| [2017] FWC 5224 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jason Nicolaou
v
Architectural Project Specialists
(U2017/6156)
DEPUTY PRESIDENT BOOTH |
SYDNEY, 13 OCTOBER 2017 |
Application for an unfair dismissal remedy.
[1] Mr Jason Nicolaou was employed by Architectural Project Specialists (APS) as an installer from late 2013 until his summary dismissal on Friday, 19 May 2017. APS is a manufacturer and installer of commercial windows and doors. Mr Nicolaou has made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act (2009) Cth (the Act) for an unfair dismissal remedy. APS deny that Mr Nicolaou was unfairly dismissed.
[2] The hearing was conducted by telephone on 11 September 2017. At the hearing Mr Nicolaou represented himself and gave evidence. Ms Jamie Kerry, Business Manager, represented and gave evidence for APS. Mr John Nigem, Managing Director, made submissions on behalf of APS.
[3] Mr Nicolaou and APS had both failed to comply with the initial directions set by the Commission and consequently a procedural hearing was conducted on 1 September 2017. At that hearing new directions were set. In compliance with those directions, Mr Nicolaou provided a two page hand written submission and no documentary evidence. APS resubmitted the Form F3 that had been provided following Mr Nicolaou’s application made on a Form F2. During the hearing both Mr Nicolaou and APS said that they wanted to submit new material. They were given to 18 September 2017 to do so, with any response to each other’s material to be provided by 25 September 2017. Neither Mr Nicolaou nor APS provided any further material. I have made my decision based on their submissions, along with the evidence and oral submissions made in the hearing on 11 September 2017.
[4] It is agreed that APS employed nine employees at the time of Mr Nicolaou’s dismissal. Accordingly APS is a small business employer pursuant to s.23 of the Act. The question that I must address at the outset is: “Did APS comply with the Small Business Fair Dismissal Code (the Code)?”
[5] If the answer to this question is yes, then Mr Nicolaou’s application must be dismissed. This is because pursuant to s.385 of the Act a person is unfairly dismissed if the person has been dismissed, and the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code and the dismissal was not a case of genuine redundancy. If any one of these four conditions is not satisfied then a person has not been unfairly dismissed.
[6] I have decided that APS did not comply with the Code and therefore I considered whether Mr Nicolaou’s dismissal was unfair pursuant to s.397 of the Act. I have decided that Mr Nicolaou’s dismissal was harsh, unjust and unreasonable and therefore unfair. I am satisfied that it would be inappropriate to reinstate Mr Nicolaou and that an order for the payment of compensation is appropriate in all the circumstances. I have issued directions for the parties to make submissions concerning the amount of compensation to be paid to Mr Nicolaou.
[7] Section 388 of the Act states that a person’s dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC) if:
“(2)(b) The employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
[8] The SBFDC is as follows:
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
[9] APS summarily dismissed Mr Nicolaou so I must consider whether APS believed on reasonable grounds that his conduct was sufficiently serious to justify immediate dismissal. APS summarily dismissed Mr Nicolaou on the morning of 19 May 2017. Mr Nigem left him a voicemail however Mr Nicolaou did not receive it as his phone does not register voicemail. Mr Nigem also sent a text which was received by Mr Nicolaou. Mr Nicolaou understood from the text that he had been dismissed.
[10] The reason APS dismissed Mr Nicolaou was stated during the hearing by Ms Kerry as follows:
“There was no contact for a period of a number of days, and obviously Jason was in possession of a company vehicle and tools that are crucial to the running of the business, and as - you know, we are a small business, it's crucial that we have those items and the vehicle, and we -John couldn't afford to keep that happening and going on, because it was affecting - it was affecting the running of the business, it was affecting, you know, the sites, it was affecting - I mean when I say it's affecting the running of the business it's affecting every aspect and avenue that the business runs in.” 1
[11] Mr Nigem told the Commission that Mr Nicolaou was expected on site at Kogarah at 6.50am on Wednesday, 17 May 2017. He said that he usually arrived at site about 7.30am – 8am and the supervisor reports to him on “people who have not shown up”. 2 He said that he called Mr Nicolaou on his mobile phone and sent him “multiple texts” and did not receive a response. No phone records or copies of text messages were provided to the Commission.
[12] Mr Nicolaou gave evidence that he experienced the effects of food poisoning from the early hours of Wednesday, 17 May 2017, which caused him to be bedridden from 17-19 May 2017. He gave evidence that he sent a message early on Thursday morning to APS saying “I can’t make it in” and then the credit on his mobile phone ran out. 3
[13] Initially Mr Nigem said that no such message was received 4 but he did receive a text at 6:47pm on Thursday, 18 May 2017, from Mr Nicolaou stating the hours Mr Nicolaou worked for payroll purposes. Further on in the hearing, Mr Nigem said that he had received a text at 6:.24am on 18 May 2017 from Mr Nicolaou that said “Been feeling shit bro not going to make it. Sorry.”5
[14] For the first time in this matter, and while making submissions concerning Wednesday, 17 May 2017, Mr Nigem told the Commission that Mr Nicolaou had left site at 12:10pm on Monday, 15 May 2017 and had not worked on Tuesday, 16 May 2017. Mr Nicolaou had no recollection of whether this occurred.
[15] Mr Nigem said that he sent Mr Nicolaou a text on Thursday night, 18 May 2017, at 8.10pm saying “Where are you going to be tomorrow?” He received no response and again texted “If you’re not at Kogarah tomorrow you’re out. You hand in your keys, no excuse, I won’t accept any more excuses.” He said he received no response until he received an incoherent text consisting of a series of random capital letters at 2.30am. Mr Nicolaou gave evidence that he had no idea about nor had he intended to send that later text. I note that Mr Nicolaou had earlier said that he had no mobile phone credit from Thursday morning to Friday afternoon.
[16] Mr Nigem sent the text dismissing Mr Nicolaou at 7am on Friday, 19 May 2017. This text said, “I want the car and tools handed back in, we’re moving on”. Mr Nicolaou gave evidence that he read this text at 9:00am that morning. Mr Nigem said that he sent a further text at 8.18am saying, “You embarrassed me and you’re setting a bad example for everyone else”. Mr Nicolaou said he was not able to reply immediately as he was out of credit on his phone and he replied that afternoon.
[17] It was Mr Nicolaou’s evidence that in response to the text dismissing him he took the ute and parked it in “my old street”, Orwell St Blacktown, and returned to his mate’s house. After this a constable from the NSW Police called him and he told her where the ute was. Mr Nicolaou had left the keys in a stuffed toy underneath the body of the car. He did not tell Mr Nigem where the keys were until Saturday, 20 May 2017.
[18] APS says that late on 19 May 2017, Mr Nigem received a text message from Mr Nicolaou stating he was not willing to provide the keys to the vehicle owned by APS that he was using. APS says it was after this that they advised Mr Nicolaou, by text message, that they would have no option but to contact the police to notify a ‘stolen’ vehicle. APS says that after sending that message, Mr Nigem received a number of racially abusive text messages from Mr Nicolaou. No such texts were produced to the Commission.
[19] Despite Mr Nicolaou’s assertion that he informed Mr Nigem via the NSW Police about the location of the work vehicle, APS maintains that they were told the whereabouts of the car by ‘a mutual friend’. Mr Nigem and Ms Kerry say they attended an address in Blacktown, Sydney on 22 May 2017 and called a locksmith to gain access to the vehicle. They noted that none of the tools that Mr Nicolaou had used to perform his job were in the vehicle.
[20] I note that all of this occurred after Mr Nicolaou was dismissed and was not the reason for dismissal.
[21] I conclude that Mr Nicolaou was dismissed because of his non-attendance at work on Wednesday, 17 and Thursday, 18 May 2017 and APS’s view that this occurrence was part of a pattern of behavior.
[22] There was some reference to Mr Nicolaou leaving work early on Monday, 15 May 2017 and complaints about his conduct on site, however these instances were advanced tangentially in submissions and there is no evidence at all to support them.
[23] For APS to have complied with the SBFDC, they would need to have believed ‘on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal’.
[24] I do not have to make a finding on the evidence as to whether the conduct occurred, however on this occasion it is agreed between the parties that Mr Nicolaou did not appear at work and there was no contact from him for 24 hours.
[25] For APS to believe on reasonable grounds that Mr Nicolaou’s conduct was serious enough to warrant summary dismissal, they must establish that they believed that the conduct was by Mr Nicolaou, the conduct was serious and the conduct justified immediate dismissal. It is clear that APS did indeed hold those beliefs.
[26] However APS must also demonstrate that they had reasonable grounds to hold the belief. I note the examples in the SBFDC include theft, fraud, violence and serious breaches of occupational health and safety procedures as behaviours that may justify summary dismissal. I do not consider Mr Nicolaou’s conduct in not appearing for work and being uncontactable for a period of 24 hours to be of the same character as these examples. I do not consider that APS had reasonable grounds to hold the belief that Mr Nicolaou’s conduct justified summary dismissal.
[27] I also note that the SBFDC provides that ‘for a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police.’ I note that in this case, APS did call the NSW Police to report a stolen vehicle. I note that they did so after they had dismissed Mr Nicolaou. However it is clear that the vehicle was not stolen but rather had been used, up to that point, by Mr Nicolaou in the performance of his duties.
[28] APS cited, in effect, a pattern of behaviour on Mr Nicolaou’s part in not attending for work. Mr Nicolaou denies this pattern of behaviour. APS provided no evidence of this behaviour. Mr Nicolaou denies ever being warned about such behaviour. He gave evidence that he was only asked whether he “needed any help”. Such a question is consistent with the circumstances outlined by APS but I am not satisfied that they had reasonable grounds to hold the belief that Mr Nicolaou’s conduct was serious enough to warrant summary dismissal.
[29] I find that APS did not comply with the Small Business Fair Dismissal Code.
[30] Having found that the dismissal did not comply with the SBFDC, I must also consider some other initial matters pursuant to sections 385 and 396 of the Act.
[31] I am satisfied Mr Nicolaou made his application within 21 days after the dismissal took effect, as required by subsection 394(2)(a) of the Act.
[32] I am satisfied that Mr Nicolaou is a person who was protected from unfair dismissal under section 382 of the Act. Mr Nicolaou had completed a period of employment with APS greater than the minimum required period. As I have found that APS is a small business employer, that minimum period is one year. Therefore, Mr Nicolaou’s application also satisfies subsection 382(b) of the Act.
[33] There is no suggestion that Mr Nicolaou’s dismissal was a case of genuine redundancy.
[34] Turning to section 385 of the Act, it is agreed between the parties that Mr Nicolaou’s employment was terminated on the initiative of APS. That is, Mr Nicolaou was dismissed within the meaning of subsection 386(1)(a) of the Act. It therefore remains for me to consider whether APS’s dismissal of Mr Nicolaou was harsh, unjust or unreasonable pursuant to s.387 of the Act.
[35] I have already concluded that Mr Nicolaou was dismissed because of his non-attendance at work on Wednesday, 17 and Thursday, 18 May 2017 and APS’s view that this occurrence was part of a pattern of behavior. I must consider whether this conduct occurred and whether the conduct that did occur provided a valid reason for Mr Nicolaou’s dismissal.
[36] Mr Nicolaou admits to his non-attendance at work on Wednesday, 17 and Thursday, 18 May 2017.
[37] Mr Nicolaou does not concede that this non-attendance was consistent with a pattern of behavior.
[38] Mr Nigem said that he had warned Mr Nicolaou about his poor attendance “a hundred times”. 6
[39] There is no evidence of Mr Nicolaou’s poor attendance record. It would have been a simple matter to produce time and wages records to substantiate this contention however despite APS being given an opportunity to provide more information to the Commission after the hearing, nothing was provided. 7
[40] I conclude that Mr Nicolaou was absent from work without notice for 24 hours. Does this absence provide a valid reason for dismissal?
[41] A valid reason will be one that is sound, defensible and well founded, and not capricious, fanciful, spiteful or prejudiced, in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. 8
[42] The occurrence of illness preventing an employee from coming to work is contemplated by the National Employment Standards and Modern Awards.
[43] Although Mr Nigem could not tell the Commission the name of the award that covered Mr Nicolaou, I think that it is probable that the Building and Construction General On-site Award 2010 or the Joinery and Building Trades Award 2010 applied. In either case personal/carer’s leave entitlements are as provided for in the NES.
[44] Division 7 of the Act provides for personal/carer’s leave of 10 days per annum accruing from year to year. The Act provides for an employee to give notice of the taking of leave as soon as practicable (which may be a time after the leave has started) and that the employee must advise the employer of the period, or expected period, of the leave.
[45] It is a breach of section 352 of the Act to dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. A reason that is unlawful could not be a valid reason.
[46] In these circumstances I find that APS did not have a valid reason for dismissing Mr Nicolaou.
[47] Mr Nicolaou was notified by text on 19 May 2017 that his employment was terminated. He had been told by text on the night of 18 May 2017, in effect, that his employment was in jeopardy. The reason for dismissal was not squarely put in the text that dismissed him, although the Thursday evening text was in terms that inferred that Mr Nigem wanted him at work the next day or he would be dismissed. Taken together it could be said that Mr Nicolaou was notified of the reason for dismissal. On its own, this factor does not weigh in favour of the dismissal being unfair.
[48] Mr Nicolaou was not given a reasonable opportunity to respond to the reason because he received a text on the evening of one day and was dismissed by text on the morning of the following day. Mr Nigem was aware by the time he sent the text on the Thursday evening that Mr Nicolaou was ill. This did not afford Mr Nicolaou the opportunity to respond to the reason given for considering his dismissal and weighs in favour of the dismissal being unfair.
[49] There was no meeting at which a support person could have accompanied Mr Nicolaou. This factor is not relevant.
[50] The reason for Mr Nicolaou’s dismissal relates to his non-attendance at work. This reason straddles the categories of conduct and performance. Mr Nicolaou contends that he was never warned or counselled about unplanned absence. Mr Nigem says he was. In the absence of any evidence, I am not satisfied that he was warned about his non-attendance at work or indeed that Mr Nicolaou had a record of non-attendance at work. This factor weighs in favour of the dismissal being unfair.
[51] This factor is appropriate to be considered when an employer is small and there is an absence of rigor in the process of dismissal. This is certainly the case in this matter. The factor will always be weighed against the whole circumstance of the dismissal. In this case the lack of procedural fairness accompanying the dismissal could not be excused by the size of the employer. I do not consider that this weighs in favour of the dismissal being fair.
[52] APS does not have human resource management specialists or expertise. However the lack of procedural fairness accompanying the dismissal could not be excused by the absence of human resource management specialists. I do not consider that this weighs in favour of the dismissal being fair.
[53] APS did not afford Mr Nicolaou procedural fairness throughout the process of dismissal. A number of the factors above weigh in favour of Mr Nicolaou’s dismissal being considered unfair.
[54] Mr Nicolaou was summarily dismissed for serious misconduct and I have found that there was no valid reason for the dismissal. That the response of APS to the conduct was disproportionate is clear from this finding. This is a relevant consideration and weighs in favour of the dismissal being considered unfair.
[55] I also take into account the fact that Mr Nicolaou has not been able to secure permanent employment at a similar rate of pay since his dismissal.
[56] I have found that there was no valid reason for APS to dismiss Mr Nicolaou. I have found that APS did not afford Mr Nicolaou procedural fairness throughout the process of dismissal. The absence of a valid reason for the dismissal strongly weighs in favour of the dismissal being considered harsh, unjust and unreasonable and the lack of procedural fairness confirms this conclusion. I find that APS’s dismissal of Mr Nicolaou was harsh, unjust and unreasonable and therefore unfair.
[57] Whilst reinstatement is the primary remedy under the Act, 9 I note Mr Nicolaou does not seek reinstatement and APS argues strongly against reinstatement.
[58] Mr Nicoloau says “we wouldn’t have the same respect for each other” 10. Mr Nigem says “The builders wouldn’t allow him onsite”11.
[59] Throughout the course of this matter I witnessed the outward manifestation of the breakdown of the relationships between Mr Nicolaou, Ms James and Mr Nigem. Indeed I would go as far as to say that if they were required by the Commission to work together again, Mr Nicolaou and Mr Nigem might come to blows. I note that APS is a small business and relationship breakdowns in a small workplace can have more devastating consequences than in a large workplace where people can work separately.
[60] In these circumstances I am satisfied that the reinstatement of Mr Nicolaou with APS would be inappropriate. I consider that it is appropriate in all the circumstances of the case for me to make an award of compensation to Mr Nicolaou. 12
[61] Directions will be issued for the parties to make submissions concerning the amount of compensation to be paid to Mr Nicolaou.
DEPUTY PRESIDENT
Appearances:
Mr J Nicolaou, self represented
Ms J Kerry and Mr J Nigem for the Respondent
Hearing details:
2017.
Sydney:
September, 11.
1 Transcript PN66
2 Transcript PN135
3 Transcript PN159
4 Transcript PN169
5 Transcript PN174
6 Transcript PN303
7 Transcript PN352-353, 366 and 374
8 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
9 s.390(3)(a) Fair Work Act 2009
10 Transcript PN336
11 Transcript PN339
12 s.390(3)(b) Fair Work Act 2009
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