Trevor Parr v Southern Cross Cleaning

[2016] FWC 8864

[2016] FWC 8864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Parr
v
Southern Cross Cleaning
(U2016/11261)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 13 DECEMBER 2016

Application for relief from unfair dismissal – valid reason – unfair process - reinstatement.

[1] On 12 September 2016 Mr Parr lodged an application, pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Southern Cross Cleaning (SA) Pty Ltd (Southern Cross Cleaning). That application was the subject of a determinative conference on 6 December 2016.

[2] Mr Parr represented himself and Southern Cross Cleaning was represented by its Human Resources Manager, Ms Stephanos. I note that the Southern Cross Cleaning Managing Director, Mr Petty was also present in this conference.

[3] There is no dispute that Mr Parr’s application was lodged within the statutory time limit and that Mr Parr was a person protected from unfair dismissal. Southern Cross Cleaning agrees that it was not a small business and the termination of Mr Parr’s employment is not purported to be a case of genuine redundancy.

[4] The background to the application is relatively straightforward. Southern Cross Cleaning is a contract cleaning company. Amongst its clients is the Glenunga High School where Mr Parr worked at the time of the termination of his employment. Mr Parr was engaged as a regular casual employee on 11 February 2011. The parties disagree over the extent to which various performance issues were raised with him in the course of his employment. Notwithstanding this, the parties agree that Mr Parr and Southern Cross Cleaning disagreed over payments allegedly due in 2012 and that, for some years after that, Mr Parr protested by refusing to wear the Southern Cross Cleaning uniform. Mr Parr agrees that he was warned about the uniform requirement on a number of occasions. On 2 September 2016 Mr Parr was advised that his employment was terminated with effect from 1 September 2016. The letter confirming that termination of employment referred to various warnings with respect to the requirement that Mr Parr wear a uniform and to an allegation that, on 1 September 2016 he had left work some time before he was scheduled to complete his shift.

[5] Mr Parr contends that the termination of his employment was unfair because he was wrongly accused of fraudulently recording his work hours whereas in fact he had never been required to sign in or about filling out the timesheet. Mr Parr asserts that after he was given a final written warning on 20 June 2016 he always worn the required uniform. Further, Mr Parr contends that the manner in which his employment was terminated was inherently unfair. Mr Parr seeks reinstatement with payment of income lost since the termination of his employment.

[6] Southern Cross Cleaning asserts that Mr Parr has repeatedly not followed instructions and warnings in relation to wearing his uniform. After a final warning in this regard 1 on 20 June 2016, Southern Cross Cleaning concluded that Mr Parr had not worn his uniform on 19 August 2016 and decided to terminate his employment on 1 September 2016. On that day, the Southern Cross Cleaning Area Manager attended the Glenunga High School and concluded that Mr Parr had left the site at least 45 minutes prior to the finishing time recorded on his timesheet. The Area Manager attended the site again on 2 September 2016 and advised Mr Parr of the termination of his employment. Southern Cross Cleaning asserts that Mr Parr’s repeated failure to comply with a legitimate instruction that he wear his nominated uniform represents a valid reason for the termination of his employment. Additionally, Southern Cross Cleaning asserts that Mr Parr’s behaviour in leaving the site before his nominated finish time, and not signing his timesheets, represented fraudulent behaviour warranted summary dismissal.

The evidence

[7] Mr Parr’s evidence went to his employment history with Southern Cross Cleaning. Mr Parr agreed that he had previously been warned relative to the requirement that he wear a T-shirt provided by Southern Cross Cleaning but advised that he had worn the T-shirt on every workday since the last warning on 20 June 2016.

[8] Mr Parr’s evidence was that he was required to work from 6.00 am to 10.25 am during school days. Mr Parr confirmed that he was a permanent part-time employee and that he was sometimes called in to undertake work during school holidays. He was otherwise not paid during those school holiday periods.

[9] Mr Parr’s evidence was that, when he was advised of the termination of his employment, the Southern Cross Area Manager also advised him that there had been complaints about his work. Mr Parr asserted that he had never been required to sign in and out of work. He advised that his timesheet was filled in by his supervisor and was then forwarded to Southern Cross Cleaning. In terms of his attendance at work on 1 September 2016, Mr Parr asserted that he was present for the nominated work hours but that he would normally be undertaking cleaning work outside of the school buildings at the time that his Area Manager attended on 1 September 2016.

[10] Mr Parr acknowledged seeing the employment agreement 2 under which he was engaged in 2011, but did not recall attending any form of induction programme.

[11] Mr Parr advised that, when he was told of the termination of his employment on 2 September 2016 he was about to undertake what he described as his “bin work” outside of the school buildings.

[12] Ms Stephanos was, before November 2012, the Senior Payroll Officer for Southern Cross Cleaning. She is now the Human Resources Manager. Her evidence went to the extent to which she understood that complaints made by Mr Parr in December 2012 were resolved in correspondence she forwarded to him in January 2013. Ms Stephanos’ evidence went to the extent to which she was aware of complaints over the quality of cleaning work at Glenunga, issues associated with staff not adhering to work times and security requirements, and not wearing uniforms. Her evidence was that these issues were raised with all the cleaners in correspondence of 23 March 2016. 3 In June 2015 Ms Stephanos became aware that Mr Parr was still not wearing his uniform and that he remained concerned over payroll issues relating to 2011 and that she subsequently sent him correspondence reminding him of the requirement that he wear his uniform and inviting him to raise any outstanding payroll issues.4 This letter concluded on the following basis:

“If you continue to arrive at work not wearing your Southern Cross Cleaning uniform, you will be terminated from your employment, this is your final warning regarding this matter.”

[13] Following an inspection of the Glenunga High School site on 19 August 2016, undertaken by the Area Manager, Ms Stephanos was made aware that Mr Parr continued to not wear his uniform and she and the Area Manager concluded that his employment should be terminated accordingly with effect from 1 September 2016. When she was subsequently made aware that Mr Parr was not at work during his nominated work hours on that day, Ms Stephanos participated in the decision to terminate his employment on the following day because he had not worn his uniform and because he had fraudulently recorded his work times whilst leaving the site early on 1 September 2016.

[14] Ms Larson is the Southern Cross Cleaning Area Manager responsible for the Glenunga High School. Her evidence went to the extent to which the High School had indicated in March 2016 that it was unhappy with the cleaning staff attendance times and cleaning standards. Ms Larson confirmed a written warning provided to Mr Parr in March 2016 5 which specified the requirement that he attend work for 4.25 hours starting at 4.00 pm and concluding at 8.15 pm. This letter referred to concerns over an inadequate standard of cleaning of toilets and warned Mr Parr in this regard. It also raised concerns over the extent to which he was allegedly not complying with security requirements and instructed him that he was to wear the Southern Cross Cleaning shirt to each and every shift.

[15] Ms Larson’s evidence was that on 14 June 2016 she again noted that Mr Parr was still not wearing his uniform. Her evidence was that Mr Parr complained that he was not being paid correctly and that she referred this issue to Ms Stephanos.

[16] Ms Larson’s evidence was that on 27 June 2015 she again saw Mr Parr not in uniform and reminded him of the requirement that he wear the uniform.

[17] Ms Larson advised that on 27 June 2016 and on 18 July 2016 she had sent text messages to Mr Parr relative to working arrangements and that at least one of these text messages referred to the requirement that he provide a timesheet.

[18] Ms Larson’s evidence was that, on 19 August 2016 she noted that Mr Parr was again not wearing the uniform. She confirmed that he had been adequately instructed to do so and asked whether his pay issues had been resolved. Later that day, Ms Larson discussed Mr Parr’s failure to wear his uniform with Ms Stephanos. At some time between 19 August 2016 and 31 August 2016 Ms Larson and Ms Stephanos agreed that Mr Parr’s employment should be terminated. Ms Larson advised that the delay in determining that Mr Parr should be dismissed was because she and Ms Stephanos were busy over this time. As part of this decision Ms Larson advised that she and Ms Stephanos decided there was no point in discussing the matter with Mr Parr as he had been given warnings.

[19] Ms Larson’s evidence was that when she attended the Glenunga High School at around 9.45 am on 1 September 2016 she looked around the whole school, including the toilets, for Mr Parr, in order to give him the termination of employment advice. Ms Larson again attended the school at 9.17 am on 2 September 2016. On this occasion she had a revised termination of employment advice. 6 Ms Larson advised that Mr Parr had packed up and appeared ready to leave again. He was not wearing his required uniform. Ms Larson’s evidence was that:

“7) …“I then gave him his termination letter and explained the reasons for termination. Trevor said “It was unfair” I said “I have verbally warned you on many occasion about not wearing your shirt and you have had previous written warnings about it also. Trevor dais “How do you know I am not wearing it under my pullover” I said “Because I have been here and seen you haven’t had it on. You were not wearing it the day our Operations Manager Karen Leal was here either” He was not wearing it today. He said it is your word against mine. He then said “well if I had known I could wear it under my jumper I would have” and continued to say “I will wear it then” I replied “it is too late you have been terminated. He continued to complain about previous money we owe him, I said “Judith wrote to you to clear that up and you have never responded” he then replied with “Judith answered him all you can”

8) Trevor then advised he will go to fair Work and dispute this letter, I said “leaving early when you have signed in at 6.00am and signed out at 10.25am is fraudulent and considered stealing time” Trevor said “I don’t sign in and out, someone else does it” I then asked if he was finished he replied yes, I asked for the keys and advised him he is required to work his full shift time. Trevor said “Oh well what can I do when the school kids are around, you never told me I had to work my full shift time” Trevor also said “It is very unfair and I will fight this” I replied “It is part of terms of your employment that you work a full shift and wear your uniform” He then walked off, I left the site at 9.45am.” 7

[20] It is appropriate at this point that I note that the Southern Cross Cleaning Managing Director, Mr Petty advised that Southern Cross Cleaning could re-employ Mr Parr at another site. It appears that the parties had some discussions around this possibility but did not reach agreement on it.

Findings

[21] Before setting out my conclusions about whether the termination of Mr Parr’s employment was harsh, unjust or unreasonable, I have summarised the various conclusions I reached about the relevant facts.

[22] I have concluded that Mr Parr did not generally sign his timesheets and that other Southern Cross Cleaning personnel filled in those timesheets on a regular basis. I am not satisfied that the evidence establishes that Mr Parr was specifically advised that he was required to sign his timesheets.

[23] I have concluded that Mr Parr deliberately engaged in a campaign of disobedience with respect to the wearing of his uniform. I do not accept Mr Parr’s evidence that, after receiving the final warning in this respect in June 2016, he always wore his uniform, which consisted of a specified T-Shirt. I have concluded that the entire basis for the initial decision to terminate Mr Parr’s employment was founded on Ms Larson’s observations that Mr Parr was not wearing that T-shirt on 19 August 2016. In this respect I prefer the evidence of Ms Larson to that of Mr Parr.

[24] I have concluded that it is quite possible that Mr Parr had not left the high school site at 9.45 am on 1 September 2016 but that he had packed up his cleaning gear and was undertaking work elsewhere on the school grounds such that he was not seen by Ms Larson.

Section 387

[25] This section 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.”

[26] I have considered each of these factors in the context of the evidence before me.

Valid Reason

[27] In Selvachandran v Peteron Plastics Pty Ltd⁸ Northrop J described the basic principles associated with a valid reason for employment termination. Notwithstanding subsequent changes to the legislation I have applied this approach.

[28] I have concluded that there was a valid reason for the termination of Mr Parr’s employment in that he had again failed to wear the required T-shirt on 19 August 2016. That requirement had been clearly spelt out to him. It was a reasonable instruction given to Mr Parr that he was to wear the required T-Shirt when he was working in and around school premises.

[29] To the extent that Southern Cross Cleaning relies on the assertion that Mr Parr had not completed and signed his timesheets, I am not satisfied that this requirement was necessarily specified to him. I have concluded that Southern Cross Cleaning management had acquiesced to an arrangement whereby he had not signed his timesheets for at least, a very long time. Further, to the extent that Southern Cross Cleaning relied on an assertion that Mr Parr had left the high school premises before his specified work finish time on 1 September 2016, I am not satisfied that this has been established. Accordingly neither of these factors can be considered to be valid reasons for the termination of Mr Parr’s employment.

Notification of the reason

[30] The employment termination letter of 1 September 2016 confirmed to Mr Parr that the reason for the termination of his employment related to his continued refusal to wear the required uniform. Accordingly, I am satisfied that Mr Parr was notified of the reason for the termination of his employment.

Opportunity to respond

[31] Mr Parr was not given any opportunity to respond to the proposition that his employment would be terminated. Ms Larson’s evidence confirms that she and Ms Stephanos decided that this was simply not necessary. It is very clear on the evidence before me that the termination of employment decision was made before Ms Larson attended the high School site on 1 September 2016 in order to advise Mr Parr of his dismissal. This is a factor indicative of unfairness.

Unreasonable refusal to allow a support person

[32] Southern Cross Cleaning did not refuse to allow Mr Parr a support person to assist him in any discussions relating to the termination of his employment. However, the process followed simply did not give Mr Parr the opportunity to have any such discussions such that this factor simply cannot be regarded as indicative of fairness.

Warnings about unsatisfactory performance

[33] The evidence establishes that Mr Parr had been comprehensively warned about the requirement that he wear the necessary T-shirt. The final warning of 20 June 2016 made it absolutely clear that termination of employment would be a consequence of his continued refusal to wear his uniform. Notwithstanding this, Southern Cross Cleaning then undermined the integrity of that final warning by simply providing a verbal instruction to Mr Parr when he failed to comply with it soon afterwards. On that occasion, Ms Lawson simply reminded him to wear his uniform. 9

Size of the Southern Cross Cleaning enterprise - impact on procedures

[34] The Employer’s Response to the application (Form F3) confirms that Southern Cross Cleaning is a substantial employer. Accordingly, I would have expected it to have clear procedures to deal with a circumstance such as this. The length of the time between 19 August 2016, when Ms Larson noted that Mr Parr was not wearing his uniform, and 1 September 2016, when Southern Cross Cleaning proposed to advise Mr Parr of his dismissal, is not indicative of the type of procedures and policies which would be expected to apply. Additionally, uncertainties over time records is a matter I would have expected would be covered by the Southern Cross Cleaning policies.

Size of the Southern Cross Cleaning enterprise-access to human resources management expertise

[35] Ms Stephanos is the Southern Cross Cleaning Human Resources Manager. It is clear that she was actively involved in the decision to dismiss Mr Parr. In this respect I am unable to reconcile the decision to summarily dismiss Mr Parr with effect from 1 September 2016 when the incident that gave rise to that termination decision occurred on 19 August 2016. I am not satisfied that a reasonable explanation of that delay, which involved Ms Stephanos and Ms Larson has been provided.

Other matters considered relevant

[36] The termination of Mr Parr’s employment occurred on a summary basis. I am not satisfied that summary dismissal has been established as appropriate in these circumstances. Notwithstanding that Mr Parr received various warnings about the obligation to wear the required T-shirt, Ms Larson’s evidence is that, even after the final warning was issued to him, she observed him not wearing that T-shirt and simply provided verbal advice to him about it. Further, and as I have already observed, the decision to summarily dismiss Mr Parr on 1 September 2016 is inconsistent with the extent to which it related to his behaviour on 19 August 2016 and the fact that Southern Cross Cleaning had allowed him to continue to work in that intervening time. Simply put, if Southern Cross Cleaning considered Mr Parr’s actions in not wearing his uniform warranted summary dismissal, it should not have left him at work after 19 August 2016.

[37] Secondly, it is appropriate here that I observe that I am not satisfied that other matters raised with Mr Parr, including school security and the standard of his cleaning activity, were taken into account in the employment termination decision. I think those issues reflect the extent to which the March 2016 ‘warning’ was given to a range of employees.

Conclusion - harsh, unjust or unreasonable

[38] I have concluded that the summary termination of Mr Parr’s employment was harsh in that it was disproportionate to the nature of his misconduct in failing to wear his designated uniform. Had that termination been through the provision of notice, I may have arrived at a different conclusion. I do not consider that the termination of Mr Parr’s employment should be regarded as unjust, because I have concluded that he continued to refuse to wear the T-shirt which Southern Cross Cleaning required him to wear and he was aware that a failure to comply with that instruction would result in dismissal. Most significantly, I consider that the termination of Mr Parr’s employment was unreasonable because he was not afforded a reasonable opportunity to discuss that termination proposal before it was put into effect. Such a discussion may have bought about a different result rather than dismissal. Further, to the extent that the termination decision was reinforced by conclusions that Mr Parr had left work early and had failed to complete his timesheets in accordance with instructions, I am not satisfied that these allegations have been made out.

[39] Consequently, I have concluded that the termination of Mr Parr’s employment was unfair.

[40] In these circumstances s.390 of the FW Act establishes that a remedy is available. The primary remedy is that of reinstatement. Mr Parr has sought reinstatement to his former position at Glenunga High School. Southern Cross Cleaning has opposed that particular form of reinstatement on the basis that another employee has been engaged to undertake those tasks. However, Mr Petty has confirmed that Southern Cross Cleaning is prepared to reinstate Mr Parr. I have taken this to indicate that there is no argument that the relationship between Mr Parr and Southern Cross Cleaning is irrevocably destroyed. As reinstatement is the primary remedy provided for pursuant to s.390, I consider it to be appropriate in these circumstances.

[41] Section 391 of the FW Act provides that reinstatement may be to the position which Mr Parr held immediately before the termination of his employment, or to another position on terms and conditions no less favourable than those on which he was employed immediately before that dismissal. I consider that it would be appropriate for Southern Cross Cleaning to be given the option of offering reinstatement to Mr Parr on the same terms and conditions applicable before the termination of his employment, at either Glenunga High School or at another school a reasonable distance from his home. If agreement on that matter cannot be achieved within the next two weeks, either party may refer this issue back to me for determination.

[42] Section 391(2) enables the Fair Work Commission to make an order to maintain the continuity of Mr Parr’s employment. I consider that to be appropriate in these circumstances given my conclusion that the termination of Mr Parr’s employment may have been avoided.

[43] Section 391(3) provides that the Fair Work Commission may make an order to restore Mr Parr’s lost pay. I am not persuaded that such an order is appropriate in these circumstances. It seems to me that, notwithstanding my finding that the termination of Mr Parr’s employment was unfair, it was Mr Parr’s acts of deliberate disobedience that fundamentally resulted in his dismissal. Consequently I do not consider it appropriate that he be paid for the period between the termination of his employment and his reinstatement.

[44] An Order (PR588398) reflecting this decision will be issued.

[45] Two further final observations are appropriate in this matter. Firstly, Mr Parr should expect that a failure to wear his uniform in the future, in accordance with the instructions issued by Southern Cross Cleaning, will result in the termination of his employment. Secondly, I would anticipate that Southern Cross Cleaning will instruct Mr Parr to complete and sign his timesheets and that a failure to do so will lead to disciplinary action which could culminate in the termination of his employment.

Appearances:

T Parr on his own behalf.

J Stephanos for the Respondent.

Hearing Details:

2016.

Adelaide:

December 6.

 1   Exhibit R2, Attachment C

 2   Exhibit R2, Attachment D

 3   Exhibit R2, Attachment A

 4   Exhibit R2, Attachment C

 5   Exhibit R3, Attachment A

 6   Exhibit R3, Attachment F

 7   Exhibit R3, paras 7 and 8

8 (1995) 62 IR 371 at 373

 9   Exhibit R3, para 4

Printed by authority of the Commonwealth Government Printer

<Price code C, PR588397>