reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

T Foster on his own behalf.

M Purcell for Active Tree Services Pty Ltd.

Hearing details:

2013.

Adelaide:

January 22.

 1   Mr Overell’s statement of 11 January 2012

 2   Print R0235

Printed by authority of the Commonwealth Government Printer

<Price code C, PR533516>