[2012] FWA 9643 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daryl Adcock
v
Moltoni Waste Management
(U2011/14755)
COMMISSIONER ASBURY |
BRISBANE, 13 NOVEMBER 2012 |
Application for unfair dismissal remedy.
Background
[1] Mr Daryl Adcock has made an application under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy following his dismissal by Moltoni Waste Management Pty Ltd. Mr Adcock asserts that he was employed from 6 December 2010 and was dismissed on 9 December 2011. Mr Adcock was represented by Ms Broanda of the Australian Workers’ Union of Employees, Queensland (AWUQ).
[2] The matter was not resolved in conciliation and was referred for hearing. Directions were issued requiring the parties to file and serve outlines of submissions and statements of evidence from any witnesses, in relation to the matters in dispute. Extensions of time in which to comply with the Directions requested by both parties were granted. The matter was listed for hearing in Townsville on 9, 10 and 11 May 2012.
[3] On 27 April 2012, Mr Petrie on behalf of Moltoni Waste Management Pty Ltd, forwarded an email to my Chambers and to the representative of Mr Adcock, in the following terms:
Dear Commissioner Asbury
I am informing you that Moltoni Group is now in a situation where Ernst and Young as Receiver Managers for St George Bank have the bulk of our assets on the market and as yet have no sales. St George Bank has fixed and floating charges over all Moltoni assets of the various Moltoni entities. Several Private lenders also have fixed and floating charges behind the bank but it is likely they will be short in the event the receivers cannot sell the assets at near valuation.
Moltoni Waste Management is in a position where it is no longer trading. The Company has no income, nor does it hold any assets. The Company holds significant debt and has no ability to cover its liabilities.
[4] On 27 April 2012, Ms Broanda of the AWUQ forwarded an email to my Chambers indicating the view that there was no evidence provided by Mr Petrie to support the contentions about the financial position or trading status of Moltoni Waste Management Pty Ltd, and that Mr Adcock sought that the matter proceed in accordance with previous directions.
[5] On 2 May 2012, Mr Petrie forwarded correspondence stating that Moltoni Waste Management Pty Ltd would not be defending the matter, and would be agreeable to Mr Adcock’s application being determined on the basis of material previously filed in Fair Work Australia. Mr Petrie further indicated that Moltoni Waste Management Pty Ltd would not seek to cross-examine any of the witnesses who had provided statements in support of Mr Adcock’s case. On 5 May, correspondence was received from the AWUQ also indicating that it sought that the matter be determined on the basis of material on the file and that attendance notices issued at the request of the AWUQ be set aside.
The matters in dispute
[6] Mr Adcock asserts that he was dismissed over allegations that he abused a Manager of the Local Council and a customer, and denies those allegations. Mr Adcock also asserts that Moltoni Waste Management Pty Ltd failed to properly investigate that matter and that a supervisor who has a history of bullying and harassing him, fabricated the allegations. According to Mr Adcock there was no valid reason for his dismissal, and it was harsh, unjust and unreasonable. The application is met with objections from Moltoni Waste Management Pty Ltd on the grounds that:
Is Moltoni Waste Management Pty Ltd a small business employer?
[7] Section 382 of the Act provides that a person is protected from unfair dismissal if certain requirements are met including that the person has completed a period of employment with his or her employer of at least the minimum employment period. 1 The minimum employment period is defined in s.383 of the Act as follows:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
[8] The meaning of small business employer is set out in s. 23 of the Act in the following terms.
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
[9] In accordance with s.12 of the Act “associated entity” has the meaning given by s.50AAA of the Corporations Act 2001 (the Corporations Act). That section provides as follows:
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b) the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(c) the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(c) the interest is material to the principal.
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”
[10] There were no statements of evidence from witnesses on behalf of Moltoni Waste Management Pty Ltd. No business records were provided to establish the number of employees of that Company. The only material before the Tribunal in relation to this question is the Employer’s Response to Application for Unfair Dismissal Remedy - Form F3 in which it is asserted that Moltoni Waste Management Pty Ltd has 6 employees in Queensland and 5 in Victoria. Further, in the Form F4 - Objection to Application for Unfair Dismissal Remedy, it is asserted that Moltoni Waste Management Pty Ltd is a small business employer as defined in s. 23 of the Act.
[11] It is also asserted that Mr Adcock commenced his employment on 14 December and not 6 December as stated in his application. In support of this contention, Moltoni Waste Management Pty Ltd referred to the letter offering Mr Adcock employment appended to its Form F3 (incorrectly dated 13 December 2011 instead of 13 December 2010), stating that Mr Adcock would commence on 14 December 2010.
[12] It appears from the submissions filed on behalf of Mr Adcock that he accepts that he did actually commence employment on 14 December 2010, however, if it is the case that Moltoni is not a small business employer, Mr Adcock’s start date is not determinative.
[13] The AWU on behalf of Mr Adcock tendered Company Extracts and a historical personal name search from the Australian Securities and Investment Commission (ASIC) indicating that Moltoni Waste Management Pty Ltd is part of the Moltoni Group of Companies and that Robert Moltoni is a Director of a number of Companies in that Group. Material was also tendered by the AWU drawn from the website of the Moltoni Group of Companies which indicates that the group is composed of business units, including property development, waste management, agriculture and water, undertaking projects supporting sustainable outcomes for future generations, through resource recovery and innovation.
[14] In the absence of any evidence to the contrary from Moltoni Waste Management Pty Ltd, and in light of the material tendered by the AWU, it is more probable than not that Moltoni employs 15 or more employees, including through its associated entities. I am fortified in this view by the fact that the material filed on behalf of Moltoni Waste Management Pty Ltd was sent to Fair Work Australia by Mr Greg Petrie. Mr Petrie’s email signature block indicates that he is the General Manager of Gippsland Waste Services. Mr Petrie has also signed the correspondence to Mr Adcock and the Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy - as General Manager of Moltoni Waste Management.
[15] Accordingly, I am not satisfied that Moltoni Waste Management Pty Ltd is a small business employer. I am satisfied that Mr Adcock has served the minimum period of employment required in s. 383(a). It is not in dispute that Mr Adcock is a person protected from unfair dismissal and there is no evidence before me to suggest that Mr Adcock does not come within one or more of the criteria in s. 382(b) of the Act.
Evidence and Submissions in relation to Mr Adcock’s dismissal
[16] Mr Adcock’s evidence is that he was employed by Moltoni Waste Management Pty Ltd as a Gatekeeper/Attendant at the Ayr Transfer Station. Mr Adcock said that approximately 6 months after he commenced employment, he was accused by his supervisor Mr McIntosh of stealing a metal tray. When Mr Adcock established his innocence Mr McIntosh began to bully him and Mr Adcock suspected that Mr McIntosh wanted to get rid of him. The AWU on behalf of Mr Adcock asserted that Mr McIntosh wanted to get rid of Mr Adcock so that he could give Mr Adcock’s job to his neighbour, who is now employed in Mr Adcock’s previous position.
[17] In September and November 2011 Mr McIntosh had a number of discussions with Mr Adcock about work matters in an informal way which Mr Adcock did not consider as counselling sessions.
[18] The AWU on behalf of Mr Adcock tendered two documents entitled “conversation record”. The first record dated 8 June dealt with the issue of the metal tray and contained an instruction about staff members purchasing items from the second hand shop. The second record is dated 1 September 2011 and states that Mr Adcock was spoken to about issues such as paperwork, the standard of his hand writing, talking too much, smoking and leaving cigarette butts in the work area and other matters.
[19] On 2 November 2011 Mr McIntosh raised an issue about cash/accounts records being out. Mr Adcock said that he had made a note at the time about the irregularity and provided an explanation as to why it had occurred. After this discussion Mr Adcock found a formal warning letter on his desk. That letter was also tendered by the AWU and indicates that Mr Adcock was warned about matters including clerical and administrative errors; time spent socialising with personal visitors on site; monitoring and checking bins and loads; extremely poor standards with respect to paperwork; and smoking on site. The letter is said to be a first and final warning and states that if there is no improvement Mr Adcock’s employment will be at risk and if there is a need to address these areas further Mr Adcock’s employment is likely to be terminated.
[20] Mr Adcock said that he disputed the contents of the letter by telephoning Mr Petrie, the General Manager of Moltoni Waste Management Pty Ltd, who is based in Melbourne, but was subsequently advised in a further letter of 8 November 2011 that the earlier warning letter would stand.
[21] Mr Adcock contacted the AWU and was advised not to participate in discussions with the company without a representative of the Union being present. On 30 November 2011 Mr McIntosh requested that Mr Adcock participate in a telephone conference with Mr Petrie. Mr Adcock requested that he be allowed to have a Union representative present, and this was agreed and the meeting was adjourned. Later that afternoon, Mr McIntosh told Mr Adcock that he was required to leave the site, and did not give any reasons for this request. Mr Stockham, Northern District Secretary of the AWU, contacted Mr Petrie and was told that Mr Adcock was stood down on full pay while an investigation into his conduct was held.
[22] On 5 November 2011 a telephone conference was held between Mr Adcock, Mr Stockham on behalf of the AWU and the General Manager of Moltoni Waste Management Pty Ltd, Mr Petrie. Mr Petrie stated that Mr Adcock had been stood down from his employment because the Company had received written complaints from a customer (Mr Becke) that Mr Adcock had told him to “fuck off” and from a Council Manager (Ms Jensen) stating that Mr Adcock had sworn at her and abused her. Mr Adcock denied the allegations and Mr Petrie said that he would investigate the matters further. Mr Stockham provided a statement to the Tribunal supporting Mr Adcock’s version of the meeting.
[23] Mr Adcock and Mr Stockham both said that there were no further discussions after the meeting and Mr Adcock received a letter dated 9 December 2011, terminating his employment. Mr Adcock said that a person called “Kev”, who had performed carpentry work for Mr McIntosh and had been promised a job, was given Mr Adcock’s position after leaving a job he had been given in Home Hill.
[24] Mr Becke, a self employed waste transporter operating a business named Burdekin Acquavac, provided a statement to the effect that Mr Adcock had never told him to “fuck off” and denying that he had made any complaint, whether formal or informal, about Mr Adcock. Ms Jensen, Manager Environmental Health with Burdekin Shire Council, also provided a statement that upon becoming aware of disciplinary action being taken against Mr Adcock, she had telephoned Mr Petrie to advise that council had not had any issues with Mr Adcock and no complaints had been made about him.
[25] Ms Jensen said that Mr Adcock came into the Council offices in December 2011 to advise that he had been suspended from the workplace. Mr Adcock was not abusive and simply asked whether there was anything Council could do to help him. Mr Adcock also attended the Council offices to ask Ms Jensen whether she had lodged a complaint against him with regard to him abusing her. Ms Jensen said that she told Mr Adcock that she had not made such a complaint. Ms Jensen said in her statement that Mr Adcock had not abused her at any time.
[26] The material provided to the Tribunal by Moltoni Waste Management Pty Ltd consists of a statement from Mr Petrie making assertions in response to each of the points in the application for an unfair dismissal remedy filed by Mr Adcock. Mr Petrie asserts that there are witnesses to the allegations made against Mr Adcock and disputes the contentions of Mr Adcock that the allegations were not properly investigated and that Moltoni Waste Management Pty Ltd has a history of making unfounded and unjustified allegations against Mr Adcock.
[27] Mr Petrie also states that the assertion of Mr Adcock that he was bullied by Mr McIntosh and that Mr McIntosh fabricated the complaints against Mr Adcock in order to bring about his dismissal, is disputed. Further Mr Petrie disputes the assertion that the termination of Mr Adcock’s employment was not for a valid reason and that it was harsh, unjust or unreasonable. Mr Petrie also maintains that Mr Adcock was afforded procedural and substantive fairness during the decision to termination his employment.
[28] Mr Petrie also provided a number of documents including the conversation records dated 8 June and 13 September 2011 tendered by Mr Adcock and an additional conversation record dated 24 May 2011 which indicates that Mr Adcock and Mr McIntosh had a discussion about stumps and other incorrect material found in green waste. Mr Petrie also tendered two emails from Mr McIntosh dated 28 September and 1 November, setting out complaints in relation to Mr Adcock’s performance and asking for those matters to be addressed.
[29] Further, Mr Petrie tendered the same correspondence tendered by Mr Adcock comprising the warning letter of 2 November, the confirmation letter indicating that the warning would stand dated 8 November and the termination letter dated 9 December 2011. There was no evidence of any written complaints made against Mr Adcock as alleged, and not surprisingly, no evidence from the complainants to support the allegations. Further, Ms Jensen’s evidence is that she told Mr Petrie that no complaints had been made about Mr Adcock and there had been no issues with him.
Legislation
[30] By virtue of s.385 of the Act, a person has been unfairly dismissed if FWA is satisfied that:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; ..”
[31] In deciding whether a dismissal was harsh, unjust or unreasonable, FWA must take into account matters set out in s.387 of the Act as follows:
“(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 the dismissal; and
(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.”
Consideration
Was there a valid reason for Mr Adcock’s dismissal
[32] The uncontested evidence of Mr Adcock and Mr Stockham was that the reasons given for standing Mr Adcock down immediately prior to his dismissal were that he had told Mr Becke to “fuck off” and abused Ms Jensen and that shortly after a meeting at which these allegations were put to Mr Adcock, he was dismissed.
[33] In the absence of evidence to the contrary, I accept that these matters were the reason for Mr Adcock’s dismissal. I also accept the uncontested evidence of Mr Becke and Ms Jensen that Mr Adcock did not engage in the alleged conduct. There is no evidence of any other reason for the dismissal of Mr Adcock. Although there is evidence of warnings being given to Mr Adcock about various matters disputed by Mr Adcock, there is no evidence that the dismissal was for any reasons other than the allegations of abuse with respect to Mr Becke and Ms Jensen.
[34] In the circumstances, I can make no finding other than that there was no valid reason for the dismissal of Mr Adcock.
Was Mr Adcock notified of the reason for his dismissal?
[35] The evidence establishes that on 5 December 2011, Mr Adcock was notified of allegations against him in relation to his dealings with Mr Becke and Ms Jensen, notwithstanding the fact that those allegations were without foundation. There is uncontested evidence from Mr Adcock and Mr Stockham that at the conclusion of the meeting on 5 December, Mr Adcock denied the allegations and Mr Petrie stated that he was going to investigate the matter further.
[36] The termination letter dated 9 December 2011 refers to “a reported incident at Ayr Transfer Station on 9 December 2011” and asserts that Mr Adcock was notified of that incident on 30 November and that it was discussed with Mr Adcock and Mr Stockham.
[37] While it is probable that the alleged incidents involving Mr Becke and Ms Jensen were the reason for Mr Adcock’s dismissal, I am of the view that the failure on the part of Mr Petrie to make further contact with Mr Adcock after that meeting, and to proceed to dismiss him without further explanation, resulted in Mr Adcock not being notified of the reason for his dismissal.
Was Mr Adcock given an opportunity to respond to reasons for dismissal?
[38] The reasons for Mr Adcock’s dismissal related to his conduct. For the reasons set out above, I do not accept that Mr Adcock was given an opportunity to respond to the reasons for his dismissal. Given the evidence of Mr Becke and Ms Jensen that the allegations were unfounded, this failure is significant and Mr Adcock was denied an opportunity to properly defend himself.
Was there an unreasonable refusal to allow Mr Adcock to have a support person present?
[39] Mr Adcock was allowed to have a support person present to assist in discussions relating to his dismissal.
Had Mr Adcock been warned about unsatisfactory performance?
[40] Although there is evidence that Mr Adcock had been warned about unsatisfactory performance, there is also evidence that these warnings were disputed. Further, Mr Adcock was not dismissed for unsatisfactory performance, but rather for alleged abuse of Mr Becke and Ms Jensen. In this context, the warnings given to Mr Adcock are not a significant matter that weighs in the consideration of whether he was unfairly dismissed.
The Degree to which size of employer’s enterprise impacted on dismissal?
[41] There is no evidence in relation to this matter and it is not a consideration in the present case.
Degree to which absence of dedicated HR Management impacted on dismissal?
[42] There is no evidence in relation to this matter and it is not a consideration in the present case.
Conclusion
[43] Given the findings I have made, there is no other conclusion available than that Mr Adcock was unfairly dismissed. There was no valid reason for his dismissal, and there were significant deficiencies in the process by which the dismissal was effected. The dismissal was harsh because Mr Adcock lost income as a result. The dismissal was unjust because Mr Adcock was not guilty of the misconduct upon which the employer acted. The dismissal was unreasonable because there was no material before the employer on which the dismissal could be justified, and the alleged written complaints about Mr Adcock had not been made. Indeed, Mr Petrie was told, prior to the dismissal, by Ms Jensen, the person he had alleged was abused by Mr Adcock, that there were no complaints or issues with Mr Adcock from her or the Council.
Remedy
[44] As required by s. 390 of the Act, I am satisfied that Mr Adcock was protected from unfair dismissal and that he has been unfairly dismissed. Mr Adcock should have a remedy for his dismissal, and I am satisfied that reinstatement is not appropriate, given the circumstances of this case, including the apparently false allegations made against Mr Adcock.
[45] The remedy of compensation is dealt with in s.392 of the Act in the following terms:
“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.”
[46] Other than the assertion that Mr Adcock was without income for a period of nine weeks, and that he seeks compensation to cover this period, there is no evidence in relation to Mr Adcock’s salary at the time of his dismissal, or any income he earned subsequent to his dismissal. There is also no proper evidence about the economic viability of Moltoni Waste Management Pty Ltd and the impact that an order for compensation would have.
[47] I intend to award Mr Adcock an amount of nine weeks wages as compensation for his unfair dismissal. I do not intend to make any deduction from that amount for misconduct. On the basis of the finding that Mr Adcock did not engage in the conduct for which he was dismissed. I am satisfied that it is likely that, but for his unfair dismissal, Mr Adcock would have remained in employment for at least a further 9 weeks. In order to determine an appropriate amount of compensation, I require a further statement from Mr Adcock addressing the matters in s. 392 of the Act and in particular s.392(2)(d), (e) and (f). This statement is to be filed in Fair Work Australia and served on Moltoni Waste Management Pty Ltd within seven days of the date of release of this decision. In the circumstances, I also provide Moltoni Waste Management Pty Ltd with an opportunity to provide further material relevant to the matters in s. 392 or to indicate whether it seeks to cross examine Mr Adcock. That material should be filed in Fair Work Australia and served upon the AWU within 14 days of the date of release of this decision.
[48] Upon receipt of this further material, I will determine the amount of compensation and issue an Order requiring it to be paid.
COMMISSIONER
Hearing details:
On the papers
1 Section 382(a) of the Fair Work Act 2009.
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