[2011] FWA 3698 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Steven Pietraszek
v
Transpacific Industries Pty Ltd T/A Transpacific Cleanaway
(U2011/3046)
COMMISSIONER WILLIAMS |
PERTH, 28 JUNE 2011 |
s.394 - Application for unfair dismissal remedy.
[1] This matter is an application made by Mr Pietraszek (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) asserting that his dismissal by the Respondent Transpacific Industries Pty Ltd trading as Transpacific Cleanaway (Cleanaway) was unfair.
[2] Mr Pietraszek commenced employment with Cleanaway on 30 January 2006 as a Front Lift Driver.
[3] Cleanaway as part of its operations provides recycling and waste collection services for small and large businesses and local government authorities.
[4] These services are provided to many of Cleanaway’s clients 7 days a week and the business operates 365 days of the year necessitating some work on weekends and public holidays.
[5] In December 2010 Mr Martin Engel, Operations Manager Commercial and Industrial Waste (Perth Metro) for Cleanaway spoke with Mr Pietraszek regarding Mr Pietraszek being required to work the Christmas and Boxing Day public holidays. Later that month Mr Heath McPherson, Leading Hand also discussed this issue with Mr Pietraszek as did Mr Sam Keene, Operations Supervisor Commercial and Industrial Waste (Perth Metro).
[6] There is some disagreement about the details of these conversations but it was clear towards the end of December that the Applicant was intending not to work Christmas Day or Boxing Day.
[7] Mr Pietraszek did not attend for work on the Christmas Day and Boxing Day public holidays.
[8] Following disciplinary interviews in early January 2011 Cleanaway concluded that Mr Pietraszek’s conduct was wilful in failing to follow a reasonable and lawful direction to attend for work on Christmas Day and Boxing Day. As a consequence of this Mr Pietraszek’s was summarily dismissed on 4 January 2011 by the Respondent.
[9] At the hearing Mr Pietraszek was represented by Mr Dzieciol from the Transport Workers Union. Mr Pietraszek gave evidence as did Mr Phillip Burke who is a truck driver with Cleanaway and is also the TWU delegate. In addition a witness statement was tendered from Mr Burton an Organizer from the TWU. The Respondent did not seek to cross examine Mr Burton.
[10] Cleanaway was represented by Mr Small. Evidence was given by Mr Engel, Mr Keene and Mr Grayson, Operations Supervisor.
The Applicants case
[11] The Applicant submits the central issues are whether:
a) in all of the circumstances it was reasonable for the Applicant not to work on the Christmas and Boxing Day public holidays in December 2010, and
b) even if the Applicant did not have a reasonable excuse for not working on these days, did his refusal to work warrant dismissal
[12] The Applicant does not deny that he did not attend at work on the public holidays in question. However, it is submitted that it was reasonable for him to refuse to work those Public Holidays, in the circumstances because:
a) In or about mid 2009, the Applicant requested, and was given a transfer to another position so that he would not have to work weekends or public holidays;
b) At the time of that transfer he was advised by the Respondent that in his then new position he did not have to work on public holidays;
c) The Applicant's wife has a medical condition as a result of which she cannot be left alone for any extended period of time, it is for that reason that the Applicant requested the transfer above;
d) Prior to January 2011 the Applicant had not worked on a Public Holiday for in excess of 12 months;
e) The Applicant had informed the Respondent some time before Christmas that he was not available to work on those public holidays; and
f) The Respondent employs quite a number of Truck Drivers and it had ample time to get another Truck Driver to work on those Public Holidays.
[13] Having regard for the matters above, the Applicant could not have reasonably expected that the Respondent may request him to work on the Christmas and Boxing Day public holidays.
[14] Even if it was considered that the refusal by the Applicant to work the Christmas and Boxing Day Public Holidays was not reasonable, then, in all of the circumstances the penalty of dismissal was extremely harsh, unjust and/or unreasonable.
[15] The Applicant had been employed by the Respondent for nearly five years, and until this incident, the Applicant had only received one written warning relating to his conduct and one verbal warning. Neither of those warnings related to conduct of a similar nature to the conduct for which he was dismissed.
[16] In late December 2010 Mr Engel informed the Applicant that he would receive a written warning if he did not work on the Public Holidays over the Christmas/New Year period. Following that TWU Organiser, Rick Burton, had a discussion about the matter with a manger that is senior to the Operations Manager, and the Senior Manager, Peter Reddish, agreed that a written warning was not appropriate in those circumstances.
[17] At no time was the Applicant informed by the Respondent that it was considering terminating his employment, and he was not given an adequate opportunity to explain why he should not be dismissed.
[18] At a meeting held on 29 December 2010 the Applicant informed Mr Engel that he was willing to work some weekends and public holidays. Further, the Applicant did in fact work on the New Year's Day Public Holiday in January 2011, and so confirmed his willingness to work on Public Holidays in the future.
[19] In this instance there was no valid reason for the dismissal of the Applicant. This was because working on public holidays was not within the scope of the Applicant's usual duties, and therefore it was reasonable for the Applicant to refuse to work on the Christmas and Boxing Day public holiday.
[20] The Applicant was summarily dismissed. The circumstances in which summary dismissal are justified are well known. The conduct must amount to "serious misconduct", that is, it must be so serious that it goes to the heart of the employment contract. A failure by an employee to work a Public Holiday when he had informed the employer some time before the Public Holiday that he was not able to work on that day, does not amount to "serious misconduct".
[21] The dismissal of the Applicant, and in particular summary dismissal, is harsh, as it out of all proportion to the alleged misconduct of the Applicant. It is clear that this was a “one off”, occurrence on the part of a longstanding employee, with an otherwise reasonable employment record.
The Respondent’s case
[22] The Respondents industry is one where there are requirements that operators of specific vehicle types and systems are needed to provide services to clients on weekends and public holidays. Employees are aware of the requirements of the position at the time of engagement.
[23] In December 2009 Mr Pietraszek was transferred from his role as a Front Lift driver across into the HIAB system. It was made clear to Mr Pietraszek that when moving to the HIAB system that he would not be a dedicated HIAB Driver but that he would be designated as a 'floater'. A 'floater' is someone who is able to operate different systems such as Hook Lift, Rear Lift systems etc on an as required basis.
[24] The Respondent submits the facts are that on 10 December 2010, Mr Engel, spoke with Mr Pietrasek, informing him that he would be required to work the Christmas and Boxing Day public holidays, to which he responded "yes, ok".
[25] In the course of those discussions Mr Pietraszek proposed that Mr Engel conduct a toolbox meeting to discuss the issue of rostering of employees over the public holidays. Mr Engel dismissed the suggestion noting that all other affected employees were aware of the requirement to be available to work on public holidays.
[26] On 17 December 2010, Mr McPherson asked Mr Pietraszek if he was aware that he would be required to work on the Christmas Day and Boxing Day public holidays. Mr Pietraszek said he was unavailable and that the office knew that he wouldn't work public holidays at all.
[27] On 17 December 2010, Mr Engel again spoke with Mr Pietraszek regarding the requirement for him to work on the Christmas Day and Boxing Day public holidays. Mr Pietraszek informed Mr Engel that he would not be working on the public holidays claiming that his previous responses to Mr Engel only reflected his agreement to discuss the matter. Mr Pietraszek did not advance any reason for his refusal to make himself available to work.
[28] On 23 December 2010, Mr Keene approached Mr Pietraszek regarding Mr Pietraszek's stated refusal to work the Christmas and Boxing Day public holidays.
[29] Mr Keene asked Mr Pietraszek to clarify if he would be attending for work as requested on the Christmas and Boxing Day public holidays. Mr Pietraszek's response was "No, mate I definitely will not be here, I told Marty I wouldn't be here and I'm going to the union about it".
[30] Mr Keene continued to inform Mr Pietraszek that "considering our business we feel it's a reasonable request". Mr Pietraszek replied "I don't care mate, I will not be here". Mr Pietraszek was then asked if he had a reason for not being at work, Mr Pietraszek replied "Nah mate, I don't need one, I have plans".
[31] Mr Pietraszek did not attend for work on the Christmas Day and Boxing Day public holidays.
[32] It was concluded that Mr Pietraszek's conduct was wilful in failing to follow a reasonable and lawful direction and in his continued refusal to offer any explanation for his refusal to work.
[33] Following disciplinary interviews Mr Pietraszek's employment was summarily terminated on 4 January 2011.
[34] The Fair Work Act 2009 (Cth) (the 'Act') at section 114(2) states that "an employer may request an employee to work on a public holiday if the request is reasonable".
[35] Section 114(3) of the Act states that “if an employer requests an employee to work on a public holiday, the employee may refuse the request if the request is not reasonable or the refusal is reasonable”.
[36] Section 114(4) of the Act states in determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
[37] Cleanaway fully considered section 114(4) of the Act and submits that, the request for Mr Pietraszek to work on a public holiday was reasonable based upon the following considerations.
[38] Cleanaway operates within the waste collection industry and in order to meet contractual obligations it is a requirement that it services its customers on weekends and public holidays.
[39] Mr Pietraszek did not disclose to Mr Engel, Mr Keene, or Mr McPherson during the course of their discussions with him that his refusal to work on the Christmas and Boxing Day public holidays was in any way related to family responsibilities.
[40] When directly asked for an explanation by Mr Keene as to why he was refusing to work the public holidays Mr Pietraszek stated “Nah mate, I don't need one, I have plans”
[41] Mr Pietraszek's role was that of a "floater". When transferring Mr Pietraszek to this position Mr Engel informed Mr Pietraszek that if he was engaged on a system that was required to work when a public holiday occurred, he would be required to work the public holiday.
[42] Mr Pietraszek would be entitled to be remunerated at the penalty rates applicable to working on the nominated public holidays.
[43] Mr Pietraszek was a full-time employee.
[44] Mr Pietraszek was informed of the requirement to work on the Christmas Day and Boxing Day public holidays on 10 December 2010, over 2 weeks prior to the public holiday occurring.
[45] Mr Pietraszek informed Mr Engel on 17th December, one week before the public holidays that he would not be working. Mr Pietraszek failed to provide any explanation for his refusal.
[46] Cleanaway submits that Mr Pietraszek wilfully sought to defy the
Respondents lawful and reasonable instruction that he be available to work on the public holidays.
[47] Mr Pietraszek consistently refused to provide a valid reason for his refusal to work the public holidays as requested, or in fact any substantive reason whatsoever, other than to state that Cleanaway could not require him to work on public holidays.
[48] Mr Pietraszek insisted that he was under no obligation to provide any explanation as to the basis of his refusal to work on the public holidays as requested.
[49] The Christmas Day and Boxing Day public holidays were days that Mr Pietraszek would normally be required to work being the Monday and Tuesday respectively had they not been declared public holidays.
[50] Cleanaway acknowledges Mr Pietraszek's right to refuse to work on a public holiday where a valid reason exists. In the event that Mr Pietraszek had requested that he be excused from working on the public holidays because of family responsibilities Mr Pietraszek would have been afforded every consideration.
[51] In the past where employees have come forward and provided valid reasons for their unavailability to work on public holidays alternative arrangements have been mutually put in place.
[52] It was Mr Pietraszek's conduct and the manner in which Mr Pietraszek defiantly and deliberately conveyed his refusal to work on a public holiday in response to a reasonable request from Cleanaway that resulted in the termination of Mr Pietraszek's employment.
[53] This was compounded by Mr Pietraszek's repeated refusal to provide any reasonable explanation for his refusal to work.
[54] With respect to procedural fairness Mr Pietraszek was informed on 29 December 2010 that he was required to attend a disciplinary interview related to his refusal to present for work on the Christmas and Boxing Day public holidays as requested. Mr Pietraszek was advised of his entitlement to have a support person in attendance at that meeting. Mr Pietraszek availed himself of the opportunity to have a support person accompany him to the interview being the Union delegate Mr Phillip Burke.
[55] At the outset of the interview Mr Pietraszek was informed of Cleanaway's concerns over his refusal to work the public holidays. Mr Pietraszek was provided with ample opportunity to respond to the claims against him.
[56] When Mr Pietraszek was directly questioned as to why he had refused to work on the public holidays his initial response was to state that he did not have to work on public holidays. When it was pointed out to Mr Pietraszek that he had previously worked on public holidays, and therefore obviously understood the servicing requirements of the business, he acknowledged that to be the case.
[57] The only explanation eventually afforded by Mr Pietraszek as to his refusal to work was to the effect that his wife did not have a licence and that he wanted to get her out of the house as much as possible.
[58] Mr Pietraszek was informed by Mr Engel during the disciplinary interview on 29 December 2010 that a possible outcome may include termination of his employment.
[59] When questioned as to what his position was in future to the working of public holidays Mr Pietraszek responded that if that was what it would take to keep his job he could work some public holidays depending on his availability at the time.
[60] After the meeting, Mr Engel considered Mr Pietraszek's responses and consulted with the Human Resources Department. It was Cleanaway's view that Mr Pietraszek's conduct and the manner in which Mr Pietraszek defiantly and deliberately conveyed his refusal to work on a public holiday in response to what Cleanaway considered to be a reasonable request constituted serious misconduct and justified the termination of Mr Pietraszek's employment.
[61] A further disciplinary interview was conducted with Mr Pietraszek on 4 January 2011 where Mr Pietraszek again had the Union delegate present as his support person. At that meeting Mr Pietraszek was informed that he was to be terminated for serious misconduct.
[62] Whilst Mr Pietraszek's previous employment history was not a substantive factor in Mr Pietraszek's termination it is a matter of record that Mr Pietraszek's employment history was less than reasonable. As well as counseling on a number of occasions Mr Pietraszek received three (3) verbal warnings and a formal written warning during his employment with Cleanaway for various incidents that he was involved in.
[63] It is alleged in the statement submitted by Mr Rick Burton that he had met with and spoken to Mr Peter Reddish, Operations Manager - Municipal, and Mr Keene in December 2010 regarding Mr Pietraszek's refusal to work on the Christmas and Boxing Day public holidays and that it was conveyed by him that the issuing of a written warning to Mr Pietraszek was not appropriate.
[64] Cleanaway submit that Mr Reddish and Mr Keene do not recall having entertained such a conversation with Mr Burton regarding the matter. Furthermore Mr Keene states that he has not at any time met Mr Burton. Mr Reddish is not senior to Mr Engel as cited in Mr Pietraszek's outline of submissions; they are of the same management level. Mr Reddish is responsible for the Municipal Waste division of the business within Perth Metro whilst Mr Engel is responsible for the Commercial and Industrial Waste division within Perth Metro.
[65] It would be unusual, as well as most inappropriate, for a Manager from a different section of the business to speak with the Union regarding an employee that did not report to them.
[66] Mr Pietraszek's employment was terminated on the grounds of serious misconduct, for failing to follow a reasonable and lawful request and the manner in which he repeatedly failed to comply with such reasonable request. Behaviour that Cleanaway views as willful and defiant by Mr Pietraszek and behaviour that is considered to be inconsistent with the continuation of his employment contract, giving rise to a valid reason for termination.
[67] Cleanaway believes that in all the circumstances the dismissal of Mr Pietraszek is neither harsh, unjust nor unreasonable.
Consideration
[68] Cleanaway says it was the Applicant's refusal to work public holidays when directed that was the reason for the dismissal. Although I am not required to make a determination in terms of the requirements of section 114 of the Act, section 114 does provide a useful, but not exhaustive list of considerations that are relevant in this case. The section is set out below.
s. 114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.
(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
(4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
(b) the employee’s personal circumstances, including family responsibilities;
(c) whether the employee could reasonably expect that the employer might request work on the public holiday;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
(e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
(f) the amount of notice in advance of the public holiday given by the employer when making the request;
(g) in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;
(h) any other relevant matter.
[69] Section 114 provides that employees are entitled to be absent from work on a public holiday however an employer may request an employee to work if the request is reasonable. But the employee may refuse that request if their refusal to work on that public holiday is reasonable.
The Respondent’s request for the Applicant to work public holidays
[70] Considering whether the employers request for the Applicant to work on the public holidays was reasonable, I accept that the waste collection operations of the Respondent necessarily operate seven days a week and on every day of the year and that the Respondent is contractually required to provide services on all days of the year including public holidays.
[71] I find that the work performed by the Applicant is at times necessarily carried out on public holidays.
[72] The Applicant was employed on a full-time basis.
[73] The employer gave approximately 3 weeks notice in advance to the Applicant that they required him to work on the public holidays.
[74] Considering these facts I agree that the employer's request to the Applicant that he work on the Christmas Day and Boxing Day public holidays was reasonable.
The Applicant’s refusal to work public holidays
[75] The Applicant argues that there are a number of matters that support a conclusion that his refusal of the Respondent’s request that he work on the two public holidays was reasonable. I will consider these matters in turn below.
[76] The Applicant submits that his family responsibilities, specifically his wife's health, her lack of a driving licence and the need for him to be available over public holidays to ensure she could spend time out of the house were reasons why his refusal to work the public holidays was reasonable. I accept the Applicant's evidence on these matters and agree that this supports a conclusion that his refusal was reasonable.
[77] The Applicant also submits that it was not reasonable to expect that the Respondent would request him to work the public holidays because his understanding was that in the HIAB system weekends and public holidays were not normally worked and because he had not worked public holidays in the past for up to 12 months.
[78] Again I accept the Applicant's evidence on these matters, noting that the evidence of the Respondent’s witnesses, which I also accept, is that the Applicant’s beliefs regarding the requirements that existed in the HIAB system were incorrect. I accept the Applicant genuinely had these understandings, even though they were incorrect, and so at least initially (prior to the 10 December 2010 meeting with Mr Engels) he would not have expected the Respondent to request him to work the public holidays.
[79] The discussion with Mr Engel on 10 December 2009 put the Applicant on notice that they expected him to work the public holidays and so I do not accept that he received an unreasonably short period of notice from the Respondent.
[80] The Applicant says he had made plans to spend the public holidays with his wife away from the city. Those plans had been made approximately 6 months prior to the public holidays occurring. The Applicant made those plans in part based on his belief that the area in which he was working was one where he was not required to work public holidays. This erroneous belief had been reinforced by the fact that he had not been required to work public holidays at all for approximately 12 months. These personal circumstances do support a conclusion that his refusal to work the public holidays was reasonable.
[81] The Applicant did give the Respondent an adequate amount of advance notice that he was refusing the request that he work the public holiday. I find however that the Respondent was at times unclear as to the Applicant’s willingness or not to work on the public holidays and in practice this meant they received a relatively short period of notice that he was refusing their request.
[82] Importantly the evidence is that some of these matters that support a conclusion that the Applicant’s refusal to work the public holidays was reasonable were not clearly explained to the Respondent by the Applicant.
[83] The Applicant did not clearly explain his understanding that he was not required to work public holidays and why he believed this was the case. Neither did he fully explain what his family responsibilities were, nor that months earlier he had made plans to be out of the city on the public holidays based on his understanding that he did not have to work public holidays. Whilst some elements of these matters where touched on in comments he made he never fully explained his situation and his reasoning even at the disciplinary interview on 29 December 2010. 1
[84] If he had clearly explained these issues to the Respondent it is possible that they may have approached this matter differently. Instead the Applicant did not fully explain why he was rejecting the Respondent's requests for him to work a public holiday.
[85] Where an employee does have good reasons for refusing their employers request to work on a public holiday, but does not explain those reasons to the employer, I do not believe it can be said that the refusal by the employee to work the public holiday is reasonable.
[86] In the circumstances here if the Applicant had fully explained to the Respondent all of the reasons why he was refusing their request for him to work the public holidays then I would view his refusal as reasonable. However he did not fully explain why he was refusing the request and considering all of these matters I do not accept the Applicant's refusal to work the two public holidays was a reasonable refusal.
[87] As explained previously whilst the provisions of section 114 provide a useful set of considerations there are other relevant matters in this instance that need to be considered.
[88] One such matter is the Applicant's evidence, which I accept, that he had advised the Respondent in late November 2010 that he would not be available to work the public holiday and this advice to the Respondent was given before the employer had requested that he work the public holidays. 2
[89] With respect to the 17 December 2010 meeting between Mr Engel and the Applicant, accepting the evidence of both individuals, I find that what occurred was that Mr Engel, after the meeting, believed the Applicant had agreed to work the two public holidays but unfortunately the Applicant left the same meeting believing he had only confirmed that he understood the company wanted him to work the days and believed the issue would be discussed further at a toolbox meeting of other employees. 3 Regrettably there was a genuine misunderstanding between the two from this meeting.
[90] With respect to the meeting on 23 December 2010 I find that whilst it was made plain to the Applicant that if he did not work the public holidays as requested there would be disciplinary action taken there is no evidence it was specifically said that his refusal could lead to the termination of his employment. 4 The Applicants understanding that Mr Engel’s reference to disciplinary action was only to a formal warning was reasonably held.
The legislation
[91] Section 387 lists matters the tribunal must consider when deciding whether a dismissal is harsh unjust or unreasonable.
s.387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
Valid reason?
[92] In all the circumstances here I find that the Respondent had made a reasonable request for the Applicant to work the public holidays. I also find that the Applicant had good reasons to refuse that request to work those days including his family responsibilities, his genuinely held but incorrect understanding of the requirements of him in the HIAB system and the fact that well in advance of the Respondents request he had made arrangement to be out of the city on the understanding that he would not be working those days. However these matters were never fully and clearly explained to the Respondent by the Applicant.
[93] From the perspective of the Respondent at the time of the dismissal I accept the Applicant’s refusal to work the days as requested without any reasonable excuse seemed to be a valid reason for the dismissal.
[94] However the test the tribunal is required to apply is not limited to whether the employer had reasonable grounds, on the facts at the relevant time, for dismissing the Applicant. 5
[95] Further as has been previously held it is not sufficient for an employer to simply show that they acted in the belief that the termination was for a valid reason. 6
[96] The question is not whether the Respondent on reasonable grounds at the time of the dismissal believed there was a valid reason for dismissal but rather whether on the evidence in the proceedings before the tribunal it is shown that there was a valid reason for the dismissal. 7
[97] Considering all the evidence in this matter I find that the Applicant did have good reasons for his refusal to work the public holidays when he was requested to do so by the Respondent and therefore there was not a valid reason for the Applicants dismissal.
[98] Given the finding that there was no valid reason for the dismissal Subsections 387 (b), (c) and (e) are not relevant.
[99] The Respondent did not refuse to allow the Applicant to have a support person present at any discussion.
[100] The procedures followed where consistent with the employer’s size and the existence of human resource specialist.
Other matters
[101] The Applicant had been employed for five years and throughout that time the evidence is he had received only one formal verbal warning.
[102] The Respondent raised a number of at fault incidents in order to demonstrate some negatives in the work history of the Applicant. Very little evidence was put in support of these matters and there was contrary evidence from the Applicant and also from Mr Burke regarding some of the instances the Respondent raises. Notably the evidence of Mr Engel was that the reason he chose to move the Applicant into the HIAB system was to avoid further incidents involving the Applicant. This would strongly suggest that whatever at fault incidents there had been prior to being moved into the HIAB system the Respondent did not view these as being particularly serious given they chose to simply relocate him rather than formally discipline him or dismiss him.
[103] Overall my conclusion is that the Applicant had a sound but not perfect work record with the Respondent prior to his dismissal.
[104] Another matter that needs to be taken into account is that at the disciplinary meeting on the 29 December 2010 the Applicant told the Respondent that if it was necessary for him to work weekends or public holidays to keep his job he was willing to do so but this was subject to any caring responsibilities he may have with respect to his wife.
[105] The Respondent interpreted this response as demonstrating an ambivalence to the Respondents operational needs and viewed it as unacceptable.
[106] Rather the Respondent should have considered this response as an honest explanation by the Applicant that in future he would work public holidays as requested unless he had a reasonable reason to refuse to do so because of his family responsibilities. The Applicant was entitled to put this position to the Respondent and the Respondent wrongly viewed this in a negative light.
[107] More tangibly the Applicant's genuineness as to his recognition of the operational needs of the Respondent was demonstrated by the fact that on 3 January 2011, as requested by the Respondent, the Applicant had worked the public holiday. This fact seems to have been ignored by the Respondent.
[108] The Respondent concluded that the Applicant refusing the request to work Christmas Day and Boxing Day was a wilful refusal to obey a reasonable direction and so amounted to serious misconduct that warranted summarily dismissal. The Respondent however did not immediately stand the Applicant down after the ' serious misconduct ' occurred and instead allowed him to continue working after this on Thursday 30 December, Friday 31 December and Monday 3 January 2011 before dismissing him. Clearly it cannot be said that the refusal by the Applicant to work on Christmas Day and Boxing Day demonstrated an intention by the Applicant to no longer be bound by his contract of employment. The refusal to work on those days by the Applicant was not serious misconduct at all and clearly did not warrant summary dismissal.
[109] Considering these other matters then even if there had been a valid reason for dismissal I am of the view that the dismissal of the Applicant would have been unreasonable.
Conclusion
[110] I have decided that there was no valid reason for the Applicant’s dismissal. It was therefore unreasonable for the Respondent to dismiss the Applicant. I find that the dismissal of the Applicant was unfair.
[111] I note however that the Applicant at the time the Respondent decided to dismiss him had not sought to clarify why he was refusing to work public holidays and possibly if this had occurred it may well have been that the Respondent would have responded differently.
Remedy
[112] The Applicant has obtained another job and no longer seeks reinstatement. Reinstatement of the Applicant is therefore not appropriate.
[113] In all the circumstances I do consider that an award of compensation to the Applicant is appropriate in lieu of reinstatement.
[114] Section 392 prescribes the criteria the tribunal shall take in to account when making an order for compensation.
s. 392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
Compensation
Remuneration that would have been received
[115] On the basis of the information provided by the Applicant over the 11 weeks prior to his dismissal the gross payment he received from the Respondent was on average $1338.69 per week.
[116] The Applicant had been employed for approximately 5 years. Relevantly there had been some complaints with his performance over that time and it is likely that there would have been some difficulties for the Applicant in meeting the requirements of the Respondent to work at times on weekends and public holidays in the future. My assessment then is that had the Applicant not being dismissed then his employment would have continued with Cleanaway for a further period of 6 months.
[117] Consequently the amount of remuneration that the Applicant would have received or would have been likely to receive if he had not been dismissed was 26 weeks pay equalling $34,805.94 gross.
Remuneration earned
[118] Considering the information provided in Exhibit A5 and allowing for the fact that the first fortnight worked by the Applicant in his new employment was not a full week the average gross weekly payments earned was $1110.50. In the absence of evidence to the contrary I have assumed that this weekly amount would have continued to be earned by the Applicant up until the date of the compensation order issues. This amount then is a total of $18,878.50.
Income reasonably likely to be earned
[119] I will also allow a period of three weeks for the Respondent to make the compensation payment and during this period then the Applicant is likely to earn a further $3331.50.
Viability
[120] There is no evidence that would suggest that an order of compensation would affect the viability of the Respondent
Length of service
[121] The Applicant had been employed for nearly 5 years which does not detract from the amount of compensation to be ordered.
Mitigation efforts
[122] The Applicant did obtain new employment promptly after his dismissal and so has appropriately mitigated his loss and no deduction is therefore warranted.
Misconduct
[123] There will be no deductions for misconduct.
Compensation cap
[124] The amount to be ordered for compensation falls below the cap provided for in the Act.
[125] Considering these factors, the appropriate amount of compensation to be payable is $12,595.94 gross. An order to that effect will issue in conjunction with this decision.
COMMISSIONER
Appearances:
Mr A Dzieciol, Senior Legal/Industrial Officer, Transport Workers Union on behalf of the Applicant
Mr Small, National Employee Relations Manager on behalf of the Respondent
Hearing details:
2011.
Perth:
April 28.
1 PN 317 -318, PN 335 - 344.
2 Applicants Wit statement para 21, PN 38 - 42
3 PN 310 - 312.
4 PN 314
5 Australia Meat Holdings Pty Ltd v McLauchlan, Print Q1625, 5 June 1998, Ross VP, Polites SDP, Hoffman C.
6 Rode v Burwood Mitsubishi, Print R4471 at pn 19, 11 May 1999, Ross VP, Polites SDP, Foggo C
7 King v Freshmore (Vic) Pty Ltd, Print S4213 at pn 24, 17 March 2000, Ross VP, Williams SDP, Hingley C.
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