Weldemichael v Carbridge Pty Ltd
[2016] FWC 164
•10 March 2016
[2016] FWC 164
DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| Asmerom Weldemichael | |
| v | |
| Carbridge Pty Ltd T/A Easy Cart Australia | |
| (U2015/11271) | |
| COMMISSIONER ROBERTS | SYDNEY, 10 MARCH 2016 |
Application for relief from unfair dismissal – alleged misconduct – procedural fairness.
[1] This decision concerns an application lodged on 24 August 2015 by Mr Weldemichael
pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair
termination of his employment by Carbridge Pty Ltd T/A Easy Cart Australia (Carbridge or
the Company). The matter was the subject of unsuccessful conciliation by a Fair Work
Commission (the Commission) Conciliator on 23 September 2015. It was then set down for
arbitration hearing in Sydney on 4 December 2015. Directions were issued for the filing of
written submissions, witness statements and any supporting documents. The Transport
Workers’ Union of Australia (the TWU) filed an outline of submissions and witness
statements on behalf of the Applicant on 19 October 2015. The Company wrote to the
Commission on 20 October advising that it would not file any documents and would rely on
its response filed earlier (Form F3 Employer's Response to Unfair Dismissal Application).
[2] At the hearing on 4 December 2015, Mr Weldemichael was represented by Mr A Guy
of the TWU and Carbridge was represented by Mr L Todd (CEO). Mr Weldmichael and Mr I
Sherwood gave sworn evidence for the Applicant. Ms N Haddad gave sworn evidence for
Carbridge.
Background
[3] Mr Weldemichael commenced employment with Carbridge on 1 March 2011. He
worked at Sydney Airport (the Airport) and his duties included collecting and returning
luggage trolleys used by travellers. His employment was terminated on 3 August 2015,
following an incident on 29 July 2015 involving alleged misconduct in a conversation with
Ms Haddad. Mr Weldemichael denies that there was a valid reason for the termination of his
employment on the ground of misconduct or performance and seeks reinstatement and lost
remuneration.
Evidence
Mr Weldemichael
[2016] FWC 164
1
| [4] | Mr Weldemichael gave sworn evidence and adopted a witness statement | . In his |
statement, Mr Weldemichael provided details of his background. He arrived in Australia in
1995. From 1999, and prior to his employment with Carbridge from 1 March 2011, he worked
for the two predecessors of Carbridge and performed the same duties. He was engaged as a
full time employee.
[5] Mr Weldemichael stated that, prior to his engagement with Carbridge, he did not have
any issues in relation to his performance or conduct in the workplace. Attached to Mr
Weldemichael’s statement was a letter from Smartcarte’s Location Manager, Sydney, Mr A
Mir, dated 6 October 2015 in the following terms:
“Asmerom M. Weldemichael was employed by this company from July 2005 to
February 2011 as a customer service Representative (Trolley) at Sydney International
Terminal.
We have found Asmerom to be a very reliable employee who was extremely punctual
and had a good attendance record. He performed any task put to him with willingness
and was always co-operative.
Asmerom was a conscientious, trustworthy and a well regarded member of our staff. I
2
would not hesitate to recommend him to any prospective employer.”
[6] Mr Weldemichael’s statement went on to set out his response to the allegations
made/issues raised by Carbridge against him, details of various meetings and the events of
29 July 2015 leading to his termination.
[7] Mr Weldemichael said that he had not received a formal termination letter from
Carbridge despite making requests. “I also requested of Ms Haddad a copy of my separation
certificate but it was not provided. Eventually a copy was provided to me by Centrelink after
they made enquiries with Ms Haddad.”
[8] Mr Weldemichael further stated that he had applied for a number of jobs since his
dismissal but was not able to obtain alternative work. “I am the only member of my family
who works and my wife, children and parents were dependent on my income to support them.
I am currently not eligible to access social security benefits and I am reliant on my
termination payment to support my family.”
[9] In cross-examination, Mr Weldemichael:
Said that he did not attempt to find work with his former employer, Smarte Carte,
3
after his dismissal.
4
Denied that he refused the order of a manager to remove his reflective vest.
Denied that he refused to hand back the ASIC (security card) when asked by the
5
manager.
Denied that he refused to return home to get his ‘Bundy log-in” as requested by his
6
manager and became aggressive.
7
Denied that he became aggressive towards the payroll manager in October 2012.
Denied that he became aggressive towards a shift manager in February 2014 when
8
being asked to return home to collect his ID card.
[2016] FWC 164
Was asked: “did you continually refuse to sign warnings as they were issued to
you?” and said: “Yes, I refused because when they she give me warning letter I
don’t know what she writing on it, only she asking me to sign it. And that’s why
9
the reason I don’t sign it.”
Mr Sherwood
10
| [10] | Mr Sherwood gave sworn evidence and adopted a witness statement | . Mr Sherwood |
is an Official of the TWU and has held his position since December 2010. Prior to this he was
a transport worker at Qantas Catering for 23 years. As a TWU Official it is part of his duties
to provide assistance to union members, including employees engaged by Carbridge.
[11] In relation to a meeting on 22 April 2014 with Mr Weldemichael, Ms Haddad and Mr
Higgins (a manager), Mr Sherwood said:
The meeting with Carbridge’s management was requested by him after being
advised by Mr Weldemichael that he had been disciplined in relation to an incident
at work.
The purpose of the meeting was to discuss the issue that Mr Weldemichael had
been warned about. “Essentially the point of the meeting was to get to the bottom
of why Mr Weldemichael had been warned 8 times in the last year or so.”
The meeting was held at a coffee shop at the airport and was rather informal.
He was told by Ms Haddad at the meeting that Mr Weldemichael was a difficult
employee in the workplace and that he had to be moved from the am shift to the pm
shift due to personality clashes.
“Ultimately I recall that the meeting concluded with us essentially drawing a line in
the sand and it appeared that the parties would work toward a better working
relationship in the future.”
Ms Haddad emailed him twice after the meeting and asked that he sign a document
detailing the meeting between the parties and agreeing to her minutes. “I found this
odd considering the conversational tone of the meeting because I had never
previously been asked to sign minutes of a meeting and in my experience, this
would only be required for a more serious disciplinary meeting.”
[12] In relation to the meeting of 3 August 2015 with Mr Weldemichael, Ms Haddad and
Mr Hensley (a manager), which led to Mr Weldemichael’s dismissal, Mr Sherwood said:
He was called to the meeting to “discuss a disagreement that Mr Weldemichael had
with Ms Haddad a few weeks earlier.”
At the meeting, Ms Haddad mentioned the issues that she had with Mr
Weldemichael over the last two years.
“Mr Weldemichael put his position to [Ms Haddad] that he had issues with
obtaining a new jacket and that there wasn’t any of the type that he required.”
“Ms Haddad put to Mr Weldemichael that she was embarrassed and annoyed at his
attitude towards her in the presence of a lawyer and manager. She also made
mention that she feared for her personal safety.”
After a private discussion of some ten minutes between Ms Haddad and Mr
Hensley, Mr Weldemichael was advised by Mr Hensley that his employment with
Carbridge was terminated.
[2016] FWC 164
Mr Weldemichael initially refused Mr Hensley’s request to return the ASIC but
later handed it back after he explained to him that the ASIC belonged to the
Company and needed to be returned.
“It was clear to me that throughout the procedure, that Mr Weldemichael had
difficulty with both spoken and written English and that this impeded his
understanding of the dismissal process.”
[13] In cross-examination, Mr Sherwood was asked if he was aware that Mr Weldemichael
was given a final warning at the meeting of 22 April 2014 and said: “I have no recollection of
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Mr Weldemichael being given a final warning at that meeting.”
Ms Haddad
[14] Ms Haddad was called to give evidence for Carbridge. The TWU objected on the
ground that Ms Haddad had not filed a witness statement. I agreed to Ms Haddad giving
evidence.
[15] In her evidence, Ms Haddad:
Said that she felt threatened by Mr Weldemichael’s behaviour and that every time
she had to ‘performance manage’ him “the response was always in an aggressive
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and intimidating manner”.
Said that other managers had also felt “uncomfortable” and “quite threatened” by
13
Mr Weldemichael.
Said that Mr Weldemichael was given a final warning in April 2014 “and we gave
him another two opportunities and then I was at a point where I couldn’t manage
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Asmerom anymore.”
[16] In cross-examination, Ms Haddad:
Maintained that Mr Weldemichael was issued with a final warning in April 2014
and that this information had been supplied to Mr Sherwood.
Agreed that no letter containing a final warning was sent to Mr Weldemichael.
15
However, “there is a written notification in his file”.
Agreed that no documentation has been supplied to the Commission concerning
alleged training undertaken by Mr Weldemichael in relation to the reporting of
16
incidents.
[17] In re-examination, Ms Haddad was asked: “as part of our contract with Sydney
Airport, are we required to train every employee in that fashion and record that we have
training documentation on hand if they require it to conform with our contract?” and said:
17
“Yes, because we get audited by the Airport.”
Submissions
18
[18] On behalf of Mr Weldemichael, the TWU filed a written outline of submissions.
[19] Those submissions deal with a number of incidents involving Mr Weldemichael
between February 2012 and July 2015. I have paid regard to the submissions concerning all
[2016] FWC 164
the incidents involving Mr Weldemichael, particularly that of 29 July 2015 which was the
proximate cause of the Company’s decision to terminate his employment.
[20] On 29 July 2015, the TWU submits, Ms Haddad approached Mr Weldemichael and
told him that his work jacket was not in an acceptable condition and that she would arrange
for him to be given a new one. Mr Weldemichael declined to hand over his jacket because a
new one was not yet available. Some discussions followed between Ms Haddad and Mr
Weldemichael and “eventually Mr Weldemichael provided his jacket to his supervisor and
continued his shift without incident.”
[21] Mr Weldemichael was then called to a meeting with Ms Haddad and Mr Hensley on
3 August 2015. Mr Sherwood attended in support of the Applicant.
[22] “The meeting was primarily about the conversation between Ms Haddad and Mr
Weldemichael on 29 July 2015. Ms Haddad claimed that Mr Weldemichael had been
speaking rudely to her about the replacement of his jacket.”
[23] “Mr Weldemichael said that he was embarrassed by Ms Haddad’s approach,
particularly in the presence of [another employee] and that he was on his lunch break when
the comments were made.”
[24] “Mr Weldemichael also made mention that he believed that Ms Haddad had breached
the Respondent’s code of conduct by claiming that he was dirty and unpresentable. Ms
Haddad responded by saying that it was Mr Weldemichael’s jacket that was dirty and
unpresentable, and not him.”
[25] “Ms Haddad then deferred to Mr Hensley to make a decision on Mr Weldemichael’s
engagement with the Respondent. After considering the matter Mr Hensley advised Mr
Weldemichael that his engagement with the Respondent would be terminated with immediate
effect.”
[26] “After his termination, Mr Weldemichael was asked for his ASIC ID which he initially
refused as he had been told to provide it to airport security if he was to surrender it.
Ultimately, after some discussion with Mr Sherwood, Mr Weldemichael surrendered his
ASIC to the Respondent.”
[27] The TWU argues that no termination of employment letter was ever provided to Mr
Weldemichael and therefore “it is not entirely clear what exactly he was terminated for”. It
appears that Mr Weldemichael was dismissed for allegedly being rude and aggressive to Ms
Haddad on 29 July 2015 and for having a history of aggressive and intimidating behaviour to
fellow employees and Company managers. The TWU submits that none of the incidents when
considered separately or in combination, could be considered sufficient to give rise to the
termination of his employment with the Company. If the Commission does not find that Mr
Weldemichael was aggressive and intimidating in the manner alleged by the Company then
his dismissal could not be considered as well-founded or defensible.
[28] “In the present matter, Mr Weldemichael was simply told to attend a meeting on 29
July 2015. He was simply told by his manager that he (the manager) thought it was about the
incident on 29 July 2015.”
[2016] FWC 164
[29] “Further, it appears that during the course of the meeting, issues relating to Mr
Weldemichael’s conduct from 2012 up to July 2015 were raised and considered by the
Respondent as reasons for Mr Weldemichael’s dismissal.”
[30] “In addition to this, it also appears that after having a short discussion about these
matters in an informal manner during the meeting on 3 August 2015, the decision to terminate
Mr Weldemichael was made by Mr Hensley.”
[31] The TWU goes on to argue that Mr Weldemichael was not given a proper opportunity
to respond to the allegation(s) against him and “that the approach taken by the Respondent did
not adequately or precisely put their concerns to him, nor did such an approach give him a full
opportunity to respond to their concerns.”
[32] It is argued that Mr Weldemichael had no performance or conduct issues until Ms
Haddad began working for Carbridge. The submissions characterised Mr Weldemichael’s
work history as “rather long and uneventful” prior to Ms Haddad’s arrival at Carbridge.
[33] The submissions close by arguing that Mr Weldemichael’s “current family, and
economic situation should be taken by the Commission as a factor that significantly
exacerbates the harshness of is dismissal.”
Carbridge
[34] As noted earlier in this decision, Carbridge did not file written submissions. Instead,
the Company relied on material filed with its form F3.
[35] In its form F3, Carbridge (at 3.1) stated that the reasons for the dismissal were as
| follows: |
“On the 29 July 2015, Noelle Haddad was conducting a site visit with our Company
Lawyer, during the site visit Noelle Haddad saw Asmerom and [an employee] in the
meal room, Noelle commending [an employee] on getting a new uniform as his
uniform looked washed out the previous week. Noelle noticed that Asmerom’s vest did
not present well and requested for Aserom to see [another employee] for a replacement
vest. Later in the afternoon whilst Noelle was talking to [another employee] regarding
the poor presentation of Asmerom’s uniform he stormed up to both [another employee]
and Noelle and refused to take off his vest and was yelling his refusal at Management,
in a calm voice Noelle instructed Asmerom to remove his vest and that she would
personally replace his vest. Seeing Asmerom become highly aggressive and having our
Company present Noelle advised [another employee] to assist with a replacement vest
and that she had to go.”
[36] In response to submissions on behalf of Mr Weldemichael, Carbridge said:
“Carbridge’s decision to terminate Asmerom was not taken lightly, Asmerom has displayed
continual harassment, aggressive and intimidating behaviour in the workplace …”
[37] Attached to the form F3 were a number of documents including a “Record of
Communication” dated 29 July 2015 concerning the incident between Mr Weldemichael and
Ms Haddad on that date. The Company’s Record of Communication says:
[2016] FWC 164
“Today whilst out on a tour with our Company Solicitor Noelle Haddad observed
Asmerom’s vest looking very tired and unpresentable. Noelle advised Asmerom that
the vest needs to be replaced as a matter of urgency as it does not present well at all
and does not fall within Company guidelines. Noelle contacted Ross who spoke with
[another employee] about arranging a replacement vest. Whilst Airside Noelle could
see [another employee] speaking with Asmerom about the vest, Asmerom stormed off
walked to the cage area to collect his Tugger and drove out wearing the worn out vest.
Noelle stopped her vehicle and was speaking to [another employee] through the fence
urging [another employee] to take the vest as it looked horrible. Whilst Noelle was
talking to [another employee] Asmerom parked his vehicle and approached with
aggression. Noelle said to Asmerom ‘can you please take off your vest and give it to
[another employee] and I will go and get you a new one.’ He started yelling at me and
saying ‘no I am not taking it off’ and was yelling at Management. Noelle again asked
in a very calm voice please take off your vest and I will give you another one and he
stormed off yelling but Noelle could not hear what he was saying.”
[38] The Record of Communication goes on to say:
“Carbridge has had several discussions with you in regards to intimidation in the work
place. This is the third time that Management has been intimidated and disrespected
with a simple request. Management gave you a clear directive regarding your vest and
your reaction was unacceptable and will not be tolerated, it is unprofessional,
frightening and aggressive as well as defiant.
This is your final warning, if you display intimidation in the workplace to
Management or any employees your employment with Carbridge will cease effective
immediately.”
[39] Another attachment to the form F3 is a further Record of Communication dated
30 July 2015, again concerning the events of 29 July 2015. The document states as follows:
“Received a phone call from a union representative at 1:01pm phone number [xxxx xxx
xxx] regarding Asmerom.
The union representative advised that Asmerom informed him that [another employee]
took his vest away from him and refused to give him warm clothing.
I advised that union representative that this is not the case. I advised that we requested
Asmerom take off his vest as the hi vis tape was torn to shreds and that the uniform
did not present well and that we would replace his vest.
I further advised that Asmerom has a wet weather wind jacket for warmth and that he
refuses to wear that as he does not like it. The vest was an added item of clothing that
came with the jacket that we purchased for the staff.
I also informed the union representative that all other staff wear the jacket and no one
has reported that they do not like it or have an issue with the issued uniforms.
I also informed the union representative that Asmerom refused a clear directive from
management and started yelling at Management and become very aggressive and that
[2016] FWC 164
as a company we would not tolerate this intimidating behaviour that he continues to
display.
The union representative informed me that he would contact Asmerom and advise him
to wear the company issued Jacket that he has been given and that he is to abide by
company policy processes and take clear direction from Management.
I thanked the union representative for listening to our version of the events.”
[40] The next event between Mr Weldemichael and Carbridge was a text message from Mr
Hensley sent to the Applicant on 2 August 2015 at 3:57 pm in the following terms:
“Asmerom, we need to have a meeting on Monday at 12 noon. Please feel free to bring
a support person with you. We will see on Monday 3/8/15. At 12 noon. Thanks James”
[41] A further attachment to the form F3 is entitled “Record of Meeting Notes” recording
the Company’s version of the meeting between Mr Hensley, Ms Haddad, Mr Weldemichael
and Mr Sherwood on 3 August 2015. That document, prepared and signed by Ms Haddad,
contains notes of the meeting. Those notes traversed events prior to 29 July 2015 and contain
the following:
“ The conversation went around in circles and I advised Asmerom that I was not in a
position to make a decision on his future with Carbridge and that it would be up to
James Hensley, Operations Manager to make a decision.
James Hensley having had a look in Asmerom’s file and all the previous events
recorded had decided that Asmerom’s employment with Easy Cart/Carbridge would
be terminated effective immediately.
Asmerom sat in silence for about 1 minute without speaking a word. I then asked
Asmerom did he wish to say something. He did not.”
[42] The Meeting Notes record that Mr Sherwood advised the Company that Mr
Weldemichael would be filing a claim for relief for unfair dismissal.
[43] There were a large number of further documents attached to the form F3 concerning
incidents involving Mr Weldemichael and I have paid regard to that material. In particular, I
have paid close regard to documents concerning an event which allegedly occurred on 5 April
2014. It was that event which the Company relied on as resulting in a final warning to Mr
Weldemichael. One of the relevant attachments is a “Written Notification” dated 11 April
2014. That document, apparently prepared by Ms Haddad, states:
“An incident occurred in which you were approached by a Customs Officer who
questioned both you and a fellow employee about unsafe practices of operations.
Whilst the event was not caused due to unsafe practice, you failed to report the
incident to your Shift Manager on duty as per company policy/procedure.
You are required to sign another copy of the attached Code of Conduct attached hereto
reminding you of the guidelines in relation to reporting of any events or incidents that
occur …
[2016] FWC 164
The Company Policies are put into place to create a safe, friendly and productive work
place for all staff members. You need to ensure that you constantly operate under the
guidelines at all times. You must ensure that ALL events and incidents are reported as
per Company Policy.”
[44] A further document entitled “Record of Meeting / Action Plan” dated 22 April 2014,
again apparently prepared by Ms Haddad, is a Company record of a meeting between Ms
Haddad, Mr Higgins (a manager) and Mr Sherwood held on that day to discuss the events of 5
April 2014 and of the meeting held on 11 April 2014. That document is apparently the one
referred to in Ms Haddad’s evidence as to the existence of a final warning issued to Mr
Weldemichael in April 2014. It is signed by Ms Haddad only.
[45] The 22 April 2014 document states:
“NH [Ms Haddad] inform IS [Mr Sherwood] that our company will not tolerate any
further form of intimidation harassment or bullying by Asmerom and if found
operating outside Company Guidelines he will be instantly dismissed and that this will
be his last official warning.
IS [Mr Sherwood] requested any future meetings with Asmerom he would like to be
invited.”
Oral submissions
[46] Both parties made brief oral submissions at the conclusion of the hearing.
| Mr Guy | |
| [47] | Mr Guy submitted that no weight should be given to the material in the Company’s |
form F3 and the attachments to that form as the Applicant was unable to cross-examine
19
several persons named in those documents, thus creating “a grave unfairness”.
[48] Mr Guy went on to say that Mr Weldedmichael received payment in lieu of notice but,
in the absence of a formal termination letter, it is unclear whether he was dismissed for
misconduct or not. Mr Guy said that there was no valid reason for the dismissal in any event.
[49] Mr Weldemichael denies abusive or intimidating behaviour and was not provided with
an opportunity to respond to the allegation(s) against him.
Mr Todd
[50] Mr Todd said that the Company always did its best to treat its employees well. In Mr
Weldemichael’s case, it was faced with a history of performance and behaviour issues which
ultimately led to his dismissal.
[51] Mr Todd went on to say that Carbridge had made every effort to “rehabilitate Mr
Weldemichael to an employee that is able to continue employment and I think that is justified
by the fact that we moved him from one position to another to enable him continual
improvement at a certain date when we started to realise there was some issues with his
behavioural process. I think in summary, all I can say is we've done our best to do what we
[2016] FWC 164
could to continue Mr Weldemichael's employment but reached the point that we felt we had
no other option other than to let him go and that was what we did and did it to the best of our
20
ability under the Fair Work Act accordingly.”
Conclusions and Findings
[52] Section 385 of the Act provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy. Note: For the definition of consistent with the Small Business Fair
Dismissal Code: see section 388.”
[53] In the case before me, there is no claim that Carbridge is a Small Business nor that the
dismissal of Mr Weldemichael was a case of genuine redundancy.
[54] Mr Weldemichael’s employment was terminated, with payment in lieu of notice, on
3 August 2015 at the initiative of Carbridge. For the termination, Carbridge relied upon Mr
Weldemichael’s alleged misconduct in his dealings with Ms Haddad on 29 July 2015. It did
so in the light of previous alleged transgressions by Mr Weldemichael and, in particular, an
alleged final warning issued to him after an incident in April 2014.
[55] As Mr Weldemichael’s conduct on 29 July 2015 was the proximate reason for the
termination of his employment, I have to determine for myself whether the impugned conduct
occurred, and, if so, its nature and then, depending on the outcome of my determination of the
earlier matters, whether any such conduct amounted to a valid reason for termination of
employment. In this regard I respectfully agree with the following observations of the Full
21
| Bench in King v Freshmore (Vic) Pty Ltd | : |
“When a reason for a termination is based on the conduct of the employee, the
Commission must, if it is an issue in the proceedings challenging the termination,
determine whether the conduct occurred. The obligation to make such a determination
flows from s.170CG(3)(a). The Commission must determine whether the alleged
conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be
determined by the Commission on the basis of the evidence in the proceedings before
it. The test is not whether the employer believed, on reasonable grounds after
sufficient enquiry, that the employee was guilty of the conduct which resulted in
termination.”
22
| [56] | Northrop J in Selvachandran v Peteron Plastics Pty Ltd | said: |
“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
[2016] FWC 164prejudiced 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, ….”
23
| [57] | In Qantas Airways Ltd v Cornwall | , the Full Court of the Federal Court said: |
“The question is whether there was a valid reason. In general, conduct of that kind
would plainly provide a valid reason. However, conduct is not committed in a vacuum,
but in the course of the interaction of persons and circumstances, and the events which
lead up to an action and those which accompany it may qualify or characterize the
nature of the conduct involved.”
24
| [58] | In Edwards v Justice Giudice | , Moore J said: |
“The reason would be valid because the conduct occurred and justified termination.
The reason might not be valid because the conduct did not occur or it did occur but did
not justify termination.”
[59] As noted above, I must determine for myself whether the impugned conduct by Mr
Weldemichael occurred or not, and if it did, its level of seriousness. In deciding Mr
Weldemichael’s application for relief, I have not been assisted by the paucity of evidence
from Carbridge. Carbridge’s sole witness, Ms Haddad, did not provide a witness statement in
advance. Also, Carbridge alleges that a solicitor acting for the Company and another company
manager were present on 29 July 2015 and witnessed events between Mr Weldemichael and
Ms Haddad. The failure to call either person was a serious omission, in that their evidence
would have been most helpful in determining what actually occurred on that date and the
seriousness of it.
[60] The Company submits that I can rely primarily on its form F3 and the attachments to
that form. Mr Guy’s objection to that course is outlined above.
[61] Overall, and on balance, after a thorough review of the information available to me, I
find that Ms Haddad’s evidence is to be preferred over that of Mr Weldemichael as it relates
to her experience and knowledge of his history of poor behaviour in the workplace when
confronted by managers with any situation in which he believed that he was subject to
criticism or was asked to do something which he did not wish to do. This may have been
exacerbated by Mr Weldemichael’s poor command of English and difficult life history.
However, it remains that Mr Weldemichael was a very difficult, argumentative and
confrontational employee to manage.
[62] It is true that the Company’s internal documentation contains a ‘final warning’ issued
in April 2014 but there are serious problems with the Company’s reliance on that warning to
underpin a valid termination of employment in conjunction with the events of 29 July 2015.
[2016] FWC 164
[63] The history of the April 2014 incident and subsequent alleged ‘final warning’ are
somewhat peculiar. As noted above at paragraphs 43 to 45, the result of an initial meeting to
discuss the incident, held on 11 April, did not result in any warning to Mr Weldemichael.
However, a further meeting, requested by Mr Sherwood, held on 22 April resulted in Ms
Haddad’s document dated 22 April 2014 which contained the alleged ‘final warning’. Mr
Weldemichael was supplied with the first document but not the second. It was also Mr
Sherwood’s sworn evidence that he does not recall any such warning. I am therefore satisfied
and find that Mr Weldemichael was unaware of any final warning in April 2014. In those
circumstances, it was unsafe for the Company to rely on it when it came to consider the
events of 29 July 2015.
[64] I now come to the events of 29 July 2015 and subsequently.
[65] As I have noted above, I accept Ms Haddad’s evidence as to the events of 29 July
2015 and am satisfied that Mr Weldemichael misconducted himself on that date. However,
subsequent events are again peculiar.
[66] The incident on 29 July 2015 resulted, initially, in the ‘Record of Communication’
dated 29 July 2015 which is cited at paragraphs 37 and 38 above. That Record of
Communication closes by saying: “This is your final warning, if you display intimidation in
the workplace to Management or any employees your employment with Carbridge will cease
effective immediately.” The TWU then telephoned the Company on 30 July 2015 putting
forward Mr Weldemichael’s version of events. This was followed by a text message to Mr
Weldemichael from Mr Hensley on 2 August 2015 summoning Mr Weldemichael to a
meeting on 3 August 2015. (See paragraph 40 above.)
[67] Mr Weldemichael and Mr Sherwood therefore attended the 3 August meeting in the
context of a final warning having been issued to Mr Weldemichael concerning the events on
29 July 2015 and Mr Sherwood’s telephone call to Ms Haddad of 30 July offering an
explanation of Mr Weldemichael’s actions on 29 July. However, the meeting with Mr
Hensley and Ms Haddad on 3 August 2015 proceeded as a disciplinary meeting in which the
Company considered Mr Weldemichael’s prior history of poor behaviour and re-visited the
events of 29 July 2015. Neither Mr Weldemichael nor Mr Sherwood could have been properly
prepared for such a meeting. Company managers at the meeting put a number of accusations
against Mr Weldemichael then left the meeting, and returned a few minutes later, at which
time Mr Hensley terminated Mr Weldemichael’s employment with immediate effect. As
noted earlier, Mr Weldemichael received payment in lieu of notice. He never received a
formal letter of termination setting out the reason(s) for his dismissal.
[68] My examination of the history of this matter shows that I must accept that Mr
Weldemichael had a lengthy history of conflict in the workplace which culminated in his
misconducting himself on 29 July 2015 towards Ms Haddad. I therefore find that Carbridge
had a valid reason to terminate the employment of Mr Weldemichael but it carried out the
termination process in a procedurally flawed, and ultimately unfair manner.
[69] In reaching my decision as to valid reason, I have been conscious of the decision by
25
| the Full Bench in Spillard v Patrick Stevedores Holdings | . In that decision, the Bench said: |
“… a finder of fact needs to have regard to all of the evidence to ascertain whether inferences
26
can be drawn to lead to a conclusion of probability.”
[2016] FWC 164
Harsh, unjust or unreasonable?
[70] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust
or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It
provides:
“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.” 27
| [71] | In Byrne v Australian Airlines | , McHugh and Gummow JJ of the High Court said: |
“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.”
28
| [72] | In Parmalat Food Products Pty Ltd v Wililo | , the Full Bench held: |
“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
29
conclusion of harshness is open.”
[2016] FWC 164
30
| [73] | In Miller v University of New South Wales | , the Full Bench held: |
“The entire relevant factual matrix must be considered in determining whether an
employee’s termination is for a valid reason: Allied Express Transport Pty Ltd v
Anderson (1998) 81 IR 410 at 413. In Izdes Beazley J said:
‘In determining whether a refusal to carry out the lawful and reasonable directions of
an employer constitutes a valid reason for termination, it is necessary to have regard to
all the circumstances, including the nature and degree of the employee's conduct.’
(61 IR 439 at 451)
In considering the validity of the reason, “it is not the court's function to stand in the
shoes of the employer and determine whether or not the decision made by the
employer was a decision that would be made by the court but rather it is for the court
to assess whether the employer had a valid reason connected with the employee's
capacity or conduct”: see Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR
31
681 at 685.”
[74] The question of valid reason is dealt with above.
[75] I am satisfied from the documentary and other evidence before me that Mr
Weldemichael was notified orally of the reason for the termination of his employment by Mr
Hensley on 3 August 2015 and I so find. However, it is clear, and I find, that Mr
Weldemichael was not given a fair opportunity to respond to the allegations against him
before a decision was made to terminate his employment. There was no refusal by the
employer to allow Mr Weldemichael the presence of a support person to assist at any
discussion relating to the dismissal.
[76] Any allegations relating to Mr Weldemichael’s work performance were inextricably
linked to allegations of misconduct made against him. However, I am satisfied that Mr
Weldemichael was a satisfactory employee of Carbridge in relation to his trolley duties. It was
largely his attitude towards Carbridge’s managers that brought his employment to an end.
[77] The size of the employer enterprise is a factor which is likely to have impacted on the
procedure followed in effecting the Applicant’s dismissal. On what is before me, I conclude
that Carbridge’s operations are of a substantial size but are run as a family company. The
Company appears to have access to outside legal representation and advice but did not use
that representation to effect Mr Weldemichael’s dismissal. Neither Mr Hensley nor Ms
Haddad appear to have possessed the necessary industrial relations skills to effect a
procedurally fair process in the dismissal of Mr Weldemichael and I so find.
[78] I have also taken into consideration the length of Mr Weldemichael’s service, his
difficulties with spoken and written English, his age and the economic and personal effects of
the termination of employment on him.
[79] All in all, it is my finding that the termination of Mr Weldemichael was harsh and
unjust but not unreasonable. If the Company had conducted a procedurally fair process after
the events of 29 July 2015 which resulted in dismissal then I very much doubt that Mr
Weldemichael would have any ground for seeking relief under the Act.
[2016] FWC 164
[80] Section 390 of the Act provides:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394. (3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for
remedies.”
[81] In all the circumstances of this case, reinstatement would in my view be both
impractical and undesirable. I am unable to see how the employment relationship could ever
be restored given Mr Weldemichael’s attitude and past behaviour. I therefore find that
reinstatement is not an appropriate remedy in this case.
[82] Where reinstatement is not ordered, the Commission may order the payment of
monetary compensation. Subsection 392(2) of the Act sets out the criteria for deciding a
suitable level of compensation:
“(a) the effect of the order on the viability of the employer’s enterprise; and (b) the length of the person’s service with the employer; and (c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the
order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that the FWC considers relevant.” [83] In relation to subparagraph (a), nothing has been put to me that any order for
compensation would have any obvious effect on the viability of Carbridge. In relation to
subparagraph (b), I have taken into account the length of Mr Weldemichael’s employment
with the Company. In relation to subparagraph (c), I am satisfied that the Applicant’s
employment prospects with the Company were extremely limited at the time of his dismissal
and that he would not have continued in the employ of Carbridge for any significant period. In
relation to subparagraph (d), I am not satisfied that the Applicant has made serious efforts to
mitigate his loss. I have also paid regard to subparagraphs (e) and (f). In this regard, it appears
[2016] FWC 164
that Mr Weldemichael may have received some social security payments relevant to
subparagraph (f) but these have not been quantified. There is no other matter I consider
relevant pursuant to subparagraph (g).
[84] Sections 392(3) of the Act provides that:
“Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.” [85] In the case before me, I am satisfied that a species of misconduct occurred and this
provision is therefore relevant to my consideration. My assessment of the contribution by the
Applicant towards the Company’s decision to termination his employment can reasonably be
set as 75 per cent. All in all, I find that the termination of Mr Weldemichael’s employment
was procedurally harsh and unjust and an order will be issued that Carbridge pay him a total
of $3581.52 (less appropriate tax according to law), being 4 weeks wages at the rate he was
earning as at the date of the termination of his employment. I have arrived at the figure of
4 weeks wages after applying a 75 per cent discount to the amount of 16 weeks wages which I
would otherwise have awarded had the Applicant’s conduct not contributed to his own
dismissal to such an extent. The sum awarded is to be paid within 14 days of the date of this
decision. The amount awarded does not include any compulsory superannuation contributions
that may be due to Mr Weldemichael.
[86] I wish to make it clear to the parties that my finding as to harshness and unjustness is
solely derived from my assessment of the fundamentally flawed process followed by
Carbridge in effecting the dismissal. Given the facts of this case, had the Company followed a
fair and transparent process, it would have been highly unlikely that any award would have
been made in the Applicant’s favour given my views as to his conduct during the employment
relationship.
[87] In accordance with s.381(2) of the Act, I am further satisfied that each party has been
accorded a ‘fair go all round’ in these proceedings.
[88] An order reflecting this decision is in PR575966.
COMMISSIONER
Appearances:
A Guy for Asmerom Weldemichael.
L Todd for Cabridge Pty Ltd.
[2016] FWC 164
Hearing details:
2015.
Sydney:
December 4.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR575965>
1
Exhibit TWU 2.
2
Attachment AW-02 to Exhibit TWU 2.
3
Transcript PN109.
4
Transcript PNs236 and 238.
5
Transcript PNs241-244.
6
Transcript PN253.
7
Transcript PNs254-259.
8
Transcript PN260.
9
Transcript PN286.
10
Exhibit TWU 3.
11
Transcript PN368.
12
Transcript PNs403-404.
13
Transcript PN405.
14
Transcript PN407.
15
Transcript PN495.
16
Transcript PNs501-505.
17
Transcript PN511.
18
Exhibit TWU 1.
19
Transcript PN536.
20
Transcript PNs657-658.
21
Print S4213, 17 March 2000.
22
(1995) 62 IR 371 at 373.
23
[1998] FCA 865.
24
[1999] FCA 1836.
25
(2010) 193 IR 184.
26
Ibid at para 13. See also Nesterczuk v Mortimore, (1965) 115 CLR 140.
27
(1995) 185 CLR 410.
28 [2011] FWAFB 1166
29
Ibid at para 24.
30
PR910187, 11 October 2011, per Boulton J, Drake SDP and Larkin C.
31
Ibid at para 75.
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