Timothy Monteith v Brandon Electrical Pty Ltd T/A Brandon Electrical

[2013] FWC 4348

[2013] FWC 4348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Monteith
v
Brandon Electrical Pty Ltd T/A Brandon Electrical
(U2013/6340)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 JULY 2013

Application for unfair dismissal remedy.

[1] Mr Timothy Monteith (the Applicant) was employed by Brandon Electrical Pty Ltd (the Respondent) from 18 April 2010 until his employment was terminated on 25 January 2013.

[2] On 11 February 2013, the Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed.

[3] The Applicant appeared for himself and Mr Kevin McCosh of the National Electrical Communications Association (NECA) appeared for the Respondent.

[4] With the agreement of the parties the matter was heard in conference. Each witness gave evidence on oath and was able to be questioned by the other party and by myself.

[5] The Applicant gave evidence on his own behalf and Mr Darren Carter and Mr Drew O’Donoghue, the Respondent’s Directors, gave evidence for the Respondent.

Jurisdiction of Fair Work Commission

[6] There is no dispute that the Applicant is a person who was protected from unfair dismissal. Further it is not disputed that the Respondent was not at the time of the termination of the Applicant’s employment a small business. The Fair Work Commission (the Commission) has the jurisdiction to determine the application.

Facts not in dispute

[7] The Applicant was an apprentice electrician. It is uncontested that in 2012 the Applicant performed work for Gleeco Pty Ltd (Gleeco). The Respondent had provided electrical work to Gleeco on a commercial basis for approximately nine years. A list of invoices was put into evidence which showed that the work performed by the Respondent for Gleeco ranged from very small jobs to more substantial work.

[8] It was the Applicant’s evidence that in 2012, he was approached by Mr Chris Gleeson, the owner of Gleeco, who asked him if he wanted to perform small jobs for him for cash. It was the Applicant’s evidence that in 2012 he did three cash jobs for Gleeco. The Applicant did not inform his employer about this work.

[9] It was Mr O’Donoghue’s evidence that in January 2013 he became aware that the Applicant had performed work for Gleeco on a cash payment basis. Mr O’Donoghue rang Mr Gleeson and asked him if the Applicant had been performing work for him after hours. Mr Gleeson told Mr O’Donoghue that the Applicant had been doing some work for him as he had to make some savings but that the bigger jobs would still be given to the Respondent. 1

[10] On 25 January 2013, the Respondent had a tool box meeting of employees at which Mr Carter and Mr O’Donoghue told the employees they could not do outside electrical work. 2

[11] On 25 January 2013, Mr O’Donoghue called the Applicant to a meeting to discuss the allegations. The Applicant acknowledged that he had been performing the work and he confirmed that he knew that Gleeco was a customer of the Respondent. The Applicant was asked if he had used the company’s equipment and stock to perform the work and he said he had not.

[12] The Applicant told Mr O’Donoghue and Mr Carter that he did not know that he was doing anything wrong. The Applicant told Mr O’Donoghue and Mr Carter that he believed his employment was being terminated for other reasons. He was told that his employment was being terminated because he performed unauthorised work for Mr Gleeson and that they could not trust him as an employee any longer. 3

[13] Mr Carter forwarded a letter to the Applicant dated 25 January 2013 in which he confirmed the termination of the Applicant’s employment. In that letter Mr Carter advised that the company viewed the Applicant’s actions as “a breach of his common law obligations of loyalty, honesty, confidentiality and mutual trust. Because of his actions the company no longer had any trust in him as an employee.” The Applicant was paid his outstanding wages and entitlements. In addition the Applicant was paid one week’s pay in lieu of notice. 4

The Evidence of the Applicant

[14] It was the Applicant’s evidence that he was not provided with any prior notice of the matters that were to be discussed at the meeting on 25 January 2013. 5 Further it was his evidence that he had never been told that he should not work after hours for a customer of the Respondent.6 It was his evidence that other employees, in particular Mr Michael Menaro, had performed work for Mr Gleeson and his employment had not been terminated.7

[15] The Applicant accepted that the work he was asked to perform was work that could have been done by the Respondent.

[16] It was the Applicant’s evidence that he had never been disciplined by his employer prior to this event. 8 It was his evidence that he thought his employment was terminated because he had told Mr O’Donoghue that he had been approaching the union about the enterprise agreement.9 The Applicant further suggested that as he was due to finish his apprenticeship in two weeks time his entitlement to a higher rate of pay10 may have influenced the Respondent’s decision.

[17] The Applicant accepted that he had done the wrong thing however it was his submission that he should have been given a warning as he was not aware that it was the wrong thing to do and had he been aware he would not have done it. 11

[18] It was the Applicant’s evidence that he had not performed work for any other customer of the Respondent.

[19] The Applicant gave evidence that he only did the additional work because he had a new baby and was supporting a new family. 12

[20] On 28 January 2013, the Applicant received, by email, his letter of termination. 13

[21] The Applicant gave evidence that after the termination of his employment the Respondent took the necessary steps to ensure that the paperwork associated with the finalisation of his apprenticeship was completed.

The Respondent’s evidence

[22] Mr Carter and Mr O’Donoghue accepted that their employees did occasional work for friends and family and would on occasions use their parts and equipment. It was accepted that employees would either reimburse the Respondent or replace the parts used. It was their evidence that this situation was different because the work the Applicant did was the type of work they performed for their customer.

[23] Mr Carter and Mr O’Donoghue knew that the Applicant and another employee had performed work at Mr Gleeson’s house. This work was not a problem for Mr Carter and Mr O’Donoghue as it was not work that would usually be performed by the Respondent. Mr Carter investigated the Applicant’s allegations that other employees had performed work in similar circumstances. 14 He was unable to find any evidence that other employees had performed work for customers after hours. Mr Carter exhibited an email of an employee who denied that he had performed cash work for a customer. This employee was not called to give evidence.

[24] Mr Carter and Mr O’Donoghue gave evidence that since this event they had not had work from Gleeco. They accepted that 80% of the decline in this work was due to Gleeco losing a contract but said that did not explain the other 20%.

[25] Prior to making a decision to terminate the Applicant’s employment Mr O’Donoghue rang NECA for advice. 15 He was told that the Applicant’s conduct, if substantiated, was a breach of his common law obligations and that the allegations should be put to the Applicant who should be given an opportunity to respond.

[26] Mr Carter denied that the Applicant’s employment was terminated for any reason other that he had performed unauthorised work for a valued customer of the Respondent. 16

Was the termination of employment harsh, unjust or unreasonable?

[27] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the following:

s387(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)

[28] There was no dispute that the Applicant engaged in the conduct alleged. The issue is whether the performance of work by an employee for a customer of his or her employer provides the employer with a valid reason to terminate the employee’s employment. Here the Applicant stated that he did not know that he should not undertake this work. However even accepting this to be true, the Applicant breached one of the fundamental obligations owed by an employee to their employer, namely loyalty. The Applicant performed work that he knew was work that was normally performed by his employer for Gleeco. He performed the work for cash and he received a financial gain at his employer’s expense. The Respondent had a valid reason for the termination of the Applicant’s employment.

s387(b) - Whether the Applicant was notified of that reason

[29] The Applicant was advised of the allegations prior to the decision being made to terminate his employment. It was submitted by the Respondent that it was not appropriate for the Applicant to be advised of the reasons for the dismissal until after the Applicant had been given an opportunity to respond to the allegations.

s387(c) - Whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person

[30] The Applicant was given an opportunity to respond to the allegations before the decision to terminate his employment was taken and he did respond.

s387(d) - Any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal

[31] The Applicant did not request a support person be present at the meeting. This is unsurprising given the Applicant did not know the purpose of the meeting.

s387(e) - If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[32] The dismissal was unrelated to the Applicant’s performance of work.

s387(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

[33] The Respondent is now a small business however, at the time of the dismissal, it had 15 employees. The Respondent gave evidence that it sought advice from NECA prior to the dismissal

s387(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;

[34] The Respondent submitted that it had access to such expertise via NECA.

s387(h) - Any other matters that the FWC considers relevant.

[35] The Applicant submitted that regard should have been had to his unblemished work performance and his honesty at the meeting on 23 January 2013. Regard should also be had to the fact that there was no policy in place that advised employees that they could not work for customers of the Respondent out of hours. Further it was submitted that regard should be had to the circumstances of the Applicant namely, he was an apprentice with a young family.

[36] The Respondent submitted that the Applicant was aware that he was not allowed to work for customers of the Respondent. The Respondent submitted that the Applicant received this information as part of his apprenticeship training. No evidence was called to support that submission. The Respondent submitted that it had regard to the personal circumstances of the Applicant and that is why it paid the Applicant a week’s pay in lieu of notice when it was entitled to terminate the Applicant’s employment summarily.

Conclusion

[37] I do not find that the Applicant has been treated differently to other employees. There is no evidence of other employees performing work in competition with the Respondent’s business. Further even if they did, there is no evidence that the Respondent knew this was occurring.

[38] Further, I do not find that the Respondent had any other reasons for terminating the Applicant’s employment. The Applicant’s apprenticeship was due to end in two weeks. The Respondent had no obligation to offer the Applicant ongoing work. The Respondent had no reason to manufacture an excuse to terminate the Applicant’s employment when it did. Had it not offered the Applicant employment at the end of his apprenticeship his employment would have come to an end and the Respondent would not have faced an unfair dismissal claim.

[39] The Respondent had a valid reason for the termination of the Applicant’s employment. While I accept that the Applicant was ignorant of his obligations such ignorance does not excuse his conduct. He knew that he was performing work that could have been performed by his employer. By working off the books he was in direct competition with his employer for the work. The Applicant was afforded procedural fairness albeit it would have been preferable had the Applicant been advised of the purpose of the meeting prior to the meeting occurring so that he could have considered whether to exercise his right to have a support person at the meeting.

[40] I have taken into account the Applicant’s honesty and his personal circumstances however the Respondent was entitled to protect its business by terminating the Applicant’s employment.

[41] For the reasons set out above I find that the termination of the Applicant’s employment was not harsh unjust or unreasonable and therefore the application is dismissed and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

T Monteith his own behalf.

K McCosh of the National Electrical Communications Association for the Respondent.

Hearing details:

2013.

Melbourne:

July 1.

 1   Exhibit R2 at [14]

 2   Exhibit A1 at [12]

 3   Exhibit R1 at [12]

 4   Ibid at DC1

 5   Exhibit A1 at [15]

 6   Ibid at [19]

 7   Exhibit A2 at [4]

 8   Exhibit A1 at [19]

 9   Ibid at [24]

 10   Ibid at [25]

 11   Ibid at [27]

 12   Ibid at [8]

 13   Exhibit A1 at [22]

 14   Exhibit R1 at [14]

 15   Exhibit R2 at [15]

 16   Exhibit R1 at [15]

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