[2011] FWA 3081 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Richard O’Connor
v
Outdoor Creations Pty Ltd
(U2011/5200)
COMMISSIONER GOOLEY |
MELBOURNE, 24 MAY 2011 |
Application for unfair dismissal remedy.
[1] Mr Richard O’Connor (the Applicant) was employed by Outdoor Creations Pty Ltd (the Respondent) from 27 January 2009 until his employment was terminated on 10 February 2011. 1
[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 15 March 2011 but as the Respondent did not wish to participate in the conference, the matter was referred for hearing on 2 May 2011.
[3] Directions were issued on 10 March 2011 for the filing of material at which time the date of the hearing was advised. The Applicant was directed to file and serve submissions and witness statements by 28 March 2011. The Respondent was directed to file and serve submissions and witness statements by 18 April 2011.
[4] The Respondent did not comply with the directions and on 20 April 2011 my associate wrote to the Respondent and advised that if no witness statements and submissions were filed the Respondent would only be able to lead evidence at the hearing with leave of the Tribunal. On 21 April 2011 the Respondent filed some documents however that material was not provided to the Applicant.
[5] The Applicant, having left Australia, requested that he be permitted to participate in the hearing by video link. On 19 April 2010 the Applicant sent an email advising that he would be in Peru at the time of the hearing and requested an adjournment. I declined to grant an adjournment as the Applicant had been on notice from 10 March 2011 of the date of hearing. The Applicant was advised that he could attend the hearing via video link.
[6] On 20 April 2011 the Respondent filed an application for an order seeking that the Applicant attend the hearing in person. I refused to issue this the order as Mr O’Connor was no longer residing in Australia.
[7] Both parties were advised that the matter would proceed on 2 May 2011.
[8] Ms Audrey O’Connor, the Applicant’s sister appeared via Skype for the Applicant and Mr David Kirkpatrick appeared in person for the Respondent.
[9] While witness statements of Ms Olivia Mulvany, Mr Declan Rooney and the Applicant were filed, these witnesses were not available to give evidence and be cross examined. Mr Kirkpatrick did not object to Mr O’Connor’s witness statement being tendered as evidence. Ms O’Connor did not object to the receipt into evidence of documents provided by Mr Kirkpatrick. I have not had any regard to the witness statements of Mr Rooney and Ms Mulvany as they were not available to be cross examined. Mr Kirkpatrick did not file any witness statements and while he stated in his email of 21 April 2011 that he would “follow up on Wednesday with statements from staff” no statements were provided. Ms O’Connor raised no objection to Mr Kirkpatrick making statements from the bar table.
Jurisdiction of Fair Work Australia
[10] There is no dispute that the Applicant is a person who was protected from unfair dismissal. The Respondent is a small business and therefore the Small Business Fair Dismissal Code (the Code) is relevant to this proceeding.
The Evidence
[11] The Applicant was employed as a Landscape Architect with the Respondent from 27 January 2009. 2 The Applicant was a subclass 457 Business (long stay) Visa Holder and his visa was cancelled 28 days after the termination of his employment.
[12] On 17 January 2011 Mr O’Connor gave notice to Mr Kirkpatrick of his resignation. His employment was due to end on 11 February 2011. 3
[13] On 10 February 2011 Mr Kirkpatrick’s wife accessed Mr Kirkpatrick’s work computer. Upon accessing the computer it was discovered that Mr O’Connor had been “streaming on line” when he was supposed to be working. 4
[14] Further, an examination of his email account established that he had been emailing copyrighted plans to an external email address. 5 Further it was alleged that Mr O’Connor had changed the labels on the plans to show that he had designed the plans when he had not.6
[15] It was also alleged that Mr O’Connor had conducted consultations with clients under the Respondent’s name without the Respondent’s knowledge and had contacted clients and arranged to have photos taken of gardens he had worked on and forwarded those photos to an external email address. 7
[16] In the letter of termination Mr Kirkpatrick said as follows:
“In the last three weeks I notice a serious decline in your productivity and in the last three days I became particularly suspicious of what you were up to by your action in the office.
I had suspicion without seeking tangible evidence that you may have been contacting past clients and asked you if you had. To which you clearly stated that you had been in touch with two only.
Tonight I have gone through your records and found that for the last three months alone, you have recorded over 3000 transactions on a chat line during work time. This amounts to an enormous amount of time, done in this office during time you were being paid to undertake your role as a landscape architect. In effect you have been accepting wages and not undertaking the work but instead engaging in personal activities.
I then found that in fact you were not truthful and have been in contact with a number of clients requesting photographs, and worse still, in some emails were derogatory toward myself.
To add this you have, it now turns out, you have been removing, illicitly material from this office.
I will be seeking legal advice as to the nature of these actions.
This afternoon you refused to return the properly of ODC namely a $1200 mobile phone.
If the phone is not returned to the office by registered padded mail and in the same condition as it was taken, I will be reporting the theft of the phone to the police on Monday.
It is extremely unfortunately that someone who is in some respects appears a good person, has allowed yourself to breach the trust placed in you to this extent and to slide down such a cascade of lack of integrity; to the point where you have in effect, justified to yourself, the theft of hundreds, if not thousands of dollars worth of paid time from this office. (This is yet to be accurately assessed) and dishonestly removed material, the property of ODC and Richard, choosing this path as you have, there will be consequences.” 8
[17] This appears to have been the letter of termination. It was headed: “FW: re your early termination.” 9
[18] Mr O’Connor denied using the chat line to the extent alleged by Mr Kirkpatrick. It was his evidence that since he opened his gmail account in 2006 his records clearly stated that he had recorded 3061 chats in a 5.5 year span. He also says that he “rarely spent over 20 minutes chatting on any given working day.” Further, Mr O’Connor said that given he did not take his full lunch break he saved the Respondent both time and money by working through his lunch break. 10
[19] Neither Mr O’Connor nor Mr Kirkpatrick produced any independent evidence to support their contentions about the use by Mr O’Connor of the internet during working hours.
[20] Mr O’Connor denied removing the Respondent’s property without consent. He said he discussed with Mr Kirkpatrick about arranging for professional photos to be taken of gardens he had worked on. He said the photos were shown to Mr Kirkpatrick. He further said that he told Mr Kirkpatrick that he was going to contact past clients to arrange for the photographs to be taken and that Mr Kirkpatrick had no issue with this. Mr O’Connor denied taking any photographs which had been paid for by the Respondent. 11
[21] There was no evidence that any physical photographs were removed from the office. It is clear that photographs were solicited and sent to an external email address. The photos were not the property of the Respondent. Mr Kirkpatrick accepted during the hearing that there is nothing wrong with a landscape architect taking photos of work performed to include in his or her portfolio. 12
[22] There is no dispute that Mr O’Connor sent plans to an external email address. These plans were the property of the Respondent. Mr O’Connor subsequently, by email, advised that he did this with the consent of Mr Kirkpatrick. He also denied that he had changed the plans to show that he had designed the plans when he had not. However as Mr O’Connor did not attend the hearing this evidence could not be tested.
[23] Mr O’Connor said he did not refuse to return the phone. He said that on the Thursday prior to the termination of his employment Mrs Kirkpatrick had asked when he was going to return the phone and he asked if he could keep it for another week. Mr O’Connor said she agreed. In any event Mr O’Connor returned the phone on the Friday.
[24] Mr O’Connor denied performing work that he was not supposed to perform. He said that the work he was alleged to have performed for Ms Mulvany was done as a personal favour for her and she was not charged for the work. He accepted he should not have used his work email address to communicate with Ms Mulvany.
[25] Mr O’Connor attended work on the 11 February 2011. He met Mr Kirkpatrick who said “I have nothing further to say to you.” Mr O’Connor returned the phone and other property belonging to the Respondent.
[26] Mr Kirkpatrick did not discuss any of these allegations with Mr O’Connor. Mr O’Connor was not provided with an opportunity to respond to the allegations.
The Code
[27] It was not contested that the Respondent was a small business.
[28] The Code provides as follows:
“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 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.”
[29] This was a summary dismissal as the Applicant was not given notice of termination.
Findings
[30] I accept the evidence of Mr Kirkpatrick that on 10 February 2011 he found what he considered was evidence of serious misconduct by Mr O’Connor.
[31] In this case Mr Kirkpatrick described Mr O’Connor’s use of the chat line as “theft”. However there was no evidence about how long or at what times Mr O’Connor used the chat line. Mr O’Connor submitted that Mr Kirkpatrick misread the information on the gmail account and therefore overestimated the amount of time he spent on the chat line. Further Mr O’Connor submitted that he used the chat line during his lunch breaks. However Mr O’Connor did not produce any records of his gmail account which showed his use of the chat line. Presumably if, as he submitted, his gmail account showed that he had recorded 3061 chats in 5.5 years, actual records could have been produced to Fair Work Australia.
[32] There was no evidence, that prior to Mr O’Connor giving his notice of resignation, Mr O’Connor’s use of the internet had any impact on his work. Mr Kirkpatrick did not deny Mr O’Connor’s evidence that he attempted to convince him to withdraw his resignation and continue working with the company. Mr Kirkpatrick had, at the time of Mr O’Connor’s resignation, no issues with Mr O’Connor’s work performance. Mr Kirkpatrick did not question Mr O’Connor’s evidence that he worked through lunch breaks and whilst on the way to and from work. Mr Kirkpatrick’s letter of termination stated the deterioration in Mr O’Connor’s work ethic only occurred in the three weeks after he had given his notice of resignation.
[33] I do not accept that at the time of the termination of Mr O’Connor’s employment the Respondent had reasonable grounds for believing that Mr O’Connor was guilty of serious misconduct by using the chat line during working hours.
[34] I do not accept that arranging to have photos taken of work performed constitutes serious misconduct. Further Mr Kirkpatrick acknowledged that he had some knowledge that Mr O’Connor had arranged for photos to be taken albeit after the event. 13 He did not advise Mr O’Connor at that time, that doing this without his consent, was serious misconduct.
[35] Mr Kirkpatrick alleged the taking the copyrighted plans constitutes theft or at least a breach of copyright. Taking by an employee of an employer’s intellectual property to use for their own or other’s gain may constitute serious misconduct. Mr Kirkpatrick advised that he went to the police about this who advised him that this was a civil matter. 14
[36] This allegation was not put to Mr O’Connor in the email terminating his employment and was raised for the first time at the hearing. No notice of the allegation was given to Mr O’Connor. While Mr O’Connor denied the allegation, due to his failure to attend the hearing, this denial could not be tested.
[37] I agree with the comments of Ashbury C 15 and consider that they have application in this matter:
“I am also of the view that Jokar did not have reasonable grounds to believe that Mr Said was guilty of theft. Although the Code does not require that a person dismissed for serious misconduct be given warnings or an opportunity to respond to warnings, the reference to the employer having reasonable grounds for believing that an employee has engaged in serious misconduct, may require some discussion of allegations with the employee. This is particularly so in circumstances where the facts the employer relies on are in question or capable of some other explanation.”
[38] Mr Kirkpatrick made no attempt to investigate his allegations. He “was outraged at the level of theft that [he] determined was going on” and decided to terminate Mr O’Connor’s employment without notice.
[39] I do not consider that at the time of dismissing Mr O’Connor that Mr Kirkpatrick had reasonable grounds for believing that Mr O’Connor’s conduct was serious misconduct. Therefore I find that the dismissal was not consistent with the Code.
[40] In light of this finding it is necessary to determine if the termination of employment was harsh, unjust or unreasonable.
[41] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:
s387(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);
[42] Excessive use of social media during work hours may constitute a valid reason for the termination of employment as may the misuse of an employer’s intellectual property.
[43] However there is insufficient material before the Tribunal to determine if Mr O’Connor did use social media excessively during working hours. Mr O’Connor did not deny using social media however he denied using it excessively and denied using it during working hours.
[44] Mr O’Connor did not deny forwarding his employer’s intellectual property to an external email address however there is no evidence that Mr O’Connor misused his employer’s intellectual property. The mere sending of the plans to an external email address without more is not a valid reason for the dismissal.
[45] The alteration of the plans to suggest that Mr O’Connor designed a garden that he did not design, if proved, would be dishonest.
[46] In Edwards v Giudice 16 the Full Court of the Federal Court upheld the decision of the Full Bench that if the reason for the termination of employment is based on misconduct of the employee it must be determined that the conduct occurred.17
[47] The allegation that Mr O’Connor had altered plans was raised for the first time at the hearing. No objection to this being raised at this late date was made by Mr O’Connor’s representative. Had Mr O’Connor been at the hearing he could have replied to the allegation. However he chose not to attend the hearing despite knowing well in advance of the date of the hearing. While Mr O’Connor denied these allegations in a subsequent email I have not had regard to that denial. However Mr Kirkpatrick did no more than assert that the plans had been altered. He did not produce the original plans to support this allegation. Consequently there is insufficient evidence before Fair Work Australia to determine that Mr O’Connor in fact falsified plans.
[48] I therefore find that there was no valid reason for the termination of Mr O’Connor’s employment.
s387(b) whether O’Connor was notified of that reason;
[49] Mr O’Connor was not notified of the reason for the termination of his employment prior to the decision to terminate his employment.
s387(c) whether O’Connor was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[50] Mr O’Connor was not given any opportunity to respond to the reasons for the termination of his employment.
s387(d) any unreasonable refusal by the employer to allow O’Connor to have a support person present to assist at any discussions relating to dismissal;
[51] No discussion took place.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether O’Connor had been warned about that unsatisfactory performance before the dismissal;
[52] Mr O’Connor received no warning about his conduct or performance.
s387(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
[53] This is a small business. It does not appear that Mr Kirkpatrick gave any thought to his obligations to ensure that any dismissal was consistent with the Code.
s387(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;
[54] There was no dedicated human resource management specialists or expertise in the business and this impacted on the procedures followed.
s387(h) any other matters that FWA considers relevant.
[55] Mr O’Connor had tendered his resignation and was due to finish work on 11 February 2011.
Conclusion
[56] While the misuse of an employer’s intellectual property and excessive use of the internet for personal purposes may constitute misconduct there is insufficient evidence to establish that Mr O’Connor was in fact guilty of misconduct. Mr Kirkpatrick did not put any of his allegations to Mr O’Connor and gave him no opportunity to respond. While I appreciate that Mr Kirkpatrick, having detected what he considered was misuse of the computer system, did not want to allow Mr O’Connor further access to the computer system, he could have held a meeting with Mr O’Connor prior to him commencing work and put his allegations to Mr O’Connor and provided him with an opportunity to respond.
[57] I find in all the circumstances that the termination of Mr O’Connor’s employment was harsh, unjust or unreasonable and therefore he was unfairly dismissed.
Remedy
[58] Section 390 of the FW Act empowers Fair Work Australia to order a remedy if an employee is unfairly dismissed:
“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.”
[59] Mr O’Connor is not seeking reinstatement.
[60] Section 392 of the FW Act sets out the criteria for determining the amount of compensation in lieu of reinstatement as follows:
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;
[61] No submissions were made on this criteria.
(b) the length of the person’s service with the employer;
[62] Mr O’Connor had been employed for just over two years.
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;
[63] Mr O’Connor would have received an additional day’s pay had he not been unfairly dismissed as 11 February 2011 was his last day of work.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;
[64] Mr O’Connor had no opportunity to mitigate his loss.
(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;
[65] This is not a relevant criteria.
(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;
[66] This is not a relevant criteria.
s392 (g) any other matter that FWA considers relevant.
[67] Mr O’Connor claims to be owed annual leave not paid on termination. However he has not provided any details of the amounts not paid.
Conclusion
[68] While I have found that Mr O’Connor was unfairly dismissed, Mr O’Connor’s employment would have ended on 11 February 2011. Mr O’Connor has therefore suffered a loss of one day’s pay which is $171.00. I will therefore order that the Respondent pay Mr O’Connor, within 14 days, $171.00 less applicable taxation. An order to that effect will issue with this decision.
[69] I accept that but for the termination of his employment on 10 February 2011 Mr O’Connor would have been paid any accrued annual leave. Further the Respondent was not entitled to withhold any amount owed to Mr O’Connor for accrued leave. However, as no evidence was provided to Fair Work Australia to substantiate this claim I decline to issue any orders in respect of outstanding annual leave.
COMMISSIONER
Appearances:
Ms A O’Connor for the Applicant.
Mr D Kirkpatrick for the Respondent.
Hearing details:
2011.
May 2:
Melbourne.
1 Exhibit A2
2 Ibid at [2]
3 Ibid
4 Transcript PN 64
5 Ibid PN 65
6 Ibid PN 67
7 Ibid PN 65-67
8 Form F2 attachment
9 ibid
10 Exhibit A2
11 Exhibit A2
12 Transcript PN 106
13 Ibid PN 106
14 Ibid PN 120
15 Mr Troy Andrew Said v Jokar Holdings Pty Ltd [2011] FWA 977 at [43]
16 169 ALR 89
17 Ibid at [4]
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