[2010] FWA 4342 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Bradley Donald Davidson
v
Griffiths Muir's Pty Ltd
(U2009/822)
SENIOR DEPUTY PRESIDENT RICHARDS |
BRISBANE, 23 JUNE 2010 |
Summary: unfair dismissal remedy – Applicant found to have been harshly, unjustly or unreasonably terminated – compensation ordered – determination of likely duration of employment ‘speculative’ – s.392(4) mandatory obligation – nominal discount for misconduct at the lower end - support person.
[1] This matter concerns an application made by Mr Bradley Davidson (“the Applicant”) who is seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the FW Act”). The employer, which is responsible for the termination of his employment, is Griffiths Muir’s Pty Ltd t\a The Good Guys (“the Respondent”).
[2] The Applicant was employed by the Respondent on 6 February 2009. He was notified of the termination of his employment on 7 August 2009. The date the termination took effect was 15 August 2009. The Applicant was employed for a period slightly in excess of six months.
[3] For that period, the Applicant performed duties as an administration assistant\cashier on a part-time basis (rostered on for 3 day per week). 1 This information was confirmed by the Applicant over the course of the proceedings in so far as he worked a regular 40 hour fortnight, and performed duties on Mondays, Fridays and Saturdays.
[4] The Respondent initially believed that the Applicant was subject to the minimum period of employment provisions set out at s.382 and s.383 of the FW Act.
[5] That matter was resolved at a Directions Conference when the relevant provisions of the FW Act were made available to the Respondent. The reason for this was that the Respondent agreed that the date of notification of the termination of employment was not the same as the date on which the Applicant’s employment was terminated.
[6] Section 383 of the FW Act is predicated on the date the dismissal took effect and not the date on which the employee was notified (in this case) of the impending termination of employment (which was subject to 7 days notice which the Respondent required to be worked out).
[7] But for the requirement to serve his notice period, the Applicant’s period of employment would have been within the minimum period of employment, as defined.
[8] The Respondent contends that the Applicant’s employment was terminated for a number of reasons, which are set out below. I have dealt with each of the relevant evidentiary themes and incorporated the competing evidence at each point.
Tardiness
[9] The Respondent contended that the Applicant was regularly late starting shifts and on at least one occasion did not attend a shift. The Respondent stated that the Applicant was warned in relation to such conduct and was informed that his employment may be terminated if the conduct persisted. The Applicant was said to have acknowledged this warning and the circumstance to which it applied.
[10] Notwithstanding this, the Respondent contended that the Applicant’s conduct continued unabated.
[11] The Respondent provided some evidence of these events. On Saturday, 23 May 2009, the Respondent’s work dairy records the Applicant not having appeared at work after such time as he was due to attend for his shift. The diary record goes on to state that:
“Dale rang Brad at home, claims he was ill. He asked Dale not to ring him at home – what a joke. Have organised casual to go in.”2
[12] On 25 May 2009, the diary entry records:
“Spoke with Brad regarding Saturday. Not ringing in when sick, told him not acceptable behaviour. Handed him manager’s and supervisor’s mobile no’s again to ring before 9.00am.”
[13] The Applicant contended that this was not case at all. Rather, he had telephoned the store to find the answering machine was still on-line, and then rang the Assistant Manager, Mr Dale Riseley (after obtaining his mobile number from Ms Daniel). He left a message for Mr Riseley and thereafter contacted him again to confirm receipt of the message. 3
[14] Mr Dale Riseley, the Assistant Manager, gave evidence he was not contacted by the Applicant and instead, with the store not having been contacted, he rang the Applicant at home to ascertain his whereabouts. 4
[15] The Applicant also contested Mrs Griffiths’ evidence and stated that he explained the above circumstances to Mrs Griffiths and was not handed any mobile telephone numbers. 5
[16] Ms Daniel gave evidence that she had been contacted at home by the Applicant seeking Mr Riseley’s mobile phone number. 6
[17] The diary note for the same day (25 July 2009) records also that:
“Brad late again.”
[18] The Applicant contended that this record was incorrect as the Respondent’s electronic time sheet records (“Electronic Time Sheet Records”) demonstrate that he clocked on at 8.53am, seven minutes before his official starting time.
[19] On Monday, 15 June 2009, the diary records:
“Brad late.”
[20] The Applicant contended that this record was incorrect also as the Electronic Time Sheet Records demonstrate that he clocked on at 9.01am, one minute after his official starting time.
[21] On Friday 19 June 2009, the Electronic Time Sheet Records indicate that the Applicant was 8 minutes late to work. The diary record for this day makes no comment as to the Applicant’s late arrival on this day, though there was subsequent discussion about the Applicant’s alleged late starts (see below).
[22] On Friday 26 June 2009, the diary records as follows:
“Spoke with Brad re late starts.
“I was at front counter after I had returned from lunch he left the counter and I asked “where are you going? Laura is still at lunch.” He replied “I’m on lunch” and left.”
[23] Mrs Griffiths’ evidence was that only one cashier was permitted to go to lunch at a time.
[24] Her further evidence was that upon the Applicant returning from his break, she counselled the Applicant and warned him that he might face dismissal.
[25] The Applicant denied this was the case and that he was never constantly late for work. He also claimed, presumably as a re-joinder to Mrs Griffiths’ claim, that she only ever came to the counter to relieve for lunch breaks, and his conduct should be seen in that context. 7
[26] On Monday, 13 July 2009 the diary entry is as follows:
“Brad late because of traffic.”
[27] The Applicant’s start time for that morning as per the Electronic Time Sheet Records is 8.57am, three minutes before the official start time. There is a discussion below as to what constitutes the “official” start time and how this was to be determined.
[28] On Friday, 17 July 2009, the diary entry reads:
“Brad late 9.12am”
[29] The Applicant’s start time for that morning as per the Electronic Time Sheet Records is 8.57am, three minutes before the official start time.
[30] On Monday, 20 July 2009, the diary entry by Mrs Griffiths reads:
“I went to front counter and asked Karen where Brad was and Karen told me he had rung and wanted to talk to Roy [the Sales Manager] instead of me, Roy was busy so he spoke with Karen and told her he had gone home for lunch and his wife had to go out to her mother and he was left with the children and he would call again with a time so he could come back to work. No phone call. He returned around 2.50 or so.
Spoke with Karen and told her in future to put the calls through to me and she said “he didn’t want to talk to me”.
“I have docked his pay 1¾ hours.”
[31] Mrs Griffiths’ evidence was that the Applicant upon returning to work was informed that whilst he may have had a family issue he could have handled the matter more constructively and that he needed to contact her as the Applicant’s supervisor. Mrs Griffiths stated that the Applicant responded with a comment to the effect that his family was more important than work, and was otherwise unresponsive. 8
[32] The Applicant claimed, in response to this criticism, that he contacted “work to advise them that I would be late for work & then contacted them a couple of times to keep them up to date on my situation.” 9
[33] Ms Daniel states that the Applicant telephoned her in relation to the above incident and asked to speak with Roy Howard, the Sales Manager. Mr Howard’s line was busy at the time so Ms Daniel took the message and gave it to Mr Howard as soon as possible. Mrs Griffiths, Ms Daniel states, was at lunch at that time. The Applicant rang in a short time later and spoke to Ms Daniel, who put the call through to Mr Howard, who spoke with the Applicant. The Applicant rang for a third time and spoke to Ms Daniel, who conveyed the information to Mr Howard and Mrs Griffiths. 10
[34] Ms Daniel states that at no time did she tell Mrs Griffiths that the Applicant had asked not to be put through to her. Ms Daniel stated that she was aware of an instruction to direct calls of such a nature to Mrs Griffiths, but as she was out at lunch at the time she directed the first two calls to Mr Howard as the Sales Manager (but seems to have taken a message herself in relation to the third purported call).
[35] On Monday, 27 July 2009, the diary entry reads:
Brad late 9:16am.
“Took Brad aside advised him that he was running late on a regular basis and it wasn’t good enough.
“He replied “It’s because he takes his child to school.
“I told Brad that he will have to sought it out as it is important as a cashier to be on time and it was putting his employment at risk if he continually ran late.”
[36] The Applicant contended that he never had this discussion with Mrs Griffiths. 11
[37] The Electronic Time Sheet Record for this day records the Applicant’s start time as being 8.59am, being one minute before the official commencement of his roster.
[38] On Monday, 3 August 2009, the diary entry reads:
“Brad late again. Spoke with him. He arrived around 8.58am and started to count his float and to set up the draw at 9.00am the doors were opened” […]
[39] The Applicant’s Electronic Time Sheet Record for this day records his start time as being 8.59am, being one minute before the official commencement of his roster.
[40] The Applicant’s time sheets for the period 13 March 2009 – 14 August 2009 indicate that he arrived at work at the following times:
Twice after 9.00am (by one minute on one occasion and by 8 minutes on the other, excluding the 23 May 2009 on which day he did not come to work at all in the context discussed above).
On four occasions the Applicant arrived at 9.00am.
On seven occasions the Applicant arrived at 8.59am.
On five occasions at 8.58am.
On four occasions at 8.57am.
On four occasions at 8.56am.
On five occasions at 8.55am.
On three occasions at 8.55am.
On three occasions at 8.54am.
On five occasions at 8.53am.
On two occasions at 8.52am.
On three occasions at 8.51am.
On two occasions at 8.50am.
On two occasions at 8 49am.
On one occasion at 8.48am.
On one occasion at 8.47am.
On one occasion at 8.46am.
[41] The Applicant’s time sheets indicate that he commenced work at 9.05am on Friday, 14 August 2009 (the last day of his notice period and therefore after such time as the Respondent had acted to terminate his employment).
[42] Mrs Griffiths gave evidence that whilst she recorded a number of the instances of the Applicant being late or tardy, she did not record all of them. 12
[43] Ms Laura Ogle, a cashier who worked with the Applicant, gave evidence that the Applicant was consistently late for work in that he was not ready to start working at 9.00am and she had brought this issue to his attention. 13
[44] Ms Ogle also noted cashier staff were given an extra 30 minute paid lunch break to offset the time spent in setting up and closing down their cash registers. 14
[45] Ms Ogle, in her viva voce evidence, claimed she was informed by Mrs Griffiths shortly after the Applicant was employed that the new above arrangement was in place to ensure that cashier staff were able to set up for the day’s work prior to the opening of the doors to customers.
[46] She gave further evidence that she recalled Mrs Griffiths explaining the new arrangements to the Applicant and that a letter was placed in each cashier’s pigeon hole outlining the change. Mrs Griffiths gave evidence to the same effect.
[47] The Applicant denied ever being informed of these arrangements. He did admit under cross examination, though, that his pay slips gave evidence that he was being paid for a half an hour of his one hour lunch break, though he subsequently contended that the Electronic Time Sheet Records showed that he took a forty minute lunch break.
[48] Mr Dale Riseley, the Assistant Manager gave evidence reflecting Ms Ogle’s concern that the Applicant was still preparing his cash draw in front of customers as the store opened. 15
[49] Ms Ogle and Ms Daniel (the later who appeared as a witness for the Applicant) gave evidence that they ordinarily attended for work some time before the rostered shift time in order to prepare their cash draws (before customers entered).
[50] Ms Ogle also stated that the Applicant was consistently late back from lunch and left his cashier’s counter more often than was permitted for purposes of taking breaks. Ms Ogle was present when Mrs Griffiths, Administration Manager, counselled the Applicant about this matter. 16 Mr Bailey, Sales Assistant Manager also gave evidence, in broad terms, that he observed the Applicant being “just on time or late for work” and that on one occasion he did not return to work after lunch (to Mr Bailey’s knowledge) and this left “us confused as no contact could be established with him for a long period”.17
[51] Ms Shelley Schulz, a Sales Professional for the Respondent, gave evidence that she “on more than one occasion” observed the Applicant arriving just before the customers entered the door. 18
[52] Ms Ogle gave further evidence that the Applicant was on several occasions late to work on Saturday mornings but because the manager was often too busy to manage the situation and Ms Ogle herself was required to attempt make telephone contact with the Applicant. Ms Ogle stated that she was aware that employees were provided with their manager’s mobile phone numbers and expected to contact them if they were unable to attend their shift. The Applicant did not, according to Ms Ogle, comply with this common direction. 19
[53] Ms Riseley gave evidence that on one Saturday morning he counselled the Applicant verbally for his continued late starts. 20
[54] Similarly so, Mr Roy Howard, Sales Manager at the store, also gave evidence that the Applicant was late to work or late back from lunch several times, and that it was sometimes necessary to telephone the Applicant to ascertain his whereabouts. 21
[55] The issue about whether the Applicant was late for work or not was complicated by the different reference points used by the Applicant and others for identifying the time at which the commenced his duties.
[56] The Applicant relied exclusively on the system computer time recorded when he swiped his card to log in on the register. The Respondent determined the time by reference to the store clock, which it maintained by the exclusive shop-wide reference for the day’s start and finishing times. The relationship of these two clocks is inherently uncertain with there being wide variations over relatively short intervals.
[57] The Respondent was of the view that the store clock was the only visible reference for all staff (including those sales staff who do not have access to the computer system) and has been for the period of its operation, which is a period of some eight years.
SHORTFALLS
[58] The Respondent contended that on two occasions the cash register the Applicant was assigned to work at was short of cash at the end of the Applicant’s shift. The Applicant was warned, at least on one occasion, that future shortages would put his employment in jeopardy.
[59] Upon one of the shortfalls being pointed out to him, the Respondent claimed the Applicant's response was that it could be sorted out by the next cashier and he then left the building. That is, the Applicant showed no willingness to address or explain the situation or any intention to improve the performance of his duties.
[60] In relation to this shortage, the Respondent’s diary records for Monday, 6 July 2009:
“Brad short $50.00 refused to find it saying not his problem.”
[61] The Tender Rec Report for that day has a notation which reads:
“Brad walked out. Karen found discrepancy.”
[62] The Respondent’s argument was that Karen Daniel, the incoming cashier, had telephoned the proprietor and identified the shortfall left by the Applicant and complained of his conduct in leaving the store for her to deal with the problem.
[63] Mrs Griffiths’ evidence was that Ms Daniel told her of the shortfall in the Applicant’s draw on the morning of 7 July 2009. Mrs Griffiths states that Ms Daniel complained to her that the Applicant left for the day without trying to resolve the error. Mrs Griffiths further stated that Ms Daniel told her that the Applicant had said that “It wasn’t his problem”. Mrs Griffiths also gave evidence that Ms Daniel had told her that she had brought the matter to the proprietor’s attention the previous day, and that:
“Ms Karen Daniel and Mrs Laura Ogle found the error and organised for the $50.00 to be returned to the store.”
[64] Mrs Griffiths also gave evidence that she had been the person who had warned the Applicant that his employment was in jeopardy if he mishandled cash and that he had to show greater care. 22 The diary entry for Friday, 10 July 2009 records a summary of this discussion:
“Talked with Brad today regarding $50.00 under on Monday. Told him the cash handling is major to his duties. Cautioned him that his actions were irresponsible and would lead to his dismissal. As this is not the first time he has done this.
“Short meeting with cashiers regarding cash handling responsibilities. Laura, Brad & Amanda. […]”
[65] The Applicant for his part contested these claims and contended instead that he had discovered the shortfall and asked Ms Daniel to confirm the $50.00 discrepancy. The reason for the shortfall was a result of transaction where a customer was overpaid, and the Applicant identified this person by examining the security footage in the company of Mr David Griffiths. The Applicant, having then identified the customer contacted her and arranged for the over-payment to be re-paid the following week, and advised Mr Griffiths of this outcome. 23
[66] The Applicant also claims that he attended no meeting with Mrs Griffiths on 10 July 2009. 24 Similarly, Ms Daniel claimed that she also was not present on that day either.25
[67] Ms Daniel further gave evidence in corroboration of the Applicant’s broad sketch of the manner in which the cash draw shortfall was identified and resolved, including reference to the Applicant having scrutinised security video footage in the company of Mr Griffiths. The Applicant, Ms Daniel stated, also left the store 30 minutes after his rostered finish time (which was 4.30pm). 26
[68] Ms Daniel also states that the written comment on a Tender Rec document that stated the Applicant had walked out of the store and that she (Ms Daniel) had discovered the shortfall were inserted after such time as she had signed the form and were not endorsed by her. 27
[69] As is evident, there is a stark discrepancy in the parties’ respective constructions of this incident.
[70] Ms Laura Ogle, another cashier, gave evidence herself of another occasion on which the Applicant had a shortfall in his cash draw towards the end of his shift. Ms Ogle claimed the Applicant could not reconcile his cash draw and requested that she assist him. Ms Ogle contends that she provided the assistance at some difficulty to herself as the Applicant would not assist her or answer any incoming calls or serve any customers whilst she did so, and she needed to re-start the count on a number of occasions. The Applicant was also said to have left work as his shift had ended and left the issue for Ms Ogle and the Store Manager to resolve, which they did, but only after staying later at work than they normally needed to. 28
PERFORMANCE OF ADMINISTRATIVE DUTIES\REFUSAL TO ACCEPT REASONABLE DIRECTION
[71] Ms Ogle gave evidence that the Applicant was generally uncooperative and gave as an example occasions when she was called from her lunch break, as a senior cashier, to resolve certain issues. When she appeared to carry out these tasks the Applicant would immediately take his lunch break and not permit her to finish eating her lunch before commencing his. When Ms Ogle brought this issue to the Applicant’s attention, she stated that he responded in a hostile manner. 29
[72] Ms Ogle also stated that the Applicant had a disregard for store policies and gave as an example an occasion when the Applicant represented a product for discounted price to a customer on the basis that it was to be listed for sale in a future store catalogue. The Applicant, Ms Ogle claimed, argued the point with her in front of the customer and thereafter. 30
[73] The Applicant under cross examination claimed he had questioned the relevance of the catalogue, and contended the exchange did not amount to an argument.
[74] On Friday, 19 June 2009, the diary records:
“Chat with Brad re: mobile phone being a(t) counter and putting “Next Cashier” sign up so he could text message people.”
[75] Mrs Griffiths’ evidence was that the two full time cashiers – Ms Laura Ogle and Ms Karen Daniel – had complained of the Applicant’s conduct in these regards.
[76] Ms Ogle’s evidence was that the Applicant gave evidence that the Applicant did not often put up his ‘next cashier’ sign but frequently attempted to use his mobile phone, which he hid under the lip of the counter (turning his chair away from the other cahier (herself) and the cameras. 31
[77] Ms Ogle stated that she brought the issue to the Applicant’s attention on a number of occasions and complained of the use of mobile phone to the Administration Manager. 32
[78] The Respondent’s diary records that on the Applicant's first day of work on 2 February 2009 (which the Applicant states should read 6 February 2009) the Applicant was advised by his Supervisor to leave his mobile phone in his locker. The Applicant contests this and contends that he was permitted to keep the mobile by his counter “as long as the ph[one] was switched off.” 33
[79] Ms Ogle also claimed the Applicant put up his “next cashier” sign so that he could engage in lengthy conversations with customers and friends, which also meant that he did not answer incoming telephone calls.
[80] The Applicant for his part contended that there was an incident on 12 June 2009 (not 19 June 2009) in which he had recourse to send his wife an urgent text message, which he did only after obtaining “approval” to put up his “next cashier” sign. The Applicant claimed that this was the only time he ever put up his “next cashier” sign. 34
[81] The Respondent claimed that the Applicant refused to answer incoming telephone calls during shifts in which he was performing administrative duties, despite this being a core duty. The Applicant, so the Respondent claims, was warned about this conduct and informed that his employment might be terminated if he persisted in not performing all his duties. The Applicant, it was said, never provided a reasonable explanation for not performing all his duties in these regards.
[82] On 3 August 3009 the Respondent claimed that the Applicant refused to answer an incoming telephone call when directed to do so by his Supervisor, Mrs Griffiths. Mrs Griffiths at the time was in the company of the Store Manager. It is alleged that he did so for reason that it was not yet “9.00am”.
[83] Mrs Griffiths gave evidence that both she and Store Manager were “shocked” by the Applicant’s conduct. 35
[84] On Monday, 3 August 2009, the diary entry reads:
“[…] He arrived around 8.58 am and started to count his float and set up the draw. At 9.00am the doors were opened and Roy and myself were at the counter the phones were ringing and I asked him to answer and he replied “I’ve been told not to”. I was going to say something but we had customers in store. Final straw David was away and informed me by phone to dismiss Brad on his next day on which was the 7th Friday.” (sic)
[85] Mr Howard’s evidence corroborated the above incident. 36
[86] The Applicant for his part contended at the hearing that there was an instruction that incoming calls could be accepted prior to 9.00am at the discretion of the employee concerned (as different managerial staff switched the answering service off at different points in time).
[87] Other than that, the Applicant was of the view that he answered the call in question and had only being difficult in jest.
[88] Ms Daniel gave evidence that she was aware of an instruction to not answer the telephones until 9.00am when the doors were open. 37
[89] Consistent with the above cited diary note, the Supervisor and the proprietor both conferred later that day and decided to terminate the Applicant’s employment inside the minimum period of employment for reason of his refusal to perform duties and poor performance of his duties over the previous six months. This decision was communicated to the Applicant on 7 August 2009 (which was the commencement of his next shift) during a meeting with the Applicant at which he, Mrs Griffiths and Mr Riseley attended. As it was, the provision of notice was on the basis of the notice period being worked out, so the Applicant was not dismissed within the minimum period of employment. 38
[90] The Respondent contends that it gave the Applicant notice of the reasons for the termination of his employment. The reasons as notified included the subject headings matter discussed above.
[91] The Respondent contends that the Applicant was given numerous warnings regarding his performance and that some of the instances of his were recorded in the Respondent’s daily work diary. Other evidence for the actions taken by the Respondent to advise the Applicant of the reasons was that his pay was docked for reasons of non-attendance without reason.
[92] The diary note for Friday 7 August 2009 states only that the Applicant was informed that he was “unsuitable for this job.”
[93] Mrs Griffiths’ direct evidence was that she informed the Applicant for reason of his:
“lack of commitment to his position […] his inability to take direction from myself or the other Manager or Supervisor [along with] his inability to carry out his daily duties.” 39
[94] Mrs Griffiths states that she provided the Applicant opportunities to improve his performance and gave him feedback on the issues that were of concern to her as his Supervisor, but the Applicant was indifferent to her advice. 40
[95] Mr Riseley attended the meeting as a witness at Mrs Griffiths’ request, but his recollection of what was said at the meeting (under cross examination) was demonstrated to be unreliable: his memory of the events was far from precise and he showed a willingness to construct conversations retrospectively on the basis of what he believed might have been stated rather than what was stated in actuality.
[96] The Applicant for his part claimed that he received no disciplinary action nor was he given warnings about his performance or conduct over the course of his period of employment (between 6 February 2009 and 15 August 2009).
[97] Indeed, the Applicant claims that at the dismissal meeting on 7 August 2009 he was informed that the performance of his duties was satisfactory but that the Respondent had decided not to keep him on and that if he wanted further information then that would be provided by Mr David Griffiths the following Tuesday, 11 August 2009.
[98] Ms Daniel’s evidence was to the same effect, but that is as communicated to her by the Applicant following the meeting. 41
CONSIDERATION
[99] Section 387 of the FW Act reads as follows:
“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.”
Section 387(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)
[100] It does not appear to me that the evidence in relation to the Applicant’s performance in relation to managing shortfalls in his cash draw provide a valid reason for the termination of his employment or dismissal.
[101] Regardless of who was responsible for the discovery of the identity of the customer who was over-paid, the elementary error on the Applicant’s part was acted upon and resolved promptly and the Applicant did not seek to conceal his error. In short, this was not a matter that in its own right should have warranted the termination of the Applicant’s employment.
[102] Similarly so, while I accept that the Applicant acted in a less than fully cooperative manner in assisting Ms Ogle in resolving a further (modest) cash draw shortfall, about which there is some conjecture as to who was responsible, that too would not warrant the termination of his employment.
[103] At best these are all niggling issues in the employment relationship and are unexceptional features of workplaces that require a cooperative demeanour from employees. Further, there is no evidence of a pattern of cash draw shortages on the part of the Applicant. Two issues only of the kind discussed here in the first six months of employment do not demonstrate a proven inability to perform the duties inherent to a cashier role.
[104] It is much the same story, in my view, in relation to the Applicant’s wider conduct in not answering incoming calls, talking excessively to friends and using his mobile telephone at the cashier’s desk. Having heard Ms Ogle’s evidence, I am satisfied that her observations about the Applicant’s conduct are likely to be an accurate reflection of his behaviour in the workplace, so far as these matters are concerned.
[105] In their own right, however, these are not offences, in the circumstances of this matter, and at this point in time, which warrant the termination of the Applicant’s employment. Again, at best they represent low level of insubordination that is frustrating in an environment where collegiality is sought. But at the time the Applicant's employment was terminated, this conduct had not reached a point at which it was destructive of workplace harmony or productivity.
[106] Other issues arise, however, in relation to whether the Applicant was late for work.
[107] The parties’ are at loggerheads as to whether or not the Applicant’s conduct revealed a chronic inability to attend to his duties on time.
[108] I have set out the competing claims above.
[109] Even if I accept the Applicant’s evidence, it does demonstrate that almost 50% of the time he managed only to commence duties five minutes or less before the commencement of trading. On the evidence led it takes between five to 10 minutes to set up the cash draw before doors opened. This was a duty that the Respondent required to be completed before customers entered the store and it went to some effort, at least according to Ms Ogle (and to some measure Mrs Griffiths) to ensure that staff completed this task and were not disadvantaged in doing so.
[110] On some 16 times out of 61 recorded times he commenced work (on his reference point for the commencement time) late (on two occasions), or with one minute to spare.
[111] Again putting aside the issue of which was the appropriate clock reference, the Applicant’s conduct caused tension in the relationship with the Respondent and other cashier staff. Ms Ogle advised him to improve his performance. And Mrs Griffiths’ contemporaneous diary notations preserve a record of her concerns and occasions on which she had spoken to the Applicant about the time at which he commenced his duties.
[112] The Applicant, I should point out, did not take me to any occasions on which he challenged the times at which he commenced work on the basis that he was working from the computer time. The Applicant’s reference to the computer or system clock appears to have been a position adopted for the purposes of these proceedings and not one that was evidenced in his conduct whilst an employee.
[113] That is, the Applicant gave no evidence of having cited that he works to the systems clock to any person at any other time for any reason, including when the subject of his late starts was broached by Mrs Griffiths. Indeed, it is difficult to see how start and finish times would be recorded for staff in the enterprise who do not have access to the computer system other than that they (arguably like everyone else) made the store clock the point of reference.
[114] Further, over the course of these proceedings, the Applicant sought to amend his evidence retrospectively about how long he took off for lunch and any offsets for starting a few minutes early or not taking an afternoon tea break. That is, as he examined the Electronic Time Sheet Records he reached different views as to what his conduct might have been in relation to breaks.
[115] It is difficult to know what was in the mind of the Applicant at the time of his employment, as opposed to his reconstruction of his motivation for these proceedings.
[116] Equally so, however, the Respondent’s explanation of the offsets for such breaks and early commencements lacked fixity. The Respondent’s policy in relation to lunch breaks, their duration and the extent to their paid component offset early starts and\or afternoon tea breaks, and if part time employees had an entitlement to afternoon breaks when they finished earlier than full time staff, shifted ground, particularly over the course of Mrs Griffiths’ evidence.
[117] But for all of this, I do not think that the Respondent, finally, had a valid reason for the termination of the Applicant’s employment. The Applicant’s departure from the expectations of the Respondent and his peers, whilst a source of frustration and annoyance, had not, at the point in time at which he was dismissed, contravened a fundamental contractual term, or been demonstrative of an inability to perform his central duties or otherwise evidenced conduct that jeopardised the employment relationship.
[118] Objectively viewed, the relationship between the Applicant and the Respondent was under some measure of tension at the point of the termination, but the Applicant’s conduct was not such that it provided a valid reason for the termination of his employment, at least at or by that time.
Section 387(b) whether the person was notified of that reason
[119] I am not satisfied that the Applicant was notified of the reason for the termination of his employment. Mrs Griffiths contends he was broadly informed of the main themes, whilst Mr Riseley’s recollections are too imprecise to be relied upon.
[120] It appears to me that it is more likely on the balance of probability that the Applicant was dismissed by the Respondent on the presumption that he was within the probationary period of employment, much as Ms Brown’s evidence suggested that she had been dismissed at an earlier period. It follows, in my view, that I should accept the Applicant’s claim that no reasons were given to him and that he was told if he had any queries Mr Griffiths would answer them.
[121] But for the fact the Respondent required the notice period to be worked out the Applicant would have been dismissed within the notice period.
Section 387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[122] Given the above findings, I do not believe the Applicant was afforded an opportunity to respond to the reasons for the termination of his employment.
[123] The Applicant was invited to a meeting without any context being provided beforehand and he was terminated at that meeting without any reasons being given to him.
Section 387(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions
[124] There was no unreasonable refusal by the employer to allow the Applicant to have a support person present at the termination meeting. This quite reasonably is because the Applicant did not realise that he was attending a meeting at which his employment was to be brought into question.
[125] The Explanatory Memorandum in relation to s.387(d) of the FW Act reads as follows:
“Clause 387 - Criteria for considering harshness etc.
1540. This clause is central to the unfair dismissal provisions as it sets out the factors FWA must take into account when considering whether a dismissal was harsh, unjust or unreasonable:
[...]
[387(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;
[...]
1542. These factors are the same as those in subsection 652(3) of the WR Act, with the addition of paragraph 387(d). This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them. It will be one factor FWA must consider when determining whether a dismissal was unfair, having regard to all of the circumstances, including the capacity of the employee to respond to the allegations put to him or her without such a support person being present.”
[126] The Explanatory Memorandum appears to suggest that even where an employee might be refused the participation of a support person, consideration will be given to whether the employee lacked the capacity to respond to the allegations in the absence of the support person.
[127] In the current case, even if the Applicant had been denied the presence of a support person, I have no doubt whatsoever that he would have been more than capable of responding to the allegations his own right, had they been put to him. The Applicant represented himself in this matter and without any assistance, and otherwise exhibited a forthright approach in dealing with his employer and the issues on foot.
Section 387(e) if the dismissal related to unsatisfactory performance by the person —whether the person had been warned about that unsatisfactory performance before the dismissal
[128] The allegation in this matter principally concerns conduct, not performance. The use of mobile phones at the cash register, disobeying or equivocating over directions, being uncooperative or uncivil, and being late for work or tardy are all conduct related issues. Only the issue of the proper maintenance of his cash draw is a matter that goes to performance. Mrs Griffiths’ evidence as cited above was that she had held a meeting of cashier staff to remind them of their “cash handling” responsibilities.
[129] In my view, this application centrally involves issues of conduct, which I have set out and addressed above and s.387(e) of the FW Act does not have direct relevance, as a consequence.
Section 387(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
[130] No submission was put to me in regard to this provision and I have assumed that it has a neutral impact on the procedures followed in effecting the dismissal. I invited any such submissions from the Respondent but they were not forthcoming.
Section 387(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
[131] No submission was put to me in regard to this provision and I have assumed that it has a neutral impact on the procedures followed in effecting the dismissal. Again, I expressly invited such submissions from the Respondent but none were forthcoming.
Section 387(h) any other matters that FWA considers relevant
[132] As I have indicated above, the Applicant was employed only for a short time – marginally in excess of six months.
CONCLUSION
[133] In my view, considering all the above circumstances, and even if I have regard to the short period of the Applicant’s employment, the Applicant nonetheless was harshly, unjustly or unreasonably terminated. That is, I am satisfied that the Applicant was unfairly dismissed for the purposes of Division 3 of the Part.
REMEDY
[134] The directly relevant provisions of the FW Act concerning remedy are as follows. I set these out for the benefits of both parties, both of whom are unrepresented litigants and have demonstrated (understandably) some difficulties in appreciating the relevant statutory arrangements.
“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.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
[...]
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(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 FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
393 Monetary orders may be in instalments
To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
[135] I am able to make an order for a remedy in relation to this application as the requirements of s.390(1) and s.390(1)(b) of the FW Act have been met.
[136] I do not consider that it is appropriate to re-appoint the Applicant or to appoint the Applicant to a commensurate position in relation to either s.391(1)(a) and s.391(1)(b) of the FW Act.
[137] The Applicant has stated that he has no wish to be re-employed by the Respondent. 42 He made this statement on the basis of his less than complementary perspective on the Respondent. In such circumstances, where there would be little prospect of re-establishing a productive and cooperative relationship, I could not make a finding that it would be appropriate to re-establish, in any form or guise, the employment relationship.
[138] Section 392 of the FW Act sets out the criteria to which I must give regard in determining any amount of compensation I might order the Respondent to pay the Applicant. I will consider each of these in succession below.
(a) the effect of the order on the viability of the employer’s enterprise
[139] There is no submission before me that any order I might make under this Division would threaten the viability of the Applicant’s enterprise.
(b) the length of the person’s service with the employer
[140] I have noted above that the Applicant was employed for only a short time – marginally more than six months. As an employee for a short period of time, the length of Applicant’s service with the Respondent on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum).
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[141] In my view, the Applicant would not have remained an employee of the Respondent for a particularly long period.
[142] The Applicant’s conduct was such that it would have been unlikely, on all probability, that the employment relationship would have been sustained beyond a further 12 weeks, at best. This is a judgment that I reach on the basis that the relationship between the parties, as the evidence in the proceedings demonstrated, was in decline.
[143] In my view, having heard the evidence, the tension between the parties would have been likely only to have escalated over the coming period, with the reasons for termination on all probability becoming more defined and better substantiated.
[144] Whilst I have found the Applicant to have been harshly, unjustly or unreasonably terminated, I have not sought to cast him as an innocent.
[145] The Respondent advised that the Applicant’s gross fortnightly earnings (including penalties) whilst employed by the Respondent were $681.98.
[146] The Applicant’s remuneration since the time of the termination of his employment and up the end of the three month period for which I believe that he would have remained in employment amounts to 12 weeks or 6 fortnightly pays multiplied by $681.98 which equals $4,091.88.
[147] In reaching this conclusion I am conscious that I am required under the FW Act to evaluative the likelihood of the employment relationship having any necessary durability over time. The Full bench in Sprigg v Paul's Licensed Festival Supermarket Print R0235; (1998) IR 21 put it this way:
“37. We will use 4 steps in the calculation of the lost remuneration, the remuneration the appellant would have received or would have been likely to receive if employment had not been terminated. The First step is that, we estimate that but for the termination of the employment, the appellant would have been employed for a reasonable period of time. On the evidence, the appellant was highly regarded by his employer. The respondent submitted to Watson SDP:
"There was no suggestion that anything other than a long standing relationship was going to continue and it had already been a long standing relationship by then, marginally short of ten years at the time of the meeting" [at p.163 of transcript]
However we describe the further period as reasonable because there had been discussions about the future. Given Mr Sprigg's evidence before the Commission, we do not assume that Mr Sprigg would have been content with his situation for years into the future. We therefore assess the further period as one year. We accept the figure advanced by the parties as the result of Watson SDP's calculation of wages as $27,000. We therefore estimate $27,000 as the gross remuneration lost figure for the purposes of this step. Before leaving this point, we acknowledge that there is a speculative element of involved in all such assessments. We believe it is a necessary step by virtue of the requirement in s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.” [my emphasis]
[148] Over the course of these proceedings there appears to me to have been a measurable degree of discernible mutual antagonism (well prior to the termination in August 2009). In all the circumstances, I could not reach a conclusion that the Applicant’s employment would have endured beyond the short period that I have determined above.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[149] The Applicant indicated that he rapidly sought access to Centrelink Newstart payments upon his dismissal.
[150] In my view the Applicant has made suitable efforts of the prospective period of his employment to mitigate the effects of unemployment, and I make no deduction therefore for reasons of absence of mitigation.
(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
[151] The Applicant earned income between December 2009 and the date of these proceedings (which may be modestly supplemented by further earnings between the time of the hearing and the making of the order).
[152] But for the anticipated period of employment, which I have found to be 12 weeks, the Applicant had no earnings. In this regard I note the Applicant commenced full time employment on 7 December 2009 and continues to be employed in the capacity.
[153] I adopt this approach not simply as a common sense measure, but because it is the approach adopted by the Full Bench in the appeal by Appeal by N Ellawala against decision of Commissioner Foggo of 5 November 1999 [Print S0691] – Re: N Ellawala v Australian Postal Corporation [Print S5109] (17 April 2000):
“Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the “anticipated period of employment”. This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the “anticipated period of employment” are deducted. An example may assist to illustrate the approach to be taken.
In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first 12 months after termination (that is $36,000) is deducted from the Commission’s estimate of the applicant’s lost remuneration. Monies earned after the end of the “anticipated period of employment”, 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.”
(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
[154] I have had regard to the modest further impact of this requirement, though for the reasoning given immediately above, I have not had cause to make a deduction from the Applicant’s compensation.
(g) any other matter that FWA considers relevant
[155] There are no other reasons relevant to my considerations, other than the comment I will make under s.392(3) of the FW Act below.
[156] Section 392(3) of the FW Act reads as follows:
“Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.”
[157] I have discussed above the nature of the Applicant's conduct. Though that conduct created a level of resentment and annoyance amongst his work colleagues and supervisory staff, I have not found that it constituted conduct that substantiated a valid reason for the termination of his employment. It does not follow, however, that any conduct that does not found a valid reason is not misconduct of the kind contemplated in s.392(4) of the FW Act.
[158] Section 392(4) of the FW Act makes it mandatory for Fair Work Australia to reduce the amount Fair Work Australia would otherwise have ordered under s.392(1) of the FW Act “by an appropriate amount” in light of the misconduct for which the Applicant that has been found objectively to have been responsible.
[159] In my view, the Applicant’s misconduct is at the low end of the spectrum. I have described his conduct above.
[160] Again, in my view, I would consider it appropriate to reduce the amount I would otherwise have ordered under s.392(1) of the FW Act by 10% only.
[161] No other issues arise in relation to the determination of the appropriate remedy that requires my consideration. There are no issues in relation to contingencies that I consider relevant for the anticipated period of employment, the compensation cap or the payment of monetary orders by instalments (for purposes of s.393 of the FW Act).
CONCLUSION IN RELATION TO REMEDY
[162] Because of the reasons I have discussed above, the Respondent must pay the Applicant within 14 working days from the date of the order in PR998520 (as issued simultaneously with this decision) the amount of $3,682.70, subject to the applicable rate of taxation.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr Bradley Davidson for himself
Mr David Griffiths for the Respondent
Hearing details:
2010.
Bundaberg.
June 3 and 4.
1 Witness statement of Mrs Madeleine Griffiths dated 6 May 2010 at Page 1
2 Witness statement of Mrs Madeleine Griffiths dated 6 May 2010 at Page 2; Witness statement of Mr Dale Riseley dated 28 April 2010 at Pages 1 and 2
3 Submissions prepared by Mr Bradley Davidson (undated) at PN 2
4 Witness statement of Mr Dale Riseley dated 28 April 2010 at Pages 3-4
5 Submissions prepared by Mr Bradley Davidson (undated) at PN 3
6 Witness statement of Ms Karen Daniel (undated) at Page 1
7 Submissions prepared by Mr Bradley Davidson (undated) at PN 5
8 Witness statement of Mrs Madeleine Griffiths dated 6 May 2010 at Page 3
9 Submissions prepared by Mr Bradley Davidson (undated) at PN 8
10 Witness statement of Ms Karen Daniel (undated) at Page 1
11 Submissions prepared by Mr Bradley Davidson (undated) at PN 9
12 Witness statement of Mrs Madeleine Griffiths dated 6 May 2010 at Page 2
13 Witness statement of Ms Laura Ogle (undated) at Page 3
14 Witness statement of Ms Laura Ogle (undated) at Page 3
15 Witness statement of Mr Dale Riseley dated 28 April 2010 at Page 1
16 Witness statement of Ms Laura Ogle (undated) at Page 3
17 Witness statement of Mr Rylan Bailey dated 27 April 2010
18 Witness statement of Ms Shelley Schulz (undated)
19 Witness statement of Ms Laura Ogle (undated) at Page 4
20 Witness statement of Mr Dale Riseley dated 28 April 2010 at Page 1
21 Witness statement of Mr Roy Howard dated 28 April 2010
22 Witness statement of Mrs Madeleine Griffiths dated 6 May 2010 at Page 3
23 Submissions prepared by Mr Bradley Davidson (undated) at PN 6
24 Submissions prepared by Mr Bradley Davidson (undated) at PN 7
25 Witness statement of Ms Karen Daniel (undated) at Page 2
26 Witness statement of Ms Karen Daniel (undated) at Page 1
27 Witness statement of Ms Karen Daniel (undated) at Page 1
28 Witness statement of Ms Laura Ogle (undated) at Page 1
29 Witness statement of Ms Laura Ogle (undated) at Page 4
30 Witness statement of Ms Laura Ogle (undated) at Page 4
31 Witness statement of Ms Laura Ogle (undated) at Pages 3-4
32 Witness statement of Ms Laura Ogle (undated) at Page 4
33 Submissions prepared by Mr Bradley Davidson (undated) at PN 1
34 Submissions prepared by Mr Bradley Davidson (undated) at PN 4
35 Witness statement of Mrs Madeleine Griffiths dated 6 May 2010 at Pages 3-4
36 Witness statement of Mr Roy Howard dated 28 April 2010
37 Witness statement of Ms Karen Daniel (undated) at Page 2
38 Witness statement of Mrs Madeleine Griffiths dated 6 May 2010 at Page 4; Statement of Mr Dale Riseley dated 28 April 2010 at Page 2
39 Witness statement of Mrs Madeleine Griffiths dated 6 May 2010 at Pages 4
40 Witness statement of Mrs Madeleine Griffiths dated 6 May 2010 at Pages 4
41 Witness statement of Ms Karen Daniel (undated) at Page 2; Character Reference for Brad Davidson provided by Karen Daniel
42 Transcript of Proceedings dated 3 June 2010 at PN 143 and 144
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<Price code C, PR998058>