William Treffry v SThree Australia Pty Ltd

[2013] FWC 3697

[2013] FWC 3697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Treffry
v
SThree Australia Pty Ltd
(U2013/7248)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT SYDNEY, 11 JUNE 2013

Application for relief from unfair dismissal.

[1] This is an application by Mr William Treffry (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal. The application relates to the termination of the Applicant’s employment by his employer, SThree Australia Pty Ltd (the Company).

[2] The application was filed with the Fair Work Commission (the Commission) on 5 March 2013. On 27 March 2013 the parties participated in a conciliation conference. The matter was not able to be resolved through conciliation and was referred to me for arbitration.

[3] In accordance with directions issued by the Commission the Applicant and the Company filed written outlines of their submissions together with witness statements.

[4] The Applicant provided a witness statement dated 29 April 2013 which annexed the following documents:

• a copy of a series of emails between the Applicant and the Company in February 2013;



• a copy of the Notification of Suspension letter dated 22 February 2013;



• a copy of the letter requesting that the Applicant attend a disciplinary meeting dated 22 February 2013;



• a copy of the Letter of Termination to the Applicant dated 27 February 2013;



• a copy of the Applicant’s contract of employment; and



• a copy of the Employer’s Response to the Application for Unfair Dismissal.

[5] The Company filed witness statements by Stuart Foster, Senior Business Manager of the Company and Neil Willis-Stovold, Country Manager Australia of the Company. The Company’s witness statements annexed the following documents:

• a copy of a coaching letter issued to the Applicant by the Company dated 29 June 2012;



• a copy of a series of emails in relation to the Applicant’s personal leave request dated 5 July 2012;



• a copy of the SThree Leave Policy dated February 2013;



• a copy of the Notification of Suspension letter to the Applicant dated 22 February 2013;



• a copy of the letter requesting the Applicant attend a disciplinary meeting dated 22 February 2013;



• a copy of the minutes of the disciplinary hearing dated 25 February 2013;



• a copy of the Letter of Termination dated 27 February 2013;



• a copy of the results of a Seek.com search for recruitment job vacancies dated 17 May 2013;



• a copy of the Applicant’s contract of employment; and



• a copy of emails between the Company’s HR business partner and Neil Willis-Stovold.

[6] In the proceedings before me on 6 June 2013 the Applicant was self-represented and the Company was represented by Mr Michael Seck of Counsel. The Applicant did not object to the representation of the Company by counsel and pursuant to s.596 of the Act I granted permission for the Company to be so represented.

[7] Evidence was given in the proceedings by the Applicant and by Stuart Foster and Neil Willis-Stovold as witnesses for the Company.

[8] Following the hearing of the evidence, the parties were given an opportunity to present further submissions directed at whether the dismissal was harsh, unjust or unreasonable and the appropriate remedy to be ordered in the event that the Commission determined that the dismissal was unfair in accordance with s.385 of the Act.

[9] Section 387 sets out the factors which the Commission must take into account when considering whether a dismissal was harsh, unjust or unreasonable. The section provides:

    “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.”

[10] At the conclusion of the hearing of the evidence and submissions I indicated that this was a straightforward case and that I was able to give my decision then. The following decision, now edited, was given in transcript:

“This is an application by Mr William Treffry, the Applicant, against Sthree Australia Pty Ltd, the Company, pursuant to section 394 of the Fair Work Act for a remedy for unfair dismissal. The Applicant was employed by the Company as a recruitment consultant from 14 November 2011 until his employment was terminated on 27 February 2013.

There is little dispute about the facts of this matter.

The Applicant was granted a period of annual leave from 21 January to 12 February 2013, during which he travelled to China.

During the period of leave, the Applicant contacted the Company to advise that he had been hiking and had fallen off a bridge into a river, and that his passport and China visa had been damaged such that he would not be able to return to work as planned. He indicated that he expected to be able to return to work about 21 February.

There were a series of email exchanges between the Applicant and the Company in which the Company asked for evidence about the story, which the Applicant indicated he would provide. Later, the Applicant indicated that he would be able to answer questions about the matter when he returned to Australia and to work on 22 February.

The Applicant attended for work about 10.30 am on 22 February, the usual starting time being 9 am, and had a meeting with Company officers. The Company officers advised, following this meeting, that there would be a disciplinary meeting held on 25 February and that the Applicant was suspended on pay until that meeting. At the meeting on 25 February, the Applicant maintained his story about the reasons for him not being able to leave China earlier and to return to work as planned after his period of annual leave. The Applicant refused to provide evidence regarding the damaged passport and visa.

On 27 February, the Applicant was dismissed by the Company for serious misconduct. The reasons given for the dismissal are set out in the letter of that date, which was given to him. These related to the failure to provide evidence as requested by the Company regarding the damaged passport; failure to provide a satisfactory explanation for the failure to provide the requested evidence; failure to keep the Company apprised of his absence and the expected return date; and failure to give a satisfactory explanation for the failure to attend work or for his late arrival on 22 February.

Following the termination, the Applicant made an application for an unfair dismissal remedy. In the application made and the evidence given in the Commission today, the applicant has admitted that he lied about the reasons given for taking the additional leave. However, he submitted that there were sound reasons why he lied about his reasons and why he made up the story about losing his passport. He also considered that his lies were benign lies and did not result in any serious detriment to the Company, and did not justify dismissal for serious misconduct.

In relation to the evidence before the Commission, I note in particular the evidence was to the effect that the Applicant had booked his air ticket for a period longer than the three-week period of annual leave which he was going to seek from the Company. After he had booked the ticket for this period, he applied to the Company for three weeks' leave and was granted that period of leave. When he was in China, he concocted a story about falling off a bridge and damaging his passport and visa, and conveyed that story to the Company as a reason for his inability to return to work on the designated date at the end of the period of annual leave that he had been granted.

When he was asked for evidence, he said he would provide the evidence. However he never did provide the evidence. When he was challenged in two meetings with Company officers after his return to Australia and to work, he maintained the falsehoods even up to and including at the pre-arranged disciplinary meeting.

In all these circumstances, I have to consider the statutory criteria for determining whether the dismissal of the Applicant was harsh, unjust or unreasonable (see s.387).

It would seem to me that there was a valid reason for the termination of the Applicant's employment. The uncontested evidence before the Commission relates to the Applicant's lies and falsehoods which were given to the Company in relation to the reasons that he was not able to return to work on the scheduled date. The reasons which were given by the Company for the termination of the Applicant’s employment have been established on the evidence before me. Those reasons are compounded by the additional material which is now before the Commission, namely the information in the unfair dismissal application and which has been provided in the Applicant’s submissions and evidence. There is evidence of dishonesty which was premeditated, preconceived, and which was perpetuated, even after it had been challenged by the Company and the Applicant was warned about possible disciplinary action. In all these circumstances, it would seem to me that there was clearly a valid reason for the termination of the Applicant's employment.

In relation to the other statutory criteria, I am satisfied that the criterion in subsection 387(b) is satisfied, in that the Applicant was notified of the reason for the potential termination both in the meeting of 22 February and in the emails which were sent to him when he was in China. The Applicant was also notified of the reason for dismissal in the termination letter.

In relation to subsection 387(c), the Applicant was clearly given an opportunity to respond to the reasons which related to his conduct and the refusal to provide evidence, et cetera. In relation to subsection 387(d), I am satisfied that he was aware that he could have had a support person present at the disciplinary meeting, but he did not or was not able to arrange to have such a person present.

In relation to subsection 387(e), the dismissal was not on the basis of unsatisfactory performance, so that is not relevant. In relation to subsection (f), I am not persuaded that that is a factor which needs to be taken into account in these circumstances. There is no question that the employer's enterprise was of a size as to likely impact on any improper or other procedures which were followed in effecting the dismissal. In relation to subsection (g), I would make a similar comment.

Subsection 387(h) requires that other matters be considered. In regard to these other matters, I have had regard to a number of issues. One is the relatively short period of employment of the Applicant, being about one year and three months. Second, the fact that the conduct of the Applicant was clearly dishonest and that it was such as would have the potential to undermine the trust and confidence which is necessary in the employment relationship.

Thirdly, the contract of employment of the Applicant with the Company provides that dishonesty would warrant dismissal without notice and the contract of employment clearly states that annual leave will be taken as agreed between the employer and the employee. Fourthly, I am not persuaded or convinced that there was a justification for the lies which the Applicant made in relation to his reasons for making up the story which would enable him to stay for a longer period in China. I am also not satisfied that the lies were benign, in that they did not result in losses to the Company.

In this case, the Company characterised the termination as being one for serious misconduct. I have some reservations as to whether the termination might be correctly characterised as being one for serious misconduct, but I note that it is not necessary that the dismissal be such as at common law would justify summary dismissal before it might be held not to be an unfair dismissal for the purposes of the legislation: see Annetta v Ansett Australia Ltd (2000) 98 IR 233 at 235 paragraphs [9] and [10]. In any event, I am not satisfied that the characterisation of the termination as being for serious misconduct would be such as to outweigh all the other considerations which have led to the conclusion that the termination of the Applicant's employment was not harsh, unjust or unreasonable.

This is a case where the Company had grave and justifiable concerns in relation to the Applicant's honesty and integrity. That is a matter which goes directly to the employment relationship and the need for people to be honest in relation to the issues pertaining to that relationship. The dishonesty in this case might be regarded as foolish, but it was something more than that. It was planned, premeditated and persisted with and it was further compounded by the later conduct and the failure of the Applicant to tell the Company the true position in the two meetings of 22 and 25 February.

For all those reasons, I have decided that the dismissal could not be determined to be harsh, unjust or unreasonable. Therefore I have decided to dismiss the application.”

[11] As set out above, on an overall assessment of the evidence and material before the Commission in this matter, and taking into account the relevant statutory criteria, I reached the conclusion that the dismissal was not harsh, unjust or unreasonable.

[12] Accordingly, the application for an unfair dismissal remedy is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr W Treffry as a self-represented Applicant.

Mr M Seck of counsel for SThree Australia Pty Ltd.

Hearing details:

2012.

Sydney.

6 June.

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