1
Fair Work Act 2009
s.394—Unfair dismissal
Peter Paerau
v
Rainshield Roofing Pty Ltd T/A Rainshield Roofing
(U2013/13670)
COMMISSIONER WILSON MELBOURNE, 11 MARCH 2014
Application for relief from unfair dismissal.
[1] Peter Paerau was dismissed from employment by Rainshield Roofing Pty Ltd
(Rainshield Roofing) on 11 September 2013.
[2] For the reasons set out below, I find that Mr Paerau was not unfairly dismissed and
that his dismissal was consistent with the Small Business Fair Dismissal Code (the Code).
INTRODUCTION
[3] Mr Paerau was employed by Rainshield Roofing on 3 April 2012 and during the time
of his employment he performed general labouring duties for the company. Mr Paerau
describes his duties as tidying up after contractors. This included collecting roofsheets and
rubbish from worksites. The rubbish might include scrap metal, wool or tiles. He was also
called on to make deliveries.1
[4] Rainshield Roofing concede that Mr Paerau is a person protected from unfair dismissal
pursuant to s.382 of the Act2. While Mr Paerau was employed as a casual employee, the
evidence in the form of payslips submitted by Mr Paerau and of the various witnesses is that,
at the time of his dismissal there was a reasonable expectation of continuing employment on a
regular and systematic basis3. The 10 payslips submitted with his witness statement, from the
weeks ending 5 July 2013 through to 6 September 2013, show the hours worked each week
were in the range of 31 to 44.54. There is also no contention before me that his dismissal was
a case of genuine redundancy. As a result, and since Mr Paerau’s period of employment
extends beyond the minimum employment period, I find Mr Paerau was a person protected
from unfair dismissal at the time of his dismissal.
1 Statement of Peter Paerau dated 9 December 2013, Exhibit A1, para 3 – 4
2 Respondent’s Outline of Submissions dated 24 January 2014, para 2
3 Fair Work Act 2009, s.384(2)
4 Paerau, op. cit., Attachment PP1
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DECISION
AUSTRALIA FairWork Commission
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[5] The parties agree that Rainshield Roofing was a small business employer for the
purposes of the Fair Work Act 2009 (Act) at the time of Mr Paerau’s dismissal5. In this
regard, the company submitted that it employed eight people at the time of Mr Paerau’s
dismissal.6
[6] This agreed fact leads to an initial examination of whether Mr Paerau’s dismissal was
consistent with the Code. Rainshield Roofing contend that the dismissal was consistent, for
the reason either that it meets the tests within the Code for a summary dismissal, or a
dismissal for a valid reason based on Mr Paerau’s conduct or capacity to do his job.
SMALL BUSINESS FAIR DISMISSAL CODE
[7] The provisions of s.396 of the Act require the Commission to have regard to certain
initial matters before turning to consideration of the merits of the application, and one such
matter for initial determination is consistency with the Code. The Code is declared pursuant to
s.398 of the Act and provides;
“Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the
employer believes on reasonable grounds that the employee’s conduct is sufficiently
serious to justify immediate dismissal. Serious misconduct includes theft, fraud,
violence and serious breaches of occupational health and safety procedures. For a
dismissal to be deemed fair it is sufficient, though not essential, that an allegation of
theft, fraud or violence be reported to the police. Of course, the employer must have
reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he
or she is at risk of being dismissed. The reason must be a valid reason based on the
employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks
being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to
respond to the warning and give the employee a reasonable chance to rectify the
problem, having regard to the employee’s response. Rectifying the problem might
5 Transcript, PN 52
6 Respondent’s Outline of Submissions, op. cit., paras 8 and 9; Statement of Darren Salan dated 24 January 2014, Exhibit R1,
para 5
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involve the employer providing additional training and ensuring the employee knows
the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the
employee can have another person present to assist. However, the other person cannot
be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with
the Code if the employee makes a claim for unfair dismissal to Fair Work Australia,
including evidence that a warning has been given (except in cases of summary
dismissal). Evidence may include a completed checklist, copies of written warning(s),
a statement of termination or signed witness statements.”
BACKGROUND TO THE APPLICATION
[8] Mr Paerau’s employment included driving a Nissan Patrol with a trailer7. Mr Paerau
was dismissed from employment on 11 September 2013. His dismissal arose immediately
after the third of three notable events on that day;
While driving the company vehicle with a loaded trailer on the South Gippsland
Highway, he lost a trailer wheel. The trailer had two axles and four wheels and, on
the basis of Mr Salan’s evidence, was capable of safely carrying a load of two
tonnes.8
There was a telephone call between Mr Paerau and Mr Salan that took place
immediately after he realized he had lost a trailer wheel. The content of the call is
disputed, however it is agreed by Mr Paerau he was upset during the call9.
There was a face-to-face interaction between Mr Paerau and Mr Salan that took
place shortly after the phone call in the Rainshield Roofing premises. Mr Salan says
what happened in the discussion caused him to summarily dismiss Mr Paerau.
[9] Rainshield Roofing’s primary submission is that the conduct of Mr Paerau on 11
September 2013 justified his summary dismissal as consistent with the Code and, in the
alternative, that if it did not there was a valid reason based on Mr Paerau’s conduct or
capacity to do the job.
[10] In this latter regard Rainshield Roofing referred to several incidents in Mr Paerau’s
period of employment that it said, cumulatively, gave it grounds for dismissal. The factors
which Rainshield Roofing argue amount to a valid reason based on Mr Paerau’s conduct or
capacity to do the job are;
An incident at a paint supplier
An incident with a co-worker
7 Paerau, op. cit., para 4
8 Transcript, PN 560
9 Transcript, PN 242-244
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Use of a company issued mobile phone
Use of a company issued fuel-card
[11] Rainshield Roofing led evidence about a further issue, which related to a complaint by
another contracted worker, however conceded it had not raised the matter with Mr Paerau and
that in any event the complaint was hearsay10.
EVIDENCE
[12] Four people submitted witness statements and gave oral evidence in this matter.
[13] Mr Paerau, the Applicant, gave evidence on his behalf, and three witnesses gave
evidence on behalf of Rainshield Roofing;
Mr Darren Salan, one of two Directors of the company;
Mr Nathan Butler, the Operations Manager;
Mr Steven Bastalich, the other Director.
[14] In considering the evidence and submissions before me I find that Mr Paerau’s
evidence is generally unreliable and that where there is a conflict between his evidence and
that of either Mr Salan, Mr Butler or Mr Bastalich, I prefer their evidence to his.
[15] Mr Paerau’s oral evidence was, at times, inconsistent. Even making allowances for the
fact that Mr Paerau may not have fully understood some of the propositions being put to him,
I cannot find that his evidence was reliable and capable of acceptance.
[16] I will refer to these matters in detail when I refer to the evidence given.
[17] While Mr Salan’s evidence is capable of acceptance, on occasion it suffered from
generality.
[18] I accept Mr Butler’s evidence unreservedly, although I note that his evidence is
restricted to the events surrounding the third event on 11 September 2013 (the face-to-face
interaction). Mr Butler gave his evidence in detail and with a clear and precise recall of
events. I accept him as a person who had little, if anything, to directly gain from giving his
evidence.
[19] While I also accept Mr Bastalich’s evidence unreservedly, I note that it is nonetheless
restricted firstly to a very small number of issues that arose prior to dismissal and secondly to
a certain issue which arose after dismissal and which it is not proper for me to take account of,
since it goes to the potential for settlement of these proceedings.
[20] I will firstly refer to the events of 11 September 2013, and then to those matters which
the company argues justify Mr Paerau’s dismissal for a valid reason based on his conduct or
capacity to do the job.
11 September 2013
10 Transcript, PN 718-721; Salan, op. cit., para 34
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[21] Part of Mr Paerau’s job included driving a truck with a two-axle trailer with four
wheels. He was required to drive the truck to worksites and clean those sites up, including by
collecting debris which was loaded onto the trailer.
[22] While not especially old11, Mr Paerau had criticisms of the trailer. The evidence
nonetheless is that the trailer had been serviced in May 2013.12
[23] On 11 September 2013, when driving Rainshield Roofing’s vehicle and trailer, Mr
Paerau lost a wheel from the trailer (being one of four wheels on a two-axle trailer). Mr
Paerau rang Mr Salan, whose evidence is that the phone call took place at about 11 AM, when
he was meeting with his financial adviser, and that the following conversation took place;
“MR VASILARIS: I want to take you to the day of dismissal, being 11 September
2013. Do you recall that day?---Absolutely.
Do you recall the events that planned out that day?---Yes I do, yes. Very well. I had a
meeting with my financial advisor that morning. He was a little bit earlier. The
meeting was supposed to be for about 1 o’clock, and he ended up coming in around 11
o’clock. It was a bit open-ended. He turned up to the offices. As he turned up, I
received a phone call from Pete. The phone call was about Pete losing a wheel off the
trailer. He was obviously very upset. I told him to calm down and tell me what had
gone on. He told me that, “A wheel had fallen off the fucking trailer. It nearly killed
someone”. I said to him, “Look, settle down, what can we do? Can you find the
wheel? Is everyone okay?”. “Yes, no one has been hurt, but it could have killed
someone”. I said, “Okay, we’ll try and find the wheel and see what we can do. If it’s
safe, put the wheel in the trailer and if it’s safe then make your way back”. He
obviously deemed it not to be at the time, which was fine. He didn’t find the wheel.
The screaming, it developed into a screaming on the phone. He was obviously over the
top upset. That went on for probably, I don’t know, a minute, a minute and a half. I
hung up.
...”13
[24] Mr Paerau broadly accepts Mr Salan’s recollection other than disputing that he was
yelling or verbally abusive or swearing.
“MR VASILARIS: In that call, you told Darren that the wheel of the trailer came off.
Yes?---Yes.
You told Darren that you could have “fucking killed someone”?---To my knowledge,
yes.
You repeatedly said this many times?---No, I didn’t.
11 Salan, op. cit., Attachment F; Transcript, PN 558-561
12 Ibid.
13 Transcript, PN 552 – 553 (in part)
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But you repeatedly said that you could have killed someone?---Well, that’s all I was -
that was on my mind was the wheel had flown off. I didn’t know where it went and I
was afraid that it could have killed someone, and it could have.
Which takes me to my next question. Did you see the wheel come off?---No, I didn’t. I
got waved by a passing car to stop, so it still doubts me today whether I did or not
because I don’t know where that wheel went.
Who in particular were you waved by?---Just a female driver passing by.
Passing by or was it one of the suppliers?---She was behind me and she - and then she
went - she came - because it was South Gippsland Highway, there’s two lanes on
there, so she pulled up next to me and she waved me to pull over.
I want to refer you to paragraph 18 of your witness statement wherein you say, “I took
the tiles to a place in Hampton Park, which is an earthmoving company that use the
tiles. As I pulled up, a lady waved at me. I pulled up and saw that one of the wheels of
the trailer had come off.” So you only knew the tyre came off after a lady waved at
you. Is that correct?---Yes.
So you never saw the tyre fly off?---No, I didn’t.
You didn’t see it inches away from hitting someone?---No.”14
[25] And later;
“MR VASILARIS: Throughout the call, did Darren ask you to calm down?---He might
have, yes.
After the call, you went back to Rainshield’s office?---No. I dropped the trailer off. I
left the trailer where I was and then drove back without it.
At that point in time, you were very angry, weren’t you?---I was upset.
You were furious?---No. I wasn’t furious.
But you were upset?---Yes, definitely upset.”15
[26] I find Mr Paerau’s evidence on this matter unconvincing and self-serving and prefer
Mr Salan’s evidence. I find that in the course of the telephone conversation Mr Paerau was
abusive and swearing.
[27] Immediately after the telephone conversation, Mr Salan told other staff in the office,
including Mr Butler, that he had had a telephone call with Mr Paerau which had been
argumentative, and that he expected Mr Paerau to come to the office in the near future in
14 Transcript, PN 221 – 231
15 Transcript, PN 240 – 244
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order to continue the conversation16. As a consequence of this, Mr Butler asked some other
staff to leave the premises to go to a cafe;
“All right. You said after that, you asked Hayley and Jordana to go next door to go next
door to a café?---Yes, that’s correct.
Why did you do that?---Because I - based on what Darren had told me I thought if
Pete was coming in and - on the warpath, so to speak - not that Darren said warpath or
anything, it would be best that they weren’t in the office for it.
What gave you the impression that that might be the case?---I’d heard from - I’d
worked at Rainshield for a little bit of time there and I’d heard from reports that Pete
had been abusive to tradespeople and things like that in the past. There was an incident
that when I first started - that it was pretty significant.17
[28] Mr Paerau claims that the staff referred to had not gone to the cafe next door and that
they were present during the face-to-face interaction18. I prefer Mr Butler’s evidence in this
regard19 and do not accept Mr Paerau’s.
[29] Not long after the telephone conversation, Mr Paerau came to the Rainshield Roofing
premises. When he arrived, Mr Salan was in a room at the rear of the premises, and still
involved in a meeting with his financial adviser20. I regard Mr Butler’s evidence at this point
to be the most objective recollection of what occurred. Mr Butler’s evidence in this regard is
as follows;
“And about 20 minutes after that Pete arrived. He came in through the main entrance,
which is into the main office, where we have - and basically demanded, “Where’s
Darren?” He came in in a big huff, he said, “Where’s Darren?” I said, “Darren’s in a
meeting out the back, I’ll get him for you,” knowing that Darren did want to know
when Pete came in, but before I’d even had time to move from my desk, which faced
the door, Pete had already gone a subsidiary door which goes into the factory and had
stormed out to open the back office.”21
[30] Mr Salan came out of the meeting room and a heated conversation took place. Mr
Salan’s evidence in this regard is that the following interaction took place;
“My meeting was in the back office with my financial advisor. So I left the girls and
Nathan to their own devices. I went for my meeting. The door was definitely closed. It
was a financial meeting with delicate financial matters that I was discussing with my
financial advisor. I didn’t want everyone hearing what was going on, and the door was
closed and we were at the very end of the office. We were probably 20 minutes, and
the door flew open, Pete come in, and summoned me out and basically just sort of, you
know, summoned me out with his hand and he was looking, you know, very angry. So
16 Transcript, PN 553
17 Transcript, PN 949 – 951, 899
18 Supplementary Statement of Peter Paerau dated 6 February 2014, Exhibit A2, paras 28-29
19 Transcript, PN 899, 949-953
20 Transcript, PN 553, 899
21 Transcript, PN 899 (in part)
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I followed him. I got up. I followed him out through the factory area, into the front
foyer, and into the front office. The door was right behind us. Pete was standing very
close. We were standing right nose to nose nearly. And Pete went along the same lines
as what he was on that phone call, that he could have killed someone. And I said to
him, it was an accident, I said you can’t – things happen. I didn’t know what to tell
him. I didn’t know how to explain it to him, other than it was an accident. I don’t
understand what – and I still don’t understand – what he wanted me to do at that
present moment that could have made things better. He was talking about going to jail.
I said Pete, you won’t go to jail if it was an accident. These things happen. And no one
was hurt at the end of the day, luckily, but it couldn’t have been foreseen. That
conversation went on for probably, I don’t know. It’s hard to gauge time sometimes
when these things are happening, but it was probably three or four minutes, or maybe
not quite. It got quite heated. I did get frustrated with Pete. Pete was standing, you
know, at me. I was quite intimidated. I am 49 years old. I have had a hip replacement, I
need another one – I am not in a healthy position where I can, if something ends up
happening, I can be in a bit of trouble. So in my mind, I’m thinking that I have got to
try and diffuse the situation. Pete was extremely angry. I admit my voice was raised to
try and calm him down, and there was a point there where I thought that I was going to
be assaulted. It was at that point that I told Pete to get out. After I tried to calm him
down, it was very obvious that it wasn’t going to work, and it wasn’t working. I told
him to get out of the office. He refused, flatly refused. I told him to get out. At that
point when he come closer to me, I told Nathan, I said Nathan, call the cops. So at that
point, Nathan called the cops. Pete’s still there. I said Pete, you’re fired, you’re sacked,
get out and go. So at that point, Pete has basically turned on his heels. I said I will go
and get you some money for a cab. I’ve spun the other way to go back into the office
to where we keep the petty cash in. He’s gone outside and gone through the front door
of the office, which was open”. 22
[31] Mr Salan’s evidence on this subject is broadly consistent with that given by Mr Butler,
who gave evidence that;
“And within a few moments after that I could hear a lot of shouting and screaming and
Darren and Pete came back in through that subsidiary door, into the main office, and
Pete was verbally attacking Darren and he was - it was a very hostile situation, it was
threatening, I was very intimated and very scared. They were talking about the wheel
that had fallen off the trailer, which Darren had already had a bit of information about
that as Darren mentioned that to me before going out to the back office. And Pete was
yelling and abusing him saying, “I could have fucking killed somebody.” He was
pointing, “This is your fault” he’s - he was very aggressive, it was almost like he was
standing over Darren and, you know, there were moments where he was getting closer
and not so much - getting closer again, and yes, I was pretty frightened of the situation.
I’m not a big guy - I’m not even a fighter - I sit in an office most of my time so, you
know, that’s me, and, yes, the argument. Darren was trying really hard to calm him
down, he was - he was courteous and polite at first. He saying, you know, “Just calm
down, Pete. It’s not your fault, Pete, it’s no one’s fault, it was an accident.” They kept
going back and forth. He was very repetitive in what he was saying to Darren. He was
saying he was, you know, “I could have fucking killed somebody. It was your fault.”
He wasn’t really - it wasn’t really going anywhere. It was statement after statement, no
22 Transcript, PN 553 (in part)
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questions, no back and forth, it was you know, both trying to calm down. Darren
started to be a bit more firm with him. He was talking over him so Darren couldn’t get
a word in so Darren had to raise his voice and say, “Pete, it’s not your fault, calm
down.” It kind of got to a point where I think Darren realised that he wasn’t going to
be able to, you know, calm Pete down. He said, “Pete, you’ve got to leave the office.”
That was probably the scariest part for me because he repeated it a couple of times,
“You’ve got to leave the office, Pete.” And Pete was - you know, that was when he
was, you know, huffing and the closed fists, and he said, “I’m not fucking going
anywhere.” And at that point that’s when Darren turned to me and said, “Call the
cops.” I immediately called Triple 0, I was still monitoring the situation while on the
phone to Triple 0, they were asking me what was going on and, sort of, like reporting
what was happening. From about that point - as soon as I called the police, Darren
said, “You’re fired, get out”, he actually said, I’ll give you $100 to catch a taxi, and
Pete came around to, sort of, the front of my desk to go into where the petty cash is
kept in the reception area to get $100. Pete had started shooting off out the front door.
Darren about faced and went back to chase him and said, “Don’t take the truck.” They
were still yelling and at that point both of them had exited the office. I was still on the
phone to Triple 0, explaining that there was an altercation, I thought it was going to get
violent, I was concerned. They were asking me, “Do you think he’s going to hit him?”
I responded with, “Yes, he could have,” but then I started to explain that, “He’s gone
now. He’s jumped in the truck and he’s gone off.” “23
[32] In contrast, Mr Paerau’s evidence included;
“Yes, and upon arrival, you demanded to speak with Darren, didn’t you?---No, I didn’t.
Darren was in a meeting. You’re aware of that?---Yes, he is. I don’t know if he was in
a - well, he was talking to someone.
He was with someone in the office?---Yes, in the back room, yes.
Initially you went in the front entrance of the office, is that right, and you asked to
speak with Darren?---Well, you walk - yes. You have got to walk in the front office to
get into the factor.
But I’m saying initially when you were looking for Darren, you went to the front
office first and then Nathan told you that Darren was in the back office. Is that
correct?---Yes. I don’t know. I can’t - yes; I can’t recall.
I put it to you that you stormed into the back office and you demanded to speak with
Darren?---I didn’t demand to speak with him. All I did was - just done that, to come
outside so we can talk about because we were both heated on the phone at the time
when we spoke.
Both of you?---Yes, definitely, because he is yelling at me, I’m yelling at him, you
know. He is saying, “Don’t blame me,” and I’m saying, “But I could have killed
someone.” You know, there might have been swear words thrown around but it was
just - it was the phone call.
23 Transcript, PN 899 (in part)
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So after you, in your words, I guess signal Darren to leave the office area in which he
was having a meeting, you went to the front office area together. Is that right?
---Yes.
And you again told Darren, like you say, you could have “fucking killed someone”?---
Well, he came - he started talking before I started talking, right?
THE COMMISSIONER: That’s not the question. Please answer the question?
---No.
MR VASILARIS: You didn’t say, “I could have fucking killed someone,” in the office
area?---From my knowledge, yes. Like, I’m not going to lie about anything because I
believe in my heart that it’s all - you know, that everything I said is true.
Did you say, “I could have fucking killed someone”?---Yes, I would have.
That’s not what you said moments ago. You blamed Darren for the incident?
---I didn’t blame him, no. I just believe that - - -
You blamed Darren for the incident in your telephone conversation with him?
---Yes.
Yes?---Yes.
Darren repeatedly asked you, not only in the telephone conversation but in person, to
calm down, didn’t he?---Yes. On the phone he did, yes.
Yes, and when you were in the office, he repeatedly asked you to calm down?
---No, he didn’t, because we were arguing. We were both arguing at the moment - at
the time, and then he started saying stuff that made me calm down, you know; that
made me think about what I was saying, and think - - -
Towards the end of the discussion, Darren asked you leave and cool off?---He just told
me to leave.
So he asked you to leave?---Yes.
And you refused (1) to calm down?---No. He told me to leave because he pretty much
said that was it, I was fired.
Did you leave? Before he said you were fired, did you leave?---No.
So you refused a reasonable direction to leave, and I put it to you that he told you calm
down. Is that correct?---Yes. Darren would have told me to calm down, yes.
THE COMMISSIONER: He told you to calm down in the office?---Yes.
MR VASILARIS: It wasn’t until Darren asked Nathan to call the police that you left.
Is that correct?---No. It wasn’t until he told me I was - well, yes, it was.
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Yes?---It was when he said - told Nathan to call the police on me, after he told me that
I was fired, so I stood there arguing my point, trying to get my job back and then he
didn’t want to hear any of it because he just said, “No, don’t need you any more.
You’re fired,” so I just stood there trying to argue back, to just try and conversate with
him to get my job back, and at that time I had to calm down because I wanted my job
back, you know, and he goes, “No, that’s it. Nathan, call the cops,” and he knew that
was the only way he would get rid of me was - you know, because I stood there just
trying to get my job back.
That was after he repeatedly told you to calm down and cool off?---He didn’t
repeatedly tell me to calm down and cool off. He told me, you know, once to calm
down, and which I did calm down during that time I was in the office talking with
him.
But you were in hysterics because you could have “fucking killed someone”?---I
wasn’t in hysterics. I was angry, yes, but I wasn’t trying to intimidate him or anything.
I just wanted to discuss the fact that I could have killed someone and what if I did, and
he didn’t care. That’s what made me - what made it really frustrating was he just did
not care at all if I did, and all I was thinking about was my children, my partner, who
would look after them if I had killed someone, and I said that to him and all he said
was, “It would’ve just been an accident.” How am I supposed to take that? Just be
happy about it and not be angry? Then I said, “You wouldn’t look after my family,”
and he goes, “No. You wouldn’t even have went to gaol,” so I felt I had the right to be
angry, mate.”24
[33] I do not accept Mr Paerau’s evidence in relation to what occurred when he came to the
premises and prefer that of Mr Butler and Mr Salan. In relation to whether he demanded to
see Mr Salan upon arriving at the Rainshield Roofing premises, he initially said he had not,
but then agreed he had signalled to Mr Salan to come out of a meeting to speak with him25.
He gave evidence that his swearing had been confined to the earlier telephone call and then
later agreed he had sworn in the face-to-face interaction with Mr Salan as well26.
[34] While he denied being told by Mr Salan to calm down, he then agreed he had been
told to calm down. In this regard, his evidence was first that Mr Salan “started saying stuff
that made me calm down, you know; that made me think about what I was saying” and in
relation to whether he had been asked by Mr Salan to “leave and cool off” he replied that
“[h]e just told me to leave”27. However, Mr Paerau then agreed he would have been told in the
office by Mr Salan to to calm down28.
[35] The evidence of Mr Salan and Mr Butler on these subjects and others is consistent
both within their own evidence and between the evidence given by the two. Accordingly, I do
not accept Mr Paerau’s version of what occurred in the face-to-face interaction.
24 Transcript, PN 248 – 274
25 see Transcript, PN 248 and 253
26 See Transcript, PN 254 and 259
27 Transcript, PN 264-265
28 Transcript, PN 269-270
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[36] Instead, I prefer the evidence of Mr Butler and Mr Salan about the face-to-face
interaction in the Rainshield Roofing premises on 11 September 2013.
[37] Following the argument in the Rainshield Roofing premises, in which he was told the
police would be called and that he was dismissed, Mr Paerau left the premises to go to the
carpark. Mr Salan’s evidence on what then happened includes the following;
“... I said Pete, you’re fired, you’re sacked, get out and go. So at that point, Pete has
basically turned on his heels. I said I will go and get you some money for a cab. I’ve
spun the other way to go back into the office to where we keep the petty cash in. He’s
gone outside and gone through the front door of the office, which was open. The work
ute was parked at arm’s length from the office door. It was almost right at the office
door. You almost opened it up and you walk straight into it. It was like he said, it was
probably a meter. So as he has walked through the office door, I have realised that he
has gone. So I have come back out and around, and at that time he was getting into the
car, into our work vehicle. I said to him don’t take it, don’t be stupid. He’s told me to
fuck off. He has just closed the door and he had it started, and he was backing out the
drive. He hadn’t backed out the drive. I was standing at the door at the car door, as he
was moving off. So he’s moved off and as he has hit on the concrete, there was a bit of
a screech of the tyre. We’re saying burnout –it’s not burnout. It’s a big work vehicle,
but it does – if you do rev it, I twill screech the tyres, and then he roared off. He didn’t
speed off because it doesn’t speed, I agree with him. But it revs really hard when you
put your foot flat to the floor and you’re revving the ringer out of it. And that was what
was happening. He mightn’t have flew off like a Ferrari, but it was roaring its head off
as he drove out, shouting expletives at me, told me to fuck off, “Fuck off, Das”. And I
was summoning to him to come back, and he wouldn’t do that. So from there we went
back, and the police was still on the phone at the time. We had dialled triple zero, and
they took details from that. ...”29
[38] Mr Butler’s evidence is that he saw only small parts of this interaction, as follows;
“... From about that point - as soon as I called the police, Darren said, “You’re fired, get
out”, he actually said, I’ll give you $100 to catch a taxi, and Pete came around to, sort
of, the front of my desk to go into where the petty cash is kept in the reception area to
get $100. Pete had started shooting off out the front door. Darren about faced and went
back to chase him and said, “Don’t take the truck.” They were still yelling and at that
point both of them had exited the office. I was still on the phone to Triple 0, explaining
that there was an altercation, I thought it was going to get violent, I was concerned.
They were asking me, “Do you think he’s going to hit him?” I responded with, “Yes,
he could have,” but then I started to explain that, “He’s gone now. He’s jumped in the
truck and he’s gone off.” And then Darren came into office and I remained on the
phone with Triple 0 for a little bit and I told them that the situation has been calmed
and he’s gone for now, and they said, “Call us if you need anything.” And then Darren
came back in and that was pretty much that morning so. ...”30.
[39] Mr Paerau’s evidence is that he did not speed-off and that the vehicle he was driving
was not capable of speeding-off. He agrees that he spoke and gestured to Mr Salan in the way
29 Transcript, PN 553 (in part)
30 Transcript, PN 899 (in part)
[2014] FWC 1524
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referred to above. While his evidence is that he did not hear Mr Salan say to him words to the
effect that he should not drive off, he agrees that he knew the vehicle was not his31. He agrees
that as he departed the premises he said “Fuck you, Daz. Get fucked”32 and that he stuck his
middle finger up at Mr Salan33. He also agrees that when he rang Mr Salan about an hour later
he said to Mr Salan words to the effect that he won’t return the car unless he receives a
separation certificate and a payslip34. While Mr Paerau denies threatening Mr Salan, he agrees
the following with respect to whether what he had said was a threat;
“I put it to you that you did, and after you said that, did Darren agree to provide you
with a separation certificate and your payslips?---Yes. He agreed to just give me what I
want just so we could settle - just so I could leave - take the car back and just leave and
just---
And finally, as soon as he agreed, you agreed to return the company vehicle? ---It was
in my mind. It was in my mind anyway because he threatened - he told me that he had
rung the cops and---”35
[40] Mr Salan’s evidence on this point includes that the company had tried to contact Mr
Paerau “to tell him to bring the car back” and that there was a phone call. In the call Mr
Paerau was asking for his separation certificate and his pay slips, and at that point in time Mr
Salan’s main concern;
“...was to get the vehicle back. He wasn’t going to bring it back, full stop, not until the
next day at that point. It was not coming back. He asked for his pay slips and the
separation certificate. I agreed, I said I would give him the separation certificate and
the pay slips, I said, but only based on the fact that you bring the car back right now
and not tomorrow. He agreed to that.
...
I promised that we’d have them done within an hour, which we’d done. Pete come
back and we put $100, the separation certificate, and his pay slips in an envelope, and
we left them at the front. I told him he didn’t have to come in and see us. We left them
at the front, and Pete then turned up, come and checked that everything was there, then
took off in his mate’s car, again shouting expletives, and left.”36
[41] Mr Paerau agrees he drove the vehicle back within an hour of dismissal and that Mr
Salan gave him $100 for a cab for him to get home.37
Prior events
31 Transcript, PN 461 – 465
32 Transcript, PN 288
33 Transcript, PN 290
34 Transcript, PN 292
35 Transcript, PN 301-302
36 Transcript, PN 553
37 Paerau, op. cit., para 50
[2014] FWC 1524
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[42] Rainshield Roofing submit that there were a number of prior incidents involving Mr
Paerau which gave the company cause to counsel him about his work performance. In their
submissions, Rainshield Roofing elevate these incidents to misconduct38 and that the nature of
the conversations amounted to warnings about poor performance39. Rainshield Roofing rely
upon these incidents as a defence against a finding of unfair dismissal in the event that the
incidents on 11 September 2013 in and of themselves are found to be insufficient to allow a
finding of conduct that would justify summary dismissal.
Incident at a paint supplier
[43] In June or July 2012 Mr Paerau was directed to collect materials from one of the
companies supplies paint. Shortly after being directed to collect these materials, Mr Salan
received a phone call from one of the suppliers’ employees who asked him not to send the
same Rainshield Roofing employee to that site again. His evidence on this matter includes the
following from his witness statement;
“13. To the best of my recollection, the telephone conversation contained words to the
effect:
Mr Hyde: “Could you please not send your labourer to pick up materials
again?”
I said: “Why?”
Mr Hyde: “Your labourer parked in our main factory area and we asked him to
move his vehicle, to which he replied fuck off, and caused the vehicle’s tyre’s
to spin and sped off”.
I said: “I’m sorry, it won’t happen again and I will have a word to him”.
14. Mr Hyde did not identify the Applicant directly. However, upon questioning him,
the Applicant admitted to the conduct.”40
[44] Mr Salan took this complaint to be a reference to Mr Paerau. He spoke with Mr Paerau
about what had occurred. Mr Paerau did not deny the incidence but says they had a laugh
about it, whereas Mr Salan disagrees that they all had a laugh about the incident.41
[45] Mr Paerau’s evidence was first that Mr Salan did not issue with him with a warning
but later agreed that Mr Salan had, at the least, counselled him that the behaviour would not
be tolerated and that an apology was required;
“I put to you that upon your admission, Darren issued you with a verbal warning.
Darren said words to the effect, “Your conduct in unacceptable. We don’t tolerate that
type of behaviour. Consider this a warning.” As you said in your evidence, you
apologised for your conduct. This demonstrates at least you had a discussion with
38 Respondent’s Outline of Submissions, op. cit., para 11
39 Ibid., para 46
40 Salan, op. cit., paras 13-14
41 Transcript, PN 377 and 686
[2014] FWC 1524
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Darren and/or you acknowledged wrongdoing?---Yes. In my eyes it wasn’t wrong, you
know, because all I was doing was parking in the factory out of the rain and then - I
didn’t swear at them.”42
[46] Mr Salan’s evidence is that he told Mr Paerau his behaviour was unacceptable and not
to do it again43. Mr Paerau agrees that he apologised for his behaviour44 but that he was not
directed to do this45. Mr Salan’s evidence is that while not directing Mr Paerau to apologise,
Mr Paerau was told that he probably needed to go back and do so46. Mr Paerau was not candid
in his evidence in this regard. Plainly he had been told to apologise, which he did; but he did
not volunteer this in his evidence, instead relying on not having been directed (as distinct
from not having been told).
An incident with a co-worker
[47] Mr Salan’s evidence is that in or about mid November 2012 he was informed by a
former contractor tradesperson that Mr Paerau had “verbally abused him on site and
threatened him physically”.47
[48] Mr Paerau initially did not recall that Mr Salan had discussed a complaint with him in
or around November48, although he later admits that there was a conversation about the
incident49.
[49] Mr Salan’s evidence is that he spoke to Mr Paerau about this complaint and that this
could not happen again50.
[50] Mr Paerau initially gave evidence that Mr Salan did not issue him with a warning,
however later agreed a warning had been put to him; however, his evidence on this point then
dissembled;
“Notwithstanding that, Darren said words to the effect, “You cannot go around
threatening tradesmen on site. That is unacceptable and you can’t do it again because if
you do, we would lose tradesmen and we’ll have to get rid of you”?
---No. I admit, yes, he said that.
He did say that to you?---Yes, but I didn’t go - you know, that is the way you put it.
This is your context, you know.
Do you wish for me to repeat that or - - -
THE COMMISSIONER: Could you, please.
42 Transcript, PN 380
43 Transcript, PN 536, 639
44 Transcript, PN 134
45 Transcript, PN 382
46 Transcript, PN 628
47 Salan, op. cit., para 16
48 Transcript, PN 143
49 Transcript, PN 145 – 149
50 Transcript, PN 545
[2014] FWC 1524
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MR VASILARIS: Darren said words to the effect, “You cannot go around threatening
tradesmen on site. That is unacceptable and you can’t do it again because if you do, we
would lose tradesmen and I would have to get rid of you?
---Yes. He said something like that, but I - you know, I never - I believe I didn’t go
round threatening anyone, but that’s the way he would have said that to me, you know,
like, you know, “You can’t go round threatening people,” so - - -
But Darren clarified and said, “I’m not getting rid of you but take this was a
warning”?---He didn’t say that.
THE COMMISSIONER: Mr Paerau, can I bring you back to what you just said.
Mr Vasilaris put to you, which you agreed, that Darren said something about, “You
can’t go around threatening tradesmen on the site. That’s unacceptable. You can’t do it
again because if you do, we’d lose customers and I’d have to get rid of you.” Did I
hear you correctly when you said in response to that, he can’t go round making these
threats to you?---No. I wasn’t agreeing to that. I was agreeing to the fact that he would
have said something like, you know, “You can’t go around threatening people,” and in
my context, it was - I don’t, but - yes, but I do agree what - - - ”51
[51] As a result of the inconsistencies within Mr Paerau’s evidence, I do not accept it in
relation to this matter. Instead I accept the evidence of the Respondent that the Applicant had
been verbally warned about the circumstances that arose and that a reasonable person would
understand that warning to mean their performance required improvement.
Use of a company issued mobile phone
[52] In order to perform his work, Mr Paerau was issued with a mobile phone, the cost of
which was borne by Rainshield Roofing.
[53] Rainshield Roofing had two occasions on which to counsel Mr Paerau about his use of
the phone and the costs being billed to the company for the phone’s use. The evidence in this
regard includes that there was firstly a complaint made to Mr Paerau by Mr Salan about the
use of the mobile phone to access the Internet, for services without a work-related purposes,
such as YouTube, and that secondly there was a complaint made to Mr Paerau about the use
of the phone for the making of international calls.
[54] Mr Salan’s witness statement provides evidence that the cost of the total excess data
usage attributable to Mr Paerau was $2,936.79 and that total cost of international calls from
his phone was $921.84.”52
[55] Notwithstanding the costs incurred by the company in relation to the use of the mobile
phone, Mr Salan did not seek reimbursement of the charges53.
[56] In early 2013, the Applicant said he had a conversation with Mr Salan about using the
phone to call overseas54. Mr Paerau says this conversation concerned overseas phone calls and
51 Transcript, PN 386 – 392
52 Salan, op. cit., 21, 23
53 Ibid., para 25
[2014] FWC 1524
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not data usage55, and that when he was called into the office it was simply to discuss a phone
bill and he was not told that it was because of international calls56.
[57] The Applicant said (after some inconsistent statements) that he did not recall there
being a meeting57, however agreed as follows
“THE COMMISSIONER: What do you say now?---I say I used the phone for - yes.
No. That’s not the question. The proposition that was put to you was that there was a
meeting held with you about excess mobile and data usage. Do you agree that there
was such a meeting?---No. No, there wasn’t, no.
There was never any such meeting?---No.
There was never a meeting where it was discussed?---Not that I recall, no,
Commissioner. The only one I recall is the conversation we had about me ringing New
Zealand and then that’s when I brought up the usage of data and how I thought that me
making the phone calls came out of the data, because I thought it was free data.”58
[58] Mr Salan advised that they called the Applicant specifically to discuss data usage. Mr
Salan thought there were two separate meetings in his mind59.
[59] Mr Salan said that there were two meetings held in relation to telephone use, the first
being in early 2013 and the second being in September 201360. In relation to the first meeting,
Mr Salan said that they spoke to the Applicant when he came in, as opposed to calling him
in61. The second meeting was more serious62.
[60] The Applicant gave inconsistent evidence with respect to warnings, stating on the one
hand that Darren did not issue him with a warning63, but on the other hand that Mr Salan
“gave me a warning not to do it again”64 and that;
“MR VASILARIS: Did you also misuse the company’s mobile to make overseas calls?-
--I already told you I did.
You did. Did Darren confide to you about this in or about June 2013?---Yes, he did.
Did you admit to making overseas calls to Darren?---Yes, I did.
54 Transcript, PN 173
55 Transcript, PN 175
56 Transcript PN 413
57 Transcript, PN 174
58 Transcript, PN 395 – 398
59 Transcript, PN 641
60 Transcript, PN 729 - 732
61 Transcript, PN 819 - 820; PN 837
62 Transcript, PN 876
63 Transcript, PN 176; PN 402; PN 412; PN 417; PN 418
64 Transcript, PN 195
[2014] FWC 1524
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And upon admission, did Darren issue you with a warning?---He warned me not to do
it again, not to ring New Zealand again.
So he warned you not to do it again?---No. He warned me not to ring New Zealand
again and then he told me he had put a bar on it so I couldn’t anyway.
Did he tell you that if you did it again, that your employment would be terminated?---
No, he didn’t.”65
[61] In contrast, Mr Salan advised that Rainshield Roofing told the Applicant that using the
phone in this manner was prohibited, and that he should not do it again66. In relation to the
international calls, Mr Salan said that “we warned him not to do it again because he’d had a
couple of warnings now with phone usage”67, and that “the verbal warning was not to do it
again or we’ll have to, you know, re-look at his employment68”. Later, Mr Salan said that at
this stage, he didn’t threaten the Applicant with his job, but told him not to do it again
otherwise they’d have to look at his employment69.
[62] I do not accept the Applicant’s evidence in relation to the use of the mobile phone
because of the inconsistencies contained in his evidence.
[63] I accept that Mr Salan spoke with Mr Paerau on two separate occasions about his use
of the mobile phone and the costs which were being incurred by Rainshield Roofing. I accept
that Mr Salan was clear to Mr Paerau on both occasions that the costs which were being
incurred were unacceptable and that a reasonable person, after the first occasion, would
understand that the company would not accept use of the mobile phone other than in
connection with business use.
[64] As a result, I find that Mr Paerau was warned about his use of the company issued
mobile phone.
Use of a company issued fuel-card
[65] As part of his job, the applicant was provided with a motor vehicle. While the
evidence is unclear as to whether this was available for private use or not, the evidence
includes that the vehicle came with a chargecard in order to pay the costs associated with the
vehicle, including refuelling. In late 2012, Rainshield Roofing had reason to discuss with Mr
Paerau his use of the chargecard when Mr Paerau used it to refuel his partner’s car,70 the cost
of which was $321.80.71
[66] The Applicant agreed that he was called into the office to have a meeting with Mr
Salan in relation to this incident72, and agreed a conversation took place73.
65 Transcript, PN 181 – 186
66 Transcript, PN 537 – 538
67 Transcript, PN 539, 646
68 Transcript, PN 649
69 Transcript, PN 827; PN 845
70 Salan, op. cit., para 28
71 Ibid., para 29
72 Transcript, PN420
[2014] FWC 1524
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[67] Mr Salan said that they ‘confronted’ the Applicant about this incident74 and that they
‘summoned’ him in75.
[68] The Applicant did not recall if Mr Salan gave him a warning and denied one had been
given;
“So upon your admission to taking the petrol - I won’t use the word “stealing” - did
Darren give you a warning?---Not that I can recall.
You don’t recall?---No.
Did Darren - - -?---No. I didn’t know if he did.
I put it to you that Darren did give you a warning and that if you did it again, you
would be immediately dismissed?---No. That’s false.” 76
[69] However, later the Applicant conceded the following;
“THE COMMISSIONER: All right, thank you. I have a few questions of my own, Mr
Paerau. The conversation with Darren about the motor pass was in December 2012,
which you agree with that conversation taking place, yes?---Yes.
And you rejected a proposition which was put by Mr Vasilaris which I would like to
put to you again. Did Darren say to you that the use of the motor pass was
unacceptable?---For personal use?
Yes?---No.
Did he say to you that as a result this is your final warning?---No.
Did he say anything to you that would indicate to you that you were in trouble?
---No. I felt that I had done wrong, he told me that I had done wrong.
He did say that you had done wrong?---Yes.”77 (emphasis added)
[70] Mr Salan’s evidence in relation to this matter is as follows;
“MR DIRCKS: In the regards to fuel being the - or using the fuel card, I just want to
speak about that. When you raised the fuel issue with the applicant, did he offer to pay
for the fuel?---After he was caught?
When you had this meeting?---Yes, after we’d summoned him in he - he may have -
I’m not 100 per cent sure, to be honest. I’d accept his version if he said that. I can’t -
73 Transcript, PN425
74 Transcript, PN540
75 Transcript, PN771
76 Transcript, PN204 - 207
77 Transcript, PN 425 – 430
[2014] FWC 1524
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to be perfectly honest I cannot recall that exactly. But I - but he more than likely
probably would have.
And I put it to you that you told the applicant not to worry about paying in response to
that?---Again, we let - silly us, we let it slide.
THE COMMISSIONER: Does that mean you agree to that proposition?---Beg your
pardon?
Does that mean you agree to that proposition?---Yes, we did. We knew that he was
down - on hard times and we told him not to do it again and we said, “You don’t it
again,” and we gave him a verbal warning at that time and told him that he would be
dismissed if he happened again. He said that he understood that but - the issue with the
fuel was, in our eyes, a lot more cut and dried than what the phones - what the phones
were.
MR DIRCKS: I put it to you that you didn’t say that he’d be dismissed if he did it
again, that you only said, “Just don’t do it again”?---No. I said that I - I said that we
wouldn’t be able to - we wouldn’t employ him, he’d have to look for other
employment. He’d be dismissed.
Can you tell me when - - - ?---Yes, I’ll stay that - I said that he would be dismissed.
Were they your exact words?---Yes.
“You will be dismissed”?---Yes.”78
[71] In fairness to the Applicant, there is consistency between he and Mr Salan to the effect
that Mr Salan indicated it would not be necessary to repay the fuel costs. However, on the
basis of the whole of the evidence given in these proceedings I am unable to accept that Mr
Salan did not issue a verbal warning to Mr Paerau when they spoke about the misuse of the
fuel card. Accordingly I prefer Mr Salan’s evidence in this regard and find that a verbal
warning was given as he contends.
CONSIDERATION
[72] This matter arises as a question of whether or not the dismissal of Mr Paerau was
consistent with the Code. As previously discussed, the test within the Code is of two parts;
whether or not the dismissal in all the circumstances meets the test of “summary dismissal”
or, if not, it meets the test of an “other dismissal”.
[73] Consistency with the Code in respect to the first test has been found by the Full Bench
to be a test firstly of whether or not the employer held a belief that the employee’s conduct
was sufficiently serious to justify immediate dismissal, and secondly a consideration of
whether the belief was based on reasonable grounds. These issues were discussed in detail by
the Full Bench in the matter of John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo79
(Pinawin);
78 Transcript, PN 770 – 778
79 [2012] FWAFB 1359 (as amended)
[2014] FWC 1524
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[27] Deputy President Bartel in Narong Khammaneechan v Nanakhon Pty Ltd ATF
Nanakhon Trading Trust T/A Banana Tree Cafe said:
“[60] At the outset it is appropriate to note that unlike a consideration of the
dismissal of an employee of a business that is not a small business employer,
the function of FWA is not to determine on the evidence whether there was a
valid reason for dismissal. That is, the exercise in the present matter does not
involve a finding on the evidence as to whether the applicant did or did not
steal the money. The application of the Small Business Fair Dismissal Code
involves a determination as to whether there were reasonable grounds on which
the respondent reached the view that the applicant’s conduct was serious
enough to justify immediate dismissal. As such, the determination is to be
based on the knowledge available to the employer at the time of the dismissal,
and necessarily involves an assessment of the reasonableness of the steps taken
by the employer to gather relevant information on which the decision to
dismiss was based.”
[28] Deputy President McCarthy in Harley v Rosecrest Asset Pty Ltd T/A Can Do
International said:
“[8] For an employer to believe on reasonable grounds that the employee’s
conduct is sufficiently serious to justify immediate dismissal, it is firstly
necessary for the employer to establish that the employer did in fact hold the
belief that as a matter of fact that (i) the conduct was by the employee; (ii) the
conduct was serious; and (iii) that the conduct justified immediate dismissal.
This is to be contrasted to the provisions of s.387(a) where FWA, in
determining whether there was a valid reason for the dismissal, must find
whether the conduct in fact occurred.
[9] Secondly, it is necessary for the employer to establish that there are
reasonable grounds for the employer holding the belief. It is thus necessary for
the employer to establish a basis for the belief held which is reasonable. In this
regard it would usually be necessary for the employer to establish what
inquires or investigations were made to support a basis for holding the belief. It
would also ordinarily be expected that the belief held be put to the employee,
even though the grounds for holding it may not be. Failure to make sufficient
inquiries or to put the accusation to the employee in many circumstances might
lead to a view that there were no reasonable grounds for the belief to be held.”
[29] We believe that the approach and observations in these two decisions are
correct. There are two steps in the process of determining whether this aspect of the
Small Business Fair Dismissal Code is satisfied. First, there needs to be a
consideration whether, at the time of dismissal, the employer held a belief that the
employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly
it is necessary to consider whether that belief was based on reasonable grounds. The
second element incorporates the concept that the employer has carried out a reasonable
investigation into the matter. It is not necessary to determine whether the employer
was correct in the belief that it held.
[2014] FWC 1524
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[30] Acting reasonably does not require a single course of action. Different
employers may approach the matter differently and form different conclusions,
perhaps giving more benefit of any doubt, but still be acting reasonably. The
legislation requires a consideration of whether the particular employer, in determining
its course of action in relation to the employee at the time of dismissal, carried out a
reasonable investigation, and reached a reasonable conclusion in all the circumstances.
Those circumstances include the experience and resources of the small business
employer concerned.
[74] In relation to consideration of whether the belief was held on reasonable grounds the
Full Bench in Pinawin found;
[38] Normally in order to hold a belief on reasonable grounds it will be necessary to
have a discussion with the employee about the perceived serious misconduct and pay
regard to the explanations and views given by the employee. We are concerned in this
case that no discussions took place about the implications of Mr Domingo’s conduct
for his future employment. However this is a very unusual case. The employer was
very small. The owners knew Mr Domingo well. They directly observed his
behaviour. They believed that he had made lifestyle choices that involved drug-taking
and this directly related to his capacity to perform his work. His work involved close
personal dealings with clients. At the time they made their decision, Mr Domingo was
hospitalised. They were conscientious in considering the grounds for summary
dismissal in regulatory material available on the internet. In these unusual
circumstances we are of the view that the employer, when considering Mr Domingo’s
recent erratic and unusual behaviour, formed the belief that Mr Domingo had engaged
in conduct that justified immediate dismissal on reasonable grounds. Our conclusion
should not be seen as one that would necessarily be reached in all cases of out of hours
misconduct or drug-taking.80
[75] While Pinawin is clear authority for the proposition that in order to hold a belief on
reasonable grounds for the purposes of the Code, the belief should be tested, save for very
unusual cases through investigation and discussion, that proposition has been developed
further by the Full Bench in Steri-Flow Filtration Systems (Aust) Pty Ltd v Craig Erskine81
which stressed the importance of the circumstances of the conduct and the knowledge of the
investigator and decision-maker. Steri-flow also reinforces the need to bear in mind the size of
the workplace being considered. The decision-maker in that case formed their view from an
investigation they conducted;
[41] Mr Fong’s belief, at the relevant time, that Mr Craig Erskine’s conduct was
sufficiently serious to justify immediate dismissal was based on grounds directly
supported by or reasonably inferential from the investigation he had conducted,
including that he had conducted into the law. It is apparent from the letter of
termination from Mr Fong to Mr Craig Erskine that Mr Fong understood that Mr
Gilbert Erskine had authorised SFT’s use of the SFS property before he resigned from
SFS. There is no sound basis for concluding that further investigation by Mr Fong
would have revealed the grounds for his belief were mistaken. Mr Fong’s investigation
was reasonable, resulting in reasonable grounds for his belief.
80 Ibid., at [38]
81 [2013] FWCFB 1943
[2014] FWC 1524
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[42] With respect, in the circumstances it was not open to the Senior Deputy
President to conclude Mr Fong did not carry out a reasonable investigation. The Senior
Deputy President’s conclusion that Mr Fong did not carry out a reasonable
investigation was critical to his Honour’s failure to be satisfied that the termination of
Mr Craig Erskine’s employment was consistent with the Code. His Honour’s failure to
be so satisfied was therefore affected by error. Given the nature and effect of the error
made by the Senior Deputy President and the issues it has raised about the application
of the Code, we consider it is in the public interest to grant permission to appeal. We
do so. We will deal with Mr Craig Erskine’s unfair dismissal remedy application.82
[76] The nature of the conduct required to be investigated and the course employed to
investigate the conduct will be circumstantial. In the instant matter, the conduct took place on
11 September 2013 and involved, at each stage, Mr Salan. While Mr Butler witnessed certain
parts of the conduct, the conduct on which Rainshield Roofing relies was all directed to, or
only involved Mr Salan.
[77] In the circumstances, and having regard to the need for Rainshield Roofing to hold a
reasonable belief that Mr Paerau’s conduct was sufficiently serious to justify immediate
dismissal, I am satisfied it was reasonable for Mr Salan to form that belief directly from the
conduct he saw and heard on 11 September 2013. This is also an unusual case where the
relevant conduct was all in front of the decision-maker and where there would be no sound
basis for concluding that further investigation by Mr Salan would reveal the grounds for his
belief were mistaken.
[78] The evidence reveals that on 11 September 2013 Mr Paerau was involved in an
incident in which one of four wheels on a trailer he was towing came off the trailer. He only
knew of this because another driver pointed it out to him. There is no evidence that Mr Paerau
saw the wheel come off, or that he knew of the wheel coming off because of changes to the
stability of the vehicle he was driving.
[79] Accepting that there is no evidence before me that this incident was other than
accidental and was not attributable to Mr Paerau’s own actions, I also accept he was no doubt
shocked and distressed as a result. I have found that his telephone call to Mr Salan at about 11
AM was argumentative and that he was abusive and swore within the telephone call.
Nonetheless, I find that the telephone call to Mr Salan was not sufficiently serious to justify
immediate dismissal even within the context of the record of employment Mr Paerau had with
Rainshield Roofing to that point.
[80] I find that the actions of Mr Paerau that followed the 11 AM telephone call
collectively are sufficiently serious to justify immediate dismissal.
[81] When Mr Butler asked some other staff to leave the premises to go to a nearby coffee
shop, I find that this arose out of an apprehension on the part of Mr Butler, and perhaps
others, that they expected, on the basis of his past conduct, that Mr Paerau might come to the
premises and be at least argumentative. I find that Mr Butler’s request for staff to leave is an
unusual step but that it was informed by his knowledge of Mr Paerau’s history of
employment.
82 Ibid., at [41] - [ 42]
[2014] FWC 1524
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[82] When Mr Paerau arrived at the premises he asked to see Mr Salan and was told that
Mr Salan was busy. I find that a reasonable employee would have waited for Mr Salan to
become available. In contrast Mr Paerau insisted on seeing Mr Salan immediately. I find that
this is the first factor of behaviour on the part of Mr Paerau that, together with the other
factors, is conduct sufficiently serious to justify immediate dismissal.
[83] When Mr Paerau saw Mr Salan and spoke with him, he agrees things were heated and
that it was an argument83. I find that Mr Paerau was the provocateur in this argument and that
both Mr Salan and Mr Butler, who was observing the argument, feared for their safety as a
result of Mr Paerau’s demeanour. I find that this is the second factor of behaviour on the part
of Mr Paerau that, together with the other factors, is conduct sufficiently serious to justify
immediate dismissal.
[84] I find that Mr Salan repeatedly asked Mr Paerau to calm down and that he asked Mr
Paerau to leave the office and that this was on more than one occasion84, which Mr Paerau
refused to do until he heard the instruction from Mr Salan to Mr Butler to call the police. I
find that this is the third factor of behaviour on the part of Mr Paerau that, together with the
other factors, is conduct sufficiently serious to justify immediate dismissal.
[85] I find that the three factors referred to above collectively comprise conduct that is
sufficiently serious to justify immediate dismissal.
[86] When Mr Paerau refused to leave the premises, Mr Salan instructed Mr Butler to call
the police and terminated Mr Paerau’s employment. I find that in addition to these matters, Mr
Salan also said to Mr Paerau that he “will get you some money to get a cab” or “I’ll give you
$100 to catch a taxi”. I find that a reasonable person having heard these words upon been
dismissed from a job in which they drove a company provided vehicle, would understand the
words to mean there would be payment made by the employer for them to return home
instead of using the vehicle previously provided by the employer.
[87] Following these statements, I find that Mr Paerau left the premises and moved toward
the company vehicle and that Mr Butler directed him not to take the vehicle. I find that the
Applicant ignored Mr Butler’s direction and left the company’s premises in its vehicle. I find
that Mr Paerau knew the vehicle was not his property and that he no longer had authorisation
to drive it. I find that having taken the company’s vehicle, Mr Paerau refused a request to
return it and would do so only once Mr Salan had agreed to provide an employment
separation certificate and a payslip85.
[88] I find that this factor, in and of itself independent of the three factors referred to above,
is conduct sufficiently serious to justify immediate dismissal.
[89] The circumstances in which the company formed the view that Mr Paerau’s conduct is
sufficiently serious to justify immediate dismissal arose out of a single series of events which
took place on 11 September 2013. The events were directly in front of, and involved, one of
two directors of the employer, Mr Salan.
83 Paerau, op. cit., para 32
84 Transcript, PN 899
85 Transcript, PN 553, 301-302
[2014] FWC 1524
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[90] Rainshield Roofing is entitled to the view that there would be no sound basis for
concluding that further investigation relating to the matters complained of by Mr Paerau
would change the view of Mr Salan that Mr Paerau’s conduct warranted immediate dismissal.
[91] To the extent that Mr Paerau was raising a complaint about the safety of the vehicle
that he was driving, I accept that while there is no evidence that the vehicle at the time
immediately before the incident occurred was unsafe, there may well have been a legitimate
safety complaint to be made to Rainshield Roofing. The evidence includes in relation to this
issue that the trailer was relatively new, that it had recently been serviced, and that once the
incident on 11 September 2013 had occurred, the trailer was left on the side of the road.
[92] Mr Salan’s evidence indicates that he accepts that there may well have been issues that
could have been the subject of discussion. This was a proper and proportionate response by
Rainshield Roofing to what was being agitated by Mr Paerau - that he had been involved in a
serious safety incident; and that it arose out of failings by the company to provide a safe
workplace.
[93] Mr Paerau was given multiple opportunities both within the telephone call at about
11AM on 11 September, and in the discussion with Mr Salan, to calm down and discuss the
issue rationally. He chose not to. It is that conduct which gives rise to conduct sufficiently
serious to justify immediate dismissal. As the decision maker, Mr Salan was entitled to take
into account that Mr Paerau’s behaviour was unacceptable from the time he returned to the
premises on 11 September 2013. He was also entitled to take into account that this was not a
“heat of the moment” event from a trusted employee, but rather an event that caused him and
others to be fearful of their safety, being agitated by an employee who had a history of less
than acceptable performance.
[94] As a result of these factors, I find that Mr Salan’s belief that Mr Paerau’s conduct was
sufficiently serious to justify immediate dismissal was based on reasonable grounds.
CONCLUSION AND ORDERS
[95] After consideration of the foregoing issues, I find that Mr Paerau’s dismissal was
consistent with the Code.
[96] As a result, I now dismiss his application. An order to this effect will be issued in
conjunction with this decision.
COMMISSIONER
E THE FAIR WORK COMMISSION THE SEAL
[2014] FWC 1524
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Appearances:
Mr G Dirks and Mr N Dircks (Paid Agents, Just Relations) for Mr P Paerau
Mr A Vasilaris (Solicitor, Goodman Group Lawyers) for Rainshield Roofing Pty Ltd
Hearing details:
2014.
Melbourne:
7 February 2014
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Price code G, PR548337
