Troy Jarvis v Croker Constructions

[2016] FWC 2377

[2016] FWC 2377 [Note: An appeal pursuant to s.604 (C2016/3701) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Jarvis
v
Croker Constructions
(U2015/11964)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Troy Jarvis was employed by Croker Constructions Pty Ltd from 15 January 2014 until 2 September 2015. He alleges he was unfairly dismissed. Croker terminated Mr Jarvis’ employment for dishonesty which it considered to be serious misconduct and for breaching company policies. Mr Jarvis was employed as a casual plant operator.

[2] Croker submitted that the matter involved some complexity and representation would enable the matter to proceed more efficiently. Croker submitted that Mr Jarvis had initially been represented. Mr Jarvis submitted that the matter would be dealt with more quickly if Croker represented itself. I accept that it was not unreasonable for Croker to assume that representation would not be challenged. Mr Jarvis had advised on 7 December 2015 that it had no objection to Croker being represented. While I accept that it is not beyond argument that the matter did not involve any particular complexity, I accepted the submissions of Croker and granted permission to appear.

[3] On 2 September 2015, Ms Tania Silk, who is the General Manager at Industrial People Pty Ltd - a labour hire company that provided labour to Croker, attended the Holland Park site where Mr Jarvis was working. She said that Mr Jarvis approached her and introduced himself as the supervisor on site. 1 She said Mr Jarvis said he was looking after the site whilst Mr Moyes was on leave. She had a lengthy discussion with Mr Jarvis about her staff, the culture and her safety policies and procedures. She said Mr Jarvis discussed safety concerns and asked her about her employees. He told her that he was concerned about safety on the site and he told her he had concerns about the calibre of personnel being sent to the site by her company. She said she shared information with Mr Jarvis that she would normally only share with decision makers or supervisors.2

[4] Ms Silk said Mr Jarvis asked to meet with her to discuss the safety concerns and other matters related to Croker and her employees which he had concerns about. Ms Silk provided Mr Jarvis with her card. Soon after she received a text message from Mr Jarvis proposing a meeting time. 3 Mr Jarvis put to Ms Silk that the text message was a response from him to a message sent by her. Ms Silk said she never sent Mr Jarvis a text message,4 and no such text message was tendered.

[5] Ms Silk contacted Mr Nathan Croker, Croker’s Managing Director, to ask what was going on and why she had not been introduced to the new supervisor. Mr Croker told her that Mr Jarvis was not a supervisor. She said she felt she had been lied to by Mr Jarvis and that he had misrepresented Croker’s and himself and had posed as a supervisor. She told Mr Croker she thought his behaviour was inappropriate and unacceptable. 5

[6] Mr Jarvis gave evidence that he occasionally was required to perform supervisory duties. He said he made one approach to Ms Silk. He said he did so to meet his obligations to “act with integrity,” “act as an ambassador”, “strive to provide a work environment where employee safety and wellbeing are paramount”, uphold OH&S and duty of care responsibilities.” 6

[7] In cross examination Mr Jarvis accepted that he did not hold any position of authority or seniority at Croker. 7

[8] It was his evidence that when supervisors leave the site they come up to him and say “look after the guys while I’m gone”. 8 Mr Jarvis accepted that he was not on the safety committee nor was he a safety representative.9

[9] Mr Jarvis said he was given responsibility on a daily basis to “help the labourers come up to speed and keep every – not just labourers, some of the operators on small machines. So pretty much I was in – I had a responsibility job and was in a position of responsibility pretty much on a daily basis since I worked at Crokers.” 10

[10] Mr Jarvis denied telling Ms Silk he was a supervisor. 11 Mr Jarvis said he approached Ms Silk and they introduced themselves and he told her he was concerned about some of the labourers that had been coming to site and that they had been “stepping out in front of machines and potentially could hurt themselves.”12 Mr Jarvis denied speaking specifically about Ms Silk’s employees rather he was concerned about employees in general.13

[11] He said he was not aware that Ms Silk shared information about employees with him. 14

[12] Mr Jarvis said that they talked about some voluntary work he was doing and he said Ms Silk asked him if he would like to have coffee one day. He said he subsequently sent her a text message about meeting. 15

[13] Mr Jarvis said it had been his intention to speak to Brendan and so he headed towards him but when Brendan left he thought he would take the opportunity to speak to Ms Silk because he had concerns and that he had “tried to bring up situations before and it seemed like it fell on deaf ears and it never was documented…” 16

[14] Mr Jarvis denied arranging to meet Ms Silk to discuss Croker. 17

[15] Mr Brendan Hurrell, the Construction Manager for Croker, was tasked with investigating Mr Jarvis’ conduct. He spoke to Ms Silk and she told him what had occurred. He then telephoned Mr Jarvis and asked him to meet with him and Mr Steve Long, the QA and OHSE Manager. 18

[16] Mr Jarvis was asked to attend a meeting and he was told he could have witness. 19 The allegations were put to Mr Jarvis and he was provided with an opportunity to respond.20 Mr Jarvis had a support person with him.21

[17] At the meeting Mr Hurrell asked Mr Jarvis why he had approached Ms Silk and why he purported to be a person in a position of responsibility. He said Mr Jarvis’ only response was that he had safety obligations. 22 Mr Hurrell considered that Mr Jarvis’ responses were evasive. He decided that Mr Jarvis’ conduct was unacceptable and he advised Mr Jarvis that they were going to terminate his employment.23

[18] He said he had previously told Mr Jarvis that if he had any concerns he should direct them to the relevant persons, i.e. the QA and OHSE Manager or his Supervisor. In cross examination he could not recall when he had this conversation with Mr Jarvis. 24 In re-examination he said he did this when he gave Mr Jarvis his first warning.25

[19] Mr Hurrell said that Mr Jarvis was a difficult employee and he had a history of poor performance. In cross examination, apart from the incident that lead to his first and final warning, Mr Hurrell could not recall any other occasion when he spoke to Mr Jarvis either about his performance or his behaviour. 26 He said Mr Jarvis was given a first and final warning in February 2015 for unacceptable language, harassment and bullying. He said that Mr Jarvis and another employee had a verbal altercation over the public two-way and that it “degenerated into threats of violence against each other.”27 He said he had verbally counselled him in relation to other performance issues.28

[20] Mr Hurrell did not know if Mr Jarvis’ supervisor was on site on the day in question and he was not aware that Mr Jarvis was left in charge. 29 Mr Jarvis’ supervisor was not called to give evidence. Mr Jarvis said if the supervisor left the site it was normally the grader operator who is left in charge.30 Mr Jarvis put to Mr Hurrell that because he took over the work of a previous employee, who had been left in charge, it meant that he took over that incharge role as well.31 Mr Hurrell did not accept this.32 Mr Hurrell said that “supervisory roles are given to the people that are the most competent and of the understanding that we know that they have got the necessary skills to do it.”33 He said he was unaware that Mr Moyse, his supervisor, gave those responsibilities to Mr Jarvis.34

[21] Mr Long gave evidence that in the meeting Mr Jarvis said he approached Ms Silk and spoke to her about safety and the lack of training of her workers mobilising to the site. 35 He said Mr Jarvis did not deny telling Ms Silk he was a supervisor.36 He recalled Mr Jarvis saying he hadn’t done anything wrong and he was not out of line.37

[22] After the termination of his employment, Mr Jarvis contracted the Perron Group. Croker’s were performing work for Perron. He reported his safety concerns to them.

[23] Mr Jarvis submitted that Croker’s witnesses conspired when preparing their evidence. 38 He said that this was evidenced by the common mistake in the statements which referred to 1 September 2016 instead of 2 September 2016. He submitted that he was never given an opportunity to remedy any concerns Croker had. He said he was hard working and went out of his way to remedy errors made by other workers included Ms Silk’s employees.39 He submitted that there was not a proper investigation into the allegations.40 He said he was not given a proper opportunity to respond as Mr Long and Mr Hurrell kept talking over him.41

[24] He said he had been plotted against because he had a health and safety background and because he exposed something and they did not want him around. 42

[25] Mr Jarvis said he was passionate about his work and about health and safety and training people. He denied saying he was a supervisor though he assumed the role when his supervisor left the site. 43

[26] Mr Jarvis submitted that the dismissal was harsh and unjust. 44 He denied ever undermining the company.45

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 Fair Work Commission must take into account the following:

Whether there was a valid reason for the dismissal related to Mr Jarvis’ capacity or conduct (including its effect on the safety and welfare of other employees): s387(a)

[28] Mr Jarvis was dismissed for his conduct in representing to Ms Silk that he was a supervisor. As a result of that misrepresentation he became privy to information that would not be provided to an employee. Mr Jarvis denies the misrepresentation but accepts that he discussed with Ms Silk his concerns about health and safety and the competency of some of the employees on site though he denied specifically discussing Ms Silk’s employees.

[29] I prefer the evidence of Ms Silk about what was said to her. I accept that Mr Jarvis went out of his way to engage with her. I accept that she only engaged in the conversation with Mr Jarvis because he represented to her that he was a supervisor. Even accepting Mr Jarvis’ evidence that he was put in charge when his supervisor was absent, this did not entitle him to have a broader discussion with Ms Silk about safety on site and other employees on site. If he had concerns about these matters he should have raised them with his supervisor. I also prefer Ms Silk’s evidence that Mr Jarvis sought to meet with her outside of the workplace to continue the discussion. No text message from Ms Silk to Mr Jarvis was tendered. I accept her evidence that she did not send Mr Jarvis a text message. Her evidence is consistent with what she told Mr Croker immediately after the incident and is consistent with what she told Mr Hurrell. It was only after she rang to express her surprise at not being introduced to Mr Jarvis, as the new supervisor, was she told he was not a supervisor. There was nothing confected about Ms Silk’s evidence.

[30] I accept that Mr Jarvis spoke to Ms Silk because of his concerns about health and safety. I accept that there was nothing malicious in his conduct.

[31] I am therefore satisfied that Mr Jarvis represented to Ms Silk that he was a supervisor.

[32] However that the conduct occurred does not mean that there was a valid reason for the termination of employment. Croker submitted that Mr Jarvis “blatantly and deliberately attempted to gather information from a third party about the company in a corrupt and dishonest manner. The applicant wilfully represented himself by posing as a supervisor and purported to be a person in authority so that a third party, who was an external supplier of the respondent would meet him.” 46

[33] It was submitted that the evidence showed that Mr Jarvis was “a difficult and disgruntled employee with an irrational grudge against his employer, an obsessive, obstructive and often provocative approach to safety and an employee who wilfully and deliberately attempted to procure confidential information from a third party, to which he was not entitled to, in a corrupt and deceptive manner.” 47

[34] It further submitted that Mr Jarvis had “taken an avid, bordering on obsessive and disruptive, interest in the safety function of the company to the detriment of the role he was appointed to carry out and its responsibilities.” 48

[35] It was however submitted that Mr Jarvis was not terminated because of his obsessive and provocative approach to safety.” 49

[36] These submissions were not supported by evidence. There was no basis on which Croker could submit that Mr Jarvis made the misrepresentation to Ms Silk for corrupt reasons. There was no suggestion that he intended using the information for any illegitimate purpose. There was no suggestion that he made the misrepresentation for personal gain. Further there was no evidentiary basis for the submission at paragraph [33] above. There is no evidence that Mr Jarvis specifically asked Ms Silk questions aimed at eliciting confidential information. Ms Silk did not give evidence that Mr Jarvis pursued specific information. That she may have volunteered confidential information because she thought he was a supervisor does not mean that Mr Jarvis sought that information.

[37] Mr Hurrell’s evidence that Mr Jarvis was a difficult employee with a history of poor performance was not maintained in cross examination. Mr Hurrell had issued Mr Jarvis with one warning about his altercation with another employee. There was no evidence that Mr Jarvis had ever been told that his safety concerns were interfering with his work. Nor was there any evidence that he had been spoken to about poor performance. While Mr Long gave evidence that Mr Jarvis would speak with him more than any other employee about safety matters, 50 his evidence did not support the submission made.

[38] There was no evidence that Mr Jarvis had a grudge against Croker’s and this was not put to him in cross examination.

[39] I accept that it was inappropriate for him to approach Ms Silk, who was a client of his employer, to discuss his concerns. Mr Jarvis, in his outline of argument, relied upon what he said was a failure of Croker to follow up on health and safety matters. He said “I made a decision to talk to Tina after considering my obligations to OH&S and Duty of Care. I just wanted to act with integrity and help improve the work environment for my fellow employees as per the Company Code of Conduct. My attempts to discuss these issues with management seemed to be ignored.” 51

[40] If Mr Jarvis was dissatisfied with how health and safety was being dealt with on site he should have raised it with more senior managers. If that was unsuccessful he could have raised it with the Work Safe WA. Mr Croker said he was experienced in OH&S issues and he should have been aware of the appropriate steps to take to resolve such issues.

[41] However he made a deliberate decision to bypass these processes and go directly to Ms Silk and raise his concerns with her.

[42] However, I am not satisfied that Mr Jarvis’ conduct warranted his dismissal. I accept his sworn evidence that he was put in charge when his supervisor left site. I accept that this did not make him a supervisor and did not entitle him to represent to Ms Silk that he was a supervisor. However, I am not satisfied he did this for personal gain with any intention to harm Croker. He acted out of his misguided belief about his responsibilities when left without supervision on site. I am satisfied that his conduct warranted a warning. I am not satisfied that making that representation was sufficient to justify his dismissal. I am therefore not satisfied that there was a valid reason for his dismissal.

[43] Whether Mr Jarvis was notified of that reason: s387(b)

[44] I am satisfied that Mr Jarvis was told of the allegations before any decision to terminate his employment was made.

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

[45] I am satisfied that the Mr Jarvis was given an opportunity to respond before the decision was made.

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

[46] Mr Jarvis was permitted a support person.

If the dismissal related to unsatisfactory performance—whether Mr Jarvis had been warned about that unsatisfactory performance before the dismissal: s387(e)

[47] The dismissal did not relate to Mr Jarvis’ unsatisfactory performance.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal: s387(f)

[48] This is not a small business. There were no submissions made that the size of the business had any impact on the procedures followed.

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: s387(g)

[49] There was no evidence about whether Croker had human resource management specialists or expertise. However given I have not found that there was anything wrong with the procedures followed this is not a relevant matter.

Any other matters that the Commission considers relevant: s387(h)

[50] Mr Jarvis was not a long standing employee having only worked for Croker for about 18 months. Mr Jarvis made submissions about the impact of his dismissal on him. He said he had moved closer to the job and he was about to lose his home because of the dismissal. He said he was suffering from depression and anxiety as a result of what happened. He said he could no longer work in the construction industry.

[51] Mr Jarvis had a previous warning which he did not accept. However, that warning was about unrelated conduct. Mr Jarvis was terminated without notice. However, as a casual employee, he was not entitled to notice. However he was a regular and systematic casual employee and, but for this incident, he would have remained working for Croker.

Conclusion

[52] As there was no valid reason for the termination of his employment, I find that the dismissal was unfair. I further find that terminating Mr Jarvis’ employment was harsh because he was terminated summarily and even if his conduct had been sufficient to justify dismissal, it was not of such a character as to warrant summary dismissal.

Remedy

[53] Mr Jarvis is not seeking reinstatement of his employment.

[54] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

The effect of the order on the viability of the employer’s enterprise: s.392(2)(a)

[55] There was no submission that any order would impact on the viability of Croker.

The length of Mr Jarvis’ service with the employer: s.392(2)(b)

[56] Mr Jarvis was employed for 18 months. This is a relatively short period of time and does not warrant any adjustment to the amount of compensation ordered.

The remuneration that Mr Jarvis would have received, or would have been likely to receive, if the person had not been dismissed: s.392(2)(c)

[57] I do not consider that Mr Jarvis would have remained in employment for any length of time. He had already received a warning for inappropriate behaviour. But for his dismissal, he would have received a further warning. While Mr Jarvis viewed himself as a dedicated employee it is clear from the submission put, Croker did not. Mr Jarvis did not display any insight into the concerns Croker had about his behaviour. I therefore do not consider he would have lasted much longer than two months in employment. Mr Jarvis was paid $37.50 per hour for a 38 hour week.

The efforts of Mr Jarvis’ (if any) to mitigate the loss suffered because of the dismissal: s.392(2)(d)

[58] Mr Jarvis said he had been unable to gain other employment.

The amount of any remuneration earned by Mr Jarvis from employment or other work during the period between the dismissal and the making of the order for compensation: s.392(2)(e)

[59] Given my decision it is not necessary for me to have regard to this criterion.

The amount of any income reasonably likely to be so earned by Mr Jarvis during the period between the making of the order for compensation and the actual compensation: s.392(2)(f)

[60] Given my decision it is not necessary for me to have regard to this criterion.

Any other matter that the Commission considers relevant: s.392(2)(g)

[61] No submissions were made that there were any other relevant considerations.

[62] S.392(3) of the Act requires me to make a deduction from the amount of compensation if I am satisfied that Mr Jarvis’ misconduct contributed to the decision to dismiss him. In this case, I am satisfied that Mr Jarvis’ misconduct did contribute to the decision. I will reduce the amount of compensation payable to him by 20%.

Conclusion

[63] Having found that Mr Jarvis was unfairly dismissed, I will order that Croker pay Mr Jarvis $9,120.00 and an additional $866.40 to his superannuation fund within 14 days of the date of this dismissal.

DEPUTY PRESIDENT

Appearances:

Mr T Jarvis representing himself.

Ms J Beeson, representative of the Respondent.

Hearing details:

2016.

Melbourne (by video conference to Perth);

January 21 and March 10.

 1 Exhibit R5 at [4].

 2   Ibid at [4]-[12].

 3   Exhibit R1.

 4   Transcript of Hearing at PN 621.

 5   Exhibit R5 at [14]-[19].

 6   Exhibit A1.

 7   Transcript of Hearing at PN 49-50.

 8   Ibid at PN 51.

 9   Ibid at PN 52-53.

 10   Ibid at PN 90.

 11   Ibid at PN 54.

 12   Ibid at PN 55.

 13   Ibid at PN 61-64.

 14   Ibid at PN 65 and 67.

 15   Ibid at PN 69.

 16   Ibid at PN 70.

 17   Ibid at PN 85.

 18   Exhibit R3 at [23]-[24].

 19   Ibid at PN 106.

 20   Ibid at PN 108-109.

 21   Ibid at PN 114.

 22   Ibid at [26]-[28].

 23   Ibid at [32]-[36].

 24   Transcript of Hearing at PN 316-326.

 25   Ibid at PN 411-412.

 26   Ibid PN 366.

 27   Transcript of Hearing at PN 234.

 28   Exhibit R3 at [41]-[42].

 29   Ibid at PN 280.

 30   Ibid at PN 283.

 31   Ibid at PN 300.

 32   Ibid.

 33   Ibid at PN 304.

 34   Ibid at PN 306-308.

 35   Ibid at PN 517.

 36   Ibid at PN 525.

 37   Ibid at PN 533.

 38   Ibid at PN 676.

 39   Ibid at PN676-677.

 40   Ibid at PN 679.

 41   Ibid at PN 681.

 42   Ibid at PN 684.

 43   Ibid at PN 684-686.

 44   Ibid at PN 688.

 45   Ibid at PN 689.

 46   Ibid at PN 155.

 47   Ibid at PN 166.

 48   Ibid at PN 167.

 49   Ibid at PN 171.

 50   Ibid at PN 442 and 451.

 51   Applicant’s outline of argument.

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