| [2016] FWC 5382 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mervyn Jacob
v
West Australian Newspapers Limited T/A The West Australian
(U2015/9459)
COMMISSIONER WILLIAMS |
PERTH, 8 AUGUST 2016 |
Termination of employment.
[1] This decision concerns an application made by Mr Mervyn Jacob (Mr Jacob or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is West Australian Newspapers Limited T/A The West Australian (WAN or the respondent).
[2] Mr Jacob was dismissed on 26 June 2015. He was provided with a letter the same day which explained the background. The letter referred to previous discussions with him regarding other work with Uber. The letter referred to his lack of transparency and cooperation throughout the investigation which had undermined WAN’s trust and confidence in him as an employee. The letter stated he had still not submitted a written request for permission to perform secondary work and had not provided a satisfactory explanation as to his work with Uber. The letter said he had conducted himself in an obstructive manner which had cause the relationship to become untenable.
[3] Consequently WAN terminated Mr Jacob’s employment with pay in lieu of notice.
[4] At the hearing of this matter Mr Jacob gave evidence. For the respondent evidence was given by Mr Terence Clarke (Mr Clarke) the General Manager, Mr Corrie Gaugg (Mr Gaugg) the Printing Manager, Ms Catherine Hawkins (Ms Hawkins) the Human Resources Manager and Ms Kerry Kang (Ms Kang).
[5] Having considered the evidence of the witnesses I make the following findings.
[6] Mr Jacob commenced employment with the respondent in February 2001. He was employed as a Newspaper Machinist and his duties included printing the newspapers and since approximately 2002 acting as Foreman of the press.
[7] In their evidence the respondent’s witnesses referred to a contract of employment they say applied to Mr Jacob. It was disputed by Mr Jacob’s representative that this was in fact his contract of employment. I accept the evidence of Ms Hawkins that a copy of Mr Jacob’s unsigned contract was saved on the respondent’s system as being Mr Jacob’s contract and that this was in all likelihood issued to him when he was first employed. 1 I also accept the evidence of Ms Hawkins that she had checked other employment contracts issued around the same time Mr Jacob was first employed to confirm that those contracts did include a clause that an employee was required to have the permission of the respondent to have a second job.2
[8] On the balance of probabilities I find that Mr Jacob’s employment contract was in the terms of attachment CG1 to the witness statement of Mr Gaugg (Exhibit R4), and did include the clause as follows:
“Other work
It is an express term of your contract of employment that you may not engage in other work without the company’s written consent, provided such permission shall not be unreasonably withheld. In the case of permission being withheld, reasons will be provided in writing.”
[9] Mr Jacob’s contract of employment also provides that the employment is subject to current company policy which is subject to review.
[10] The evidence is that the respondent also has an Employee Code of Conduct which includes a provision in the following terms:
“2.5 Employees may not accept an external appointment, such as a board appointment (other than the board of a non trading family company), working for another organisation, or conducting a business without the written permission of the Chief Executive Officer, or in the case of the Chief Executive officer, the Chairman.”
[11] Separately the respondent has a Fitness for Work Procedure. This policy/procedure deals with alcohol and drug testing but also with fatigue issues. It includes requirements at 13.1, that employees attending for work shall not be adversely affected for any reason including fatigue. The procedure goes on to explain that management has a duty of care to consider and assess a person’s fitness for work and identify and manage potential fitness for work issues.
[12] The respondent’s evidence which is not challenged is that both the Employee Code of Conduct and the Fitness for Work Procedure were provided to all staff by email. Mr Jacob’s evidence is that he had not seen these documents until the investigations leading up to his dismissal.
[13] Whilst I accept Mr Jacob may not have read either of these documents prior to the investigations into his out of work activities I find that they were provided to him and they did apply to him.
[14] The issue of fatigue as a safety risk was discussed at toolbox meetings which on the balance of probabilities Mr Jacob had attended.
[15] The existence of the “Other Work” clause in his contract was brought to Mr Jacob’s attention during a meeting on 9 June 2015 and in a follow-up letter to him dated 10 June 2015. The letter explained that this clause specifies that he must seek approval prior to taking on a second job and that this was a health and safety concern for the respondent particularly because he worked night shift.
[16] Mr Jacob has not denied he was required to seek permission prior to taking on a second job. He also acknowledges that given he worked night shift working a second job is potentially a health and safety issue. 3
[17] Mr Jacob agrees that driving for a fee for a significant period could make someone fatigued.
[18] In early May 2014 the applicant was counselled by Mr Gaugg in relation to an incident that occurred whilst he was acting as Press Foreman and because his error rate when printing colour was unacceptable.
[19] Over the following months there was no noticeable improvement in his performance.
[20] Consequently on 23 October 2014 Mr Jacob was placed on a Performance Improvement Plan (PIP) to improve his unsatisfactory performance as a Printing Machinist.
[21] The day after this meeting with Mr Gaugg, regarding being placed on a PIP, Mr Jacob commenced a period of paid sick leave. Mr Jacob remained on paid sick leave until his accruals ran out on 28 November 2014 and he resumed work on 3 December 2014 having been absent for six weeks.
[22] On resuming work the PIP was extended for a further three months because he had not been at work.
[23] In November 2014 a former Manager of the respondent Mr Roche had heard rumours that Mr Jacob was working as an Uber driver. Mr Roche asked Mr Jacob whether he was working as a taxi driver and Mr Jacob said he was not.
[24] I note Mr Jacob in cross-examination on this issue quite properly did not make a distinction between being asked by Mr Roche whether he was “driving a taxi” as distinct from “working for Uber”. 4
[25] Mr Jacob’s own evidence is that in 2014 he had been thinking of establishing a taxi business and so obtained an Australian Business Number (ABN) in September 2014. A few months later, in November 2014, he obtained an “F” endorsement on his driver’s license which means he is licensed to drive a vehicle with fee paying passengers. This was part of his plan to operate a taxi type business. 5
[26] At the hearing Mr Jacob agreed he had an ABN but says he did not operate a taxi type business but instead his wife did, implying that she used his ABN. 6 His evidence later however was that his ABN is not used for the Uber business his wife has and that she has her own ABN. When pressed on this he said he was not sure whether his wife has an ABN.7 Next he firstly said he has not filed any tax invoices or Business Activity Statements (BAS) with the Australian Tax Office (ATO) in relation to his ABN but immediately after this statement said he is unsure whether he has or not. His very next answer was that his wife normally handles all of that, which is inconsistent with his previous evidence that his ABN is not used for his wife’s Uber business.8
[27] Mr Jacob’s contradictory and inconsistent evidence at the hearing on these matters, amongst others, has lead me to conclude he is not a credible witness.
[28] The evidence is that in early 2015 Mr Clarke had heard more rumours from people working on the print floor that Mr Jacob had been saying he was driving for Uber and how successful it was.
[29] In April 2015 another Manager of the respondent Mr Jones told Mr Clarke that he had taken an Uber ride home on the evening of Saturday, 11 April 2015 and believed one of the respondent’s employees was the driver. Mr Jones told him he recalled the driver’s name was Mervyn and they had had a discussion about working at WAN.
[30] Mr Clarke discussed with Mr Gaugg his concerns that Mr Jacob may be driving an Uber during the day then working for the respondent at night.
[31] Mr Clarke was aware that Mr Jacob had taken a lot of personal leave. The evidence is that between January 2014 and June 2015 Mr Jacob took 47 days personal leave.
[32] A report was run to ascertain the dates Mr Jacob had taken personal leave. This showed he had taken personal leave on 9 and 10 April and also 12 and 13 April 2015. The night Mr Jones had possibly been driven by Mr Jacob, Saturday 11 April, fell between these two periods of personal leave. Mr Jacob does not work on Saturdays.
[33] To claim these four days as personal leave Mr Jacob had provided a medical certificate to the respondent dated 10 April 2015 which rather confusingly certified that,
“Mr Mervyn Jacob has a medical condition and will be unfit for work from 09/04/2015 to 13/04/ 2015 inclusive due to carers leave.”
[34] The respondent was concerned that this information together suggested Mr Jacob may be driving for Uber and that this could potentially be interfering with his fitness for work on night shifts for the respondent.
[35] Consequently the respondent met with Mr Jacob on 9 June 2015.
[36] Mr Jacob’s evidence 9 was that at the meeting he was asked what his affiliation was with Uber and he responded it was his wife’s business. He was asked how long he had been with Uber. He says he replied again that it was his wife’s business.
[37] He says he was asked if he picked up Mr Jones from Burswood on the evening of Saturday, 11 April 2015 to which he responded that he did not but picked him up from Ardross. He was told it did not matter where he picked him up from and Mr Jacob confirmed he had picked up Mr Jones.
[38] He says he was asked how long he was driving for Uber and he replied he had driven several times but that it was his wife’s business, that she was registered with Uber and he occasionally helped out when she required additional drivers.
[39] He says he was told he was having excessive sick leave.
[40] He says he was told he needed to seek permission to hold another job and was told that his safety was an issue. He replied that he would help his wife drive on a Saturday if she requires any help and he was not working for his wife nor did he receive remuneration for providing that assistance.
[41] Mr Jacob’s evidence is that he was then asked to provide documentation from Uber showing his records with them. He replied that he was unable to provide that documentation as it belonged to his wife and Uber and was confidential.
[42] Ms Hawkins also gave evidence about this 9 June 2015 meeting. She provided her hand written notes from that meeting.
[43] She says the meeting began by asking Mr Jacob about his sick leave and in particular his leave on 9 - 10 and 12 - 13 April 2015. Mr Jacob replied he was sick and could not work but could not remember what was wrong with him. Ms Hawkins found this surprising given the absence was only six weeks prior.
[44] Her evidence was that Mr Jacob was told they understood he was working for Uber but he denied this and said he had nothing to do with Uber.
[45] When questioned further he said his wife worked for Uber and he occasionally drove her car to the petrol station or car wash. Mr Jacob denied being a registered Uber driver or receiving income from Uber.
[46] He was asked whether he recalled picking up Mr Jones on 11 April 2015. Mr Jacob said he did not know who Mr Jones was and he had not picked him up.
[47] Mr Jacob was told that Mr Jones had said he had chatted to Mr Jacob during an Uber trip on 11 April 2015 and they had both disclosed that they worked for the respondent.
[48] Her evidence was that Mr Jacob’s memory then appeared to improve and he acknowledged he had driven Mr Jones. He maintained however that he still did not work for Uber.
[49] Towards the end of the meeting Mr Jacob said that both he and his wife owned the Uber business. Her evidence was she was surprised by this as it contradicted his previous answers.
[50] Her impression was Mr Jacob was defensive and was not being honest with them.
[51] Her evidence was the meeting concluded with Mr Jacob being asked to produce his Uber app phone records and the Excel spreadsheet from 1 February 2015 onwards which they understood Uber sends out to all drivers. Mr Jacob replied that he could not provide any records relating to his wife’s company at that these were confidential.
[52] Mr Jacob was also asked to submit in writing a request to work as an Uber driver and the hours he intended to do this work so the respondent could determine if it was considered reasonable and safe. He was told the next meeting was scheduled for 16 June 2015 and he was expected to bring the Uber records to that meeting.
[53] The evidence of Mr Jacob and Ms Hawkins is broadly consistent with respect to this meeting however to the extent that there are differences I prefer the evidence of Ms Hawkins which was supported by her contemporaneous notes and by the evidence of Mr Gaugg who was also in attendance. Mr Jacob’s response to his employer’s questions at the first meeting in summary were:
[54] The evidence of Ms Kang is that she is a registered Uber driver. To be registered as a driver for Uber you need to have an “F” endorsement on your driver’s license that allows a person to drive passengers for a fair.
[55] Everyone who registers as an Uber driver has to attend in person at an Uber registration office and provide photo identification, copies of the appropriately endorsed driver’s license, car registration of the vehicle they will drive and a copy of the current insurance policy. Your photograph is then taken for your Uber profile picture.
[56] With respect to records her evidence is that Uber sends a weekly email attaching a statement of payments for the week. A driver’s earnings history is accessible on the app. The app also allows a driver to see their trip history including the dates and times of previous trips and the costs of the fair.
[57] Separately it is possible to access a driver’s earning history, trip information and other registration details by logging on to the driver’s account through the Uber website.
[58] I accept the unchallenged evidence of Ms Kang.
[59] The next day, 10 June 2015, Ms Hawkins wrote to Mr Jacob repeating the request for his Uber driving records and reminding him of the health and safety concerns holding a second job may cause, the letter went on to say:
“We are concerned about your well-being, and your capacity to work effectively and safely and as such, since you have not previous (sic) submitted a request, we are seeking the following information in written form. A formal request to hold down an additional position with Uber including expected hours of work per week (including weekends), days of driving and shift times specifying am or pm. Please be realistic in providing this information, as it will, if accepted, serve as an agreement between yourself and WAN.
We will meet again to review your documentation on Tuesday, 16th June 2015 at 7pm, level 2 HPC. You are more than welcome to bring a support person or union representative.”
[60] Implicit in this letter was recognition by WAN that Mr Jacob’s conduct to that point had not placed his employment in jeopardy provided he normalised his involvement with Uber as he was required to do by his contract.
[61] On 15 June 2015 Ms Hawkins obtained from Mr Jones an Uber receipt for his trip on 11 April 2015. The receipt shows a pickup time of 10.57 p.m. and a drop-off time of 11.18 p.m. The receipt includes on the footer a picture of Mr Jacob and the wording,
“You rode with Mervyn
Issued on behalf of Mervyn Jacob”
[62] On 16 June 2015 Mr Draper, Mr Jacob’s lawyer, sent a letter to Ms Hawkins referring to her letter dated 10 June 2015 and explaining that:
“Our clients instructions are that, as our client has already informed you, he does not work for Uber and has never worked for Uber. His wife does currently work for the Uber transport company. Our client was simply assisting his wife on the day in question due to her being unable to work at that time. My client has informed me that this was on a Saturday and he was not working nor was he meant to be working.
Our client is unable to supply you with the documents you request. They are not his documents and belong either to his wife or Uber and are subject to confidential that he is not entitled to breach.”
[63] That letter suggested that the next meeting be adjourned to a later date to allow Mr Jacob’s further response.
[64] In reply later that day Ms Hawkins advised that Mr Jacob would be given until 18 June 2015 to provide any further information and that the meeting would be rescheduled to 19 June 2015. Mr Draper, as requested, was also provided with a copy of Mr Jacob’s employment contract.
[65] A further extension was allowed until 22 June 2015 and the meeting was rescheduled to 23 June 2015.
[66] At the meeting on 23 June 2015 Mr Jacob was accompanied by two union representatives and Ms Hawkins and Mr Gaugg attended.
[67] Ms Hawkins had prepared a file note of questions to be asked at the meeting and during the meeting she made notes of Mr Jacob’s responses on that file note. 10
[68] Ms Hawkins advised Mr Jacob he was required to provide open and honest answers and cannot withhold information or impair the investigation. He was advised if he did this could lead to disciplinary action.
[69] Mr Jacob said he was not an Uber employee.
[70] When asked whether he was registered with Uber to drive, Mr Jacob replied that his wife had a contract with Uber.
[71] When asked if he had ever driven an Uber car and received a fee, Mr Jacob replied it was his wife’s business.
[72] When reminded that in the previous meeting he had said both he and his wife owned the Uber business, Mr Jacob denied he had said that at the first meeting and said Ms Hawkins was lying.
[73] When asked whether he had more than one vehicle registered with Uber and what colour, make and model those vehicles were, Mr Jacob did not answer but became aggressive and started swearing at Ms Hawkins. He said he would not answer any more questions. Mr Jacob asked “Why are you asking this?” He said it was “bullshit” and said Ms Hawkins was a “bloody liar”. Mr Jacob said he was not working for Uber and was not a registered driver.
[74] Ms Hawkins advised Mr Jacob she thought he was trying to hamper the investigation.
[75] Ms Hawkins then showed Mr Jacob a copy of the receipt he had given Mr Jones for the Uber ride on 11 April 2015. She pointed out the receipt contained his picture and named him as the driver.
[76] Ms Hawkins explained Uber’s requirements for drivers being registered which necessitated providing a driver’s license, passport, birth certificate, insurance policy and vehicle registration certificate and asked how he could drive for Uber without being registered, to which Mr Jacob replied that his wife must have completed an application for him without his knowledge.
[77] Mr Jacob said that he did not deal with payments and any Uber payment went into their family bank account.
[78] When asked about the sick leave he had taken between 9 and 13 April 2015 he still could not remember what was wrong with him but said that the only day he had been well was 11 April 2015, the day he had driven Mr Jones.
[79] When advised that the records indicated he had claimed carer’s leave, not sick leave, for this period he did not respond.
[80] When asked to produce his Uber records for periods of previous personal leave he said he and his wife had separated and that the records were her property and he could not access them.
[81] When told that having admitted he was a registered Uber driver he should be able to access his records directly from Uber he repeated that the records belonged to his wife and he did not have access to them as they were no longer together.
[82] Ms Hawkins said that he should talk to his wife and obtain the records and that he was obstructing the investigation. She said she had found his responses to the questions unconvincing. He was requested to provide copies of the records showing the dates on which he had driven an Uber vehicle over the past six months. He was advised the employer was considering terminating his employment.
[83] He was told he would be stood down on pay until 26 June 2015 when a decision regarding his employment would be made.
[84] The next day a letter to Mr Jacob was emailed to him and to his lawyer. The four page letter detailed the history of both prior meetings with Mr Jacob, the issues that he had been questioned about in those meetings and what his responses had been. The letter pointed out apparent inconsistencies in his responses. It noted what he had been requested to provide in terms of records of his Uber driving. It explained why it was believed that contrary to his explanation he had himself completed the Uber driver registration process. It noted he had become aggressive and swore in response to questions at the most recent meeting.
[85] The last page of the letter is headed “Way Forward” and reads as follows:
“We are disappointed with your lack of transparency and cooperation throughout this process. Based on our discussions and evidence, you have repeatedly contradicted yourself when answering WAN’s straightforward questions. WAN has serious doubts about your credibility during this process. WAN considers that, on the balance of probabilities, you have distorted the truth and sought to mislead us in an effort to protect your own interest. This level of dishonesty and misconduct is of significant concern and will not be tolerated by the business.
Our initial request was simple, reasonable and fair. We wanted two things. Firstly for you to provide Uber records so we could cross check dates with your sick leave and secondly, we requested that you seek written permission to hold a second job. Had you participated in this process in an open and honest manner, the outcome of this process may have been different. For example, WAN may have been prepared to approve you to work a second job with Uber provided it did not unreasonably impact on your health and safety when performing work for WAN.
Instead, throughout this process, you have consistently failed to take personal responsibility for your actions. As a business, we now have strong concerns over your level of ethics and integrity. Your actions have undermined any trust, faith or confidence we have in you and this has been detrimental to the continuation of your employment. I must therefore, inform you that at this stage we are seriously considering terminating your employment.”
[86] The letter then invited him to respond to the show cause letter in two days time and said there would be a meeting on 26 June 2015 to discuss the final outcome. He was invited to bring a support person to that meeting.
[87] In response to the show cause letter on 26 June 2015 at 11.56 a.m. on Mr Jacob’s behalf his lawyer responded by email to Ms Hawkins to the following effect:
[88] Later that day at 2.45 p.m. Mr Jacob, accompanied by two support persons being Mr Lindsay from the AMWU and Mr Davies, attended a meeting with Ms Hawkins and Mr Gaugg.
[89] Ms Hawkins advised him that due to his lack of transparency and cooperation during the investigation process the company had doubts about his integrity. The questions he had been asked were reasonable and straightforward but he had acted in an unreasonable manner and not cooperated.
[90] He was told that by not responding openly to the initial requests for his Uber records and not completing a request for written permission to hold a second job he had undermined the trust, faith and confidence the employer needed to have in him for the employment relationship to continue.
[91] Mr Jacob responded that he and his wife were having issues and his wife had left him.
[92] There was some discussion about the response from his lawyer to the show cause letter.
[93] Mr Jacob was told if he had been honest and cooperative in the first place he would not be in this position.
[94] Mr Jacob apologised for the way he handled things. He said he had been with the company for 15 years and had a clean record. Mr Lindsay spoke on behalf of Mr Jacob behalf saying he would find it difficult to get a job and was a long-standing employee.
[95] Ms Hawkins replied that his personal file indicated he did not have a clean record and had been on a PIP from 2014.
[96] The meeting was adjourned and Ms Hawkins and Mr Gaugg considered the matter and discussed it with Mr Clarke. It was explained to Mr Clarke that Mr Jacob’s marriage had broken down and he still would not produce the requested records. Mr Gaugg was asked by Mr Clarke whether they could trust Mr Jacob to do the right thing in the future and his response that was that he no longer trusted him as he believed he had been deliberately untruthful.
[97] Mr Clarke was the decision-maker and decided to terminate Mr Jacob’s employment taking into account his recent poor performance, the fact that he was on a PIP, his failure to cooperate during the initial meetings and subsequent meetings and his lack of transparency, his length of service and what Mr Clarke saw as a breakdown in trust and confidence between the company and Mr Jacob.
[98] The meeting was reconvened and Mr Jacob was advised that the employment relationship was beyond repair and they were terminating his employment with pay in lieu of notice.
[99] It is necessary to make some findings as to the differences in Mr Jacob’s responses to the employer throughout this process of enquiry. To this end I summarise what Mr Jacob was telling his employer at various points as follows:
At the 9 June 2015 meeting
In his lawyer’s letter dated 16 June 2015
At the 23 June 2015 meeting
In his lawyer’s email dated 26 June 2015
[100] Mr Jacob’s 26 June 2015 explanation, contained in his lawyers email, which was his final response to these matters raised by his employer includes his admissions that he was a registered Uber driver who was paid for that work and that he has done this driving work on 15 occasions since January 2015.
[101] Mr Jacob’s 26 June 2015 explanation directly contradicts what he told his employer at the 9 June 2015 meeting, that he had nothing to do with Uber, but he occasionally drove his wife’s vehicle to the petrol station or car wash and his reluctant concession he once drove a passenger on 11 April 2015. What he told his employer at the 9 June 2015 meeting was not true.
[102] Mr Jacob’s 26 June 2015 explanation also directly contradicts what he told his employer through his lawyer’s letter on 16 June 2015 wherein he admitted to only assisting his wife once on 11 April 2015. What he told his employer in that email was not a full and honest explanation of his work as an Uber driver.
[103] Mr Jacob’s 26 June 2015 explanation also directly contradicts what he told his employer at the meeting on 23 June 2015 where he was asked but did not admit he was a registered Uber driver, where he was asked but did not admit he received a fee for Uber driving and where he said his wife must have registered him as an Uber driver without his knowledge and where he failed to disclose the 14 other occasions on which he now says he has worked as an Uber driver. What he told his employer at the 23 June 2015 meeting was not true.
[104] What Mr Jacob told his employer through his lawyer’s email dated 26 June 2015 in response to his employers show cause letter demonstrates that on each of the three prior occasions when he was responding to questions from his employer about these matters, at two meetings in person and once in a letter from his lawyer, he was misleading and dishonest. I am satisfied that Mr Jacob on multiple occasions throughout this process lied to his employer.
[105] The applicant submits the respondent’s sole reason for dismissing Mr Jacob was due to his conduct specifically between the period 9 and 26 June 2015.
[106] The respondent’s complaint that Mr Jacob hindered its investigation over this period is rejected.
[107] Mr Jacob attended the first meeting on 9 June 2015 without a support person and without understanding what the nature of the meeting was.
[108] He requested subsequent meetings be adjourned to enable him to consider the employment contract, which had not been provided to him and which was the basis for alleging he had been working at a second job without authorisation and in order to secure the requested Uber documentation.
[109] Mr Jacob was unable to secure the Uber documentation for the reasons explained to the employer in his correspondence and restated in the meeting on 23 June 2015.
[110] Mr Jacob was not working a second job without the requisite authority of the employer.
[111] Even if his actions amount to working a second job to the extent that he was mistaken in regard to his failing to appreciate he needed authority to do driving for his wife, the franchisee, on 11 April 2015 this was no more than an error of judgement based on a genuinely held mistaken belief that he was not working for Uber. Such conduct was not of a nature which constituted a valid reason for dismissal.
[112] Mr Jacob’s conduct does not provide a valid reason for the dismissal.
[113] In the alternative it is submitted that even if Mr Jacob’s actions are held to give rise to a valid reason for dismissal in the circumstances this was harsh, unjust or unreasonable.
[114] Mr Jacob had been employed for approximately 15 years and had through that tenure received only one warning in regard to his capacity, not his conduct. Mr Jacob is 52 years of age and in the current circumstances will find it difficult notwithstanding his best efforts to succeed in finding alternative employment.
[115] In all the circumstances the dismissal of Mr Jacob was unfair.
[116] Based on the evidence the Commission is urged to find that there was a valid reason to dismiss the applicant.
[117] The applicant repeatedly refused to provide a written request for permission to work a second job indeed he admitted this failure and that such approval was a term of his contract of employment.
[118] The applicant repeatedly refused to provide Uber documentation to the respondent claiming he could not do so because it was his wife’s property or was confidential. No evidence was tended to the Commission nor witnesses called to support the applicant’s assertion in this regard. The applicant conceded himself he did not know what it was about the documents he was asked to produce that made them confidential.
[119] In fact the evidence before the Commission indicates that the documentation regarding the applicant’s activities were really part of his business. It was the applicant who acquired an ABN around September 2014, which his wife allegedly used. He acquired an “F” endorsement on his driver’s license in November 2014 and had his driver photo, required for urban registration, taken in around November 2014.
[120] The Uber receipt presented for the trip on 11 April 2015 showed the applicant as the driver not his wife.
[121] The applicant conceded that the “F” endorsement was part of his business plan to operate a taxi business.
[122] Given this evidence his claim that the documents requested by his employer on a number of occasions were his wife’s document is implausible.
[123] Separately the applicant admits that he refused to produce documents pursuant to an order to produce issued by the Commission and did not bother to look for them. 11
[124] During the employer’s investigation it is submitted the applicant repeatedly refused to answer questions and obstructed the investigative process.
[125] The evidence of the respondent’s witnesses demonstrates that the through the course of meetings with the applicant he was neither transparent nor honest and was misleading. Their evidence was that Mr Jacob changed his story during their two meetings and avoided answering questions.
[126] Even if was accepted that Mr Jacob was working for his wife he knew when he was being asked about working for Uber that working for his wife was in essence one in the same. The applicant admitted that most people would describe his alleged working arrangements with his wife as working for Uber and recognise that such activities could impact on performing his job with the respondent.
[127] The employer was investigating whether there was a risk that Mr Jacob had a second job which was potentially impacting on his fatigue at work. The employer was also investigating whether personal leave entitlements were being abused. There were legitimate reasons for the respondent to be investigating these matters and it was entitled to do so and Mr Jacob was obliged to respond openly, honestly and cooperatively.
[128] The key witness for the applicant would have been his wife but he failed to call her and stated this was because they have separated. This is not a sufficient reason not to have called her given he relied on her unwillingness to provide him with documentation as an explanation for his failure to comply with the employer’s repeated requests for this material. This gives rise to an inference that his wife as a witness or the missing documentation would not have assisted his case.
[129] Mr Jacob was on notice from as early as 2014 that the respondent wanted to know if he had a second job.
[130] The respondent submits there was a valid reason to dismiss Mr Jacob. The evidence on his own admission is that Mr Jacob had worked as an Uber driver and did so without having sought permission as he was required under his contract. He had the opportunity to remedy this when this was raised with him but has chosen not to do so. The manner in which he conducted himself through the series of meetings with the employer was that he was not transparent and cooperative but rather conducted himself in an obstructive manner which has caused the employment relationship to become untenable.
[131] The dismissal of Mr Jacob was carried out in a procedurally fair manner and the respondent submits this application should be dismissed.
[132] Mr Jacob did finally admit that he was registered as an Uber driver, that he on 15 occasions has worked as an Uber driver and for that work received payment which was made into a family account.
[133] The respondent had concerns beginning in November 2014 that Mr Jacob may have been working on a second job. Specific information suggesting he was working as an Uber driver came to their attention and as a consequence they met with him about this issue on 9 June 2015.
[134] Mr Jacob was not honest and open in response to the questions he was asked and based on Mr Jacob’s most recent admissions as to his involvement with Uber there is no doubt he lied to his employer at that meeting.
[135] It was made clear to Mr Jacob that his contract of employment required him to seek permission before working in a second job. The health and safety concerns behind this were explained to him. He was invited to, and given the opportunity to, make an application to hold a second job and it is clear that had the he done this, dependent upon the amount of driving he proposed to do for Uber in future, permission may have been granted by his employer for him to do this other work as a second job. Mr Jacob has never sought to normalise work he might wish to do in future as an Uber driver by making such an application.
[136] Mr Jacob has repeatedly had the opportunity to provide records of his driving history with Uber to satisfy his employer that their concerns were unwarranted but has not done so. The evidence of Ms Kang which I have accepted and which was not challenged persuades me on the balance of probabilities that as a registered Uber driver Mr Jacob had access to such records should he have wished to obtain them and provide them to the employer. Mr Jacob’s refusal to provide these records and his spurious explanations for failing to do so raise doubts as to whether Mr Jacob has truthfully fully disclosed the extent of his past activity as an Uber driver.
[137] A possible explanation for Mr Jacob’s resistance to providing the records of his Uber driving history is that these would show he had been doing this work in late 2014 whilst he was on sick leave, or possibly would show he was driving more than the 15 occasions he has finally admitted to. Without those records of course this is just speculation.
[138] At the beginning of the meeting on 23 June 2015 Mr Jacob was warned a failure to be open and honest could lead to disciplinary action. He ignored this and continued to obstruct the employer’s reasonable enquiries into the extent of his work as an Uber driver and again was not open and honest in his responses. Mr Jacob also responded aggressively and with personal abuse towards the respondent’s staff.
[139] The final explanation Mr Jacob had provided to his employer demonstrates his previous dishonesty. The explanation put by his lawyer on his behalf that he was confused about the meaning of “a second job” and he did not think working to assist his wife in her business was employment, even though he was being paid for this, is not credible in circumstances where Mr Jacob has actively and repeatedly attempted to downplay the extent of his activity as an Uber driver to the point of initially denying he had any involvement at all with Uber which was a lie.
[140] Section 387 of the Act sets out the matters the Commission is to have regard for in determining whether the dismissal of Mr Jacob was harsh, unjust or unreasonable.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”
[141] For at least six months Mr Jacob was undertaking other work outside his employment with the respondent, contrary to the requirements in his contract to request permission to work in a second job before undertaking any such work and contrary to the Employee Code of Conduct. This conduct is a valid reason for his dismissal.
[142] During the investigation into this issue Mr Jacob deliberately lied to his employer on a number of occasions. Mr Jacob was not transparent or honest in response to his employer’s reasonable enquiries and was at times deliberately misleading. This conduct is a valid reason for his dismissal.
[143] In response to reasonable requests to provide records relevant to his employer’s concerns Mr Jacob obstructed this enquiry by unreasonably refusing to provide those records of his driving history that were readily available to him. This conduct is a valid reason for his dismissal.
[144] Mr Jacob was notified towards the end of the meeting on 23 June 2015, prior to his dismissal, of the reasons the respondent was considering dismissing him. This was confirmed in writing the following day. Prior to the decision to terminate being made on 26 June 2015 the employer met with Mr Jacob and again explained the reasons why they were considering dismissing him.
[145] The show cause letter provided to Mr Jacob on 24 June 2015 afforded him an opportunity to respond to the reasons for which he was dismissed before a final decision was taken to dismiss him. Mr Jacob took up that opportunity by responding to his employer’s show cause letter in writing through his legal representative. Mr Jacob also at the meeting on 26 June 2015 had an opportunity, assisted by his support persons, to further responded to the reasons the employer was considering dismissing him before they made a final decision to do so.
[146] There was no unreasonable refusal by the respondent to deny Mr Jacob the right to have a support person present at any discussions.
[147] The respondent is a large enterprise which does have dedicated human resource specialists.
[148] The procedural process undertaken leading up to the decision to dismiss was consistent with this and appropriate in the circumstances.
[149] Mr Jacob had been employed for 14 years at the time of his dismissal. His service however was not unblemished. The evidence is that there had been some difficulties with his work performance resulting in a counselling session in May 2014. Further concerns about his performance resulted in Mr Jacob having been placed on a PIP in October 2014 which continued in place at the time of his dismissal.
[150] After the first meeting on 9 June 2015 even though Mr Jacob’s employer was concerned he was not being fully honest with them about his involvement with Uber, they encouraged him to normalise his Uber work by completing a formal request to hold a second job. They wrote to him and said he should advise what hours per week he expected to drive and the days and the shift times. They asked him to be realistic in providing the information “… as it will, if accepted, serve as an agreement between yourself and WAN.”
[151] It is relevant to note here that Mr Jacob was represented throughout this process. Initially he had the assistance of representatives of the union and later he had the additional assistance and guidance of a lawyer.
[152] The employer quite plainly was willing to at least attempt to negotiate an agreement with Mr Jacob so he could continue to do some other work as an Uber driver in the future. There was evidence that other employees had such agreements in place allowing them to work second jobs.
[153] However Mr Jacob never completed a request to hold a second job. Mr Jacob ignored the opportunity to resolve this on a basis acceptable to both him and his employer. Instead Mr Jacob continued down a path of actively denying the truth and deliberately misleading his employer. He did so even after being warned he must be open and honest and not withhold information. Mr Jacob in this case was very much the architect of his own demise.
[154] The employer’s Senior Managers felt that they would not be able to trust Mr Jacob to do the right thing in the future because he had repeatedly been deliberately untruthful.
[155] In all the circumstances the dismissal of Mr Jacob was neither harsh, unjust nor was it unreasonable. Mr Jacob has not been unfairly dismissed.
[156] This application will be dismissed and an order to that effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
N Draper of Granich Partners for the applicant.
J Raftos of Counsel for the respondent.
Hearing details:
2016.
Perth:
March 23.
Final written submissions:
Applicant, 2 May 2016.
Respondent, 18 April 2016 and 16 May 2016.
1 Transcript at PN1094 and PN1097.
2 Ibid., at PN1102.
3 Ibid., at PN403 and PN404.
4 Ibid., at PN329 to PN340.
5 Ibid., at PN283 to PN296.
6 Ibid., at PN291 to PN296.
7 Ibid., at PN381 to PN385.
8 Ibid., at PN386 to PN393.
9 Exhibit A1 at paragraphs 13 to 21.
10 Exhibit R3, Attachment CH2E.
11 Transcript at PN394 and PN400.
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