| [2019] FWC 3817 [Note: a variation has been issued to this document] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Cody Glenane
v
Tag Turfing PTY LTD
(U2018/11663)
COMMISSIONER SIMPSON |
BRISBANE, 3 JUNE 2019 |
Application for an unfair dismissal remedy.
Application for unfair dismissal – applicant dismissed for serious misconduct – applicant dismissed eight months after incident – applicant dismissed while on WorkCover – Small Business Fair Dismissal Code does not apply – dismissal unfair
[1] This matter concerns applications under s.394 of the Fair Work Act 2009 (the Act) by Mr Cody Glenane who alleged that the termination of his employment with Tag Turfing Pty Ltd (the Employer) was unfair.
[2] Mr Glenane submitted he commenced employment with Tag Turfing on 1 May 2015, however the Employer submitted Mr Glenane commenced employment on 12 April 2016. The Employer submitted the first payslip to Mr Glenane on 12 April 2016. The Applicant was unable to provide any supporting evidence to dispute this.
[3] Mr Glenane was employed as a supervisor on a full-time basis. It is not disputed Mr Glenane is eligible to bring an unfair dismissal application.
[4] The matter was listed for a Hearing in person on 20 March 2019 in Brisbane. The Applicant failed to attend the Hearing, and after considering submissions from the Respondent, I decided to adjourn the matter and relist it for a telephone Hearing on 24 April 2019. Mr Glenane appeared by telephone on his own behalf, and Mr Brett Taggart, Managing Director, attended by telephone on behalf of the Employer.
[5] Mr Glenane received a written warning on 9 February 2018 that read as follows:
“Dear Cody Glenane
Warning letter
I am writing to you about your conduct during your employment with Tag Turfing Pty Ltd.
On 06/02/2018 you talked on phone with Brett Taggart Managing Director. During this conservation you were advised that your conduct has been unsatisfactory, and that immediate improvement is required. In particular you were advised that talking negatively and slandering to customer about Tag Turfing and Brett Taggart is unacceptable behaviour (sic). On 05/02/2018 customer reported unprofessional behaviour (sic) to me directly, and again to Darryl onsite on 06/02/2018.
In the conversation you were asked if you had anything you wished to say or to respond to the situation and you stated you were “just venting, as you have worked with customer through Tag for a long time”.
After considering the situation it is expected that your conduct improves and specifically that you do not slander or talk negatively about Tag Turfing management and employees, customers (farms), clients (landscapers etc..) to anyone except your supervisor Darryl Mison or Brett Taggart. As discussed if you ever have any problems, suggestions or misunderstandings in future please talk to Darryl Mison or myself Brett Taggart, so we can have mutual understanding and address any issues. As discussed on phone it is very unprofessional and damaging to Tag Turfing Pty Ltd as a professional turf laying company.
This is your first warning letter. Your employment may be terminated if your conduct does not improve by 09/05/2018.
I propose that we meet again on 09/03/2018 or when cleared for light duties on return to work to review your progress. Please let me know if this time is convenient to you. If you wish to respond to this formal warning letter please do so by contacting me on [phone number redacted] or by replying in writing or email.”
[6] Mr Glenane submitted the warning had a probation period of 3 months, which had expired on 10 May 2018.
[7] Mr Glenane said that prior to receiving this warning letter he sustained a knee injury and had an operation in February 2018. He said he then went on WorkCover and had a further operation in March 2018.
[8] Mr Glenane said that from March onwards, he provided his employer with updates on a monthly basis in relation to his progress as he had monthly doctor appointments.
[9] On the 25 October 2018, Mr Glenane sent a text message to the Employer asking if there was still a position available for him as he had been cleared for light duties by his surgeon. That same day, Mr Glenane said he was terminated by way of text message from Mr Taggart. Mr Glenane provided a screen shot of the text message which read as follows:
“Hi Cody.
As a result of your serious misconduct before you had surgery (park ridge etc..) Tag doesnt (sic) have a position for you.
I was in contact with fair work and got advice your actions warranted an instant dismissal but as u (sic) were on leave for rehab didnt (sic) follow thru (sic) at the time.
Your lack of responsibility to Tag during rehab also demonstrated it is best you not continue employment with Tag.
I told workcover (sic) this earlier this week. when (sic) did you get cleared for light duties?”
[10] Mr Glenane said his dismissal was unfair as he was terminated based on a warning that expired six months prior to his dismissal and the matter in relation to his alleged misconduct had already been dealt with. Mr Glenane also submitted that the employer continued to change the reason for his dismissal.
[11] The Employer provided two reasons for Mr Glenane’s dismissal in its Form F3 Response including “Conduct that causes serious risk to the reputation of the business” and “During rehabilitation lack of interest and responsibility to company to keep informed about rehabilitation progress.”
[12] The Employer submitted Mr Glenane’s conduct amounted to serious misconduct as it caused a serious risk to the reputation of the business. The Employer submitted that at the time of the warning, Mr Taggart did not realise Mr Glenane’s actions may have warranted cause for instant dismissal.
[13] Mr Taggart said that he sent a reply text to Mr Glenane advising there would be no position for him based on the above reasons and requested a doctor’s certificate. Mr Taggart said he received the doctor’s certificate on 30 October 2018, and then messaged Mr Glenane requesting him to come in for a meeting.
[14] Mr Taggart said Mr Glenane refused to meet with him, as his employment had already been terminated and he didn't need to. The Employer submitted this was the opportunity to discuss termination and possible light duties for the notice period.
[15] Mr Taggart gave evidence that at the time Mr Glenane’s employment was terminated the company had 13 employees. Although Mr Taggart did not directly raise a jurisdictional objection, I must consider whether the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC).
[16] In relation to summary dismissal, the SBFDC sets out as follows:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
[17] Mr Glenane was summarily dismissed on 25 October 2018 and did not receive notice pay. The Employer submitted that Mr Glenane’s conduct in February 2018 (the Incident) amounted to serious misconduct and therefore warranted summary dismissal. Mr Taggart said he waited until October to dismiss Mr Glenane as he had not been aware of his rights, and Mr Glenane had been on WorkCover.
[18] I am not satisfied the Employer believed on reasonable grounds that the employee’s conduct was sufficiently serious to justify immediate dismissal. On Mr Taggart’s own evidence, he did not hold this belief immediately following the Incident. At that time, the Employer did not dismiss Mr Glenane, but rather provided him with both a verbal and written warning.
[19] I am not convinced that upon receiving advice from the Fair Work Ombudsman that Mr Glenane’s conduct may have justified immediate dismissal back in February, that this then led to Mr Taggart forming a reasonable belief that some eight months later Mr Glenane’s conduct justified immediate dismissal.
[20] I am not satisfied that Mr Glenane was summarily dismissed in accordance with the SBFDC. The remaining part of the SBFDC pertaining to other dismissals has no application in this matter as it is accepted that the dismissal was a summary dismissal.
s.387
[21] The Employer submitted Mr Glenane was dismissed for serious misconduct following the Incident that occurred in February 2018. The Employer submitted Mr Glenane was supervising workers on a jobsite, and was using very bad language at elevated levels in front of the customer.
[22] The Employer submitted that the customer told Mr Glenane to stop; however when the customer returned to the site Mr Glenane was still using bad language and slandering Mr Taggart in front of workers and the customer. The Employer submitted Mr Glenane continued to act in an unprofessional manner until the customer told him to leave the site.
[23] The Employer provided a witness statement from Mr Greg Lawrence, the customer who was present at the incident. Mr Lawrence’s version of events seemed consistent with that of the Employer. Mr Glenane advised he did not require this witness to be available for cross examination, meaning Mr Lawrence’s evidence was uncontested.
[24] The Employer submitted this behaviour provided a valid reason for dismissal, because it had caused a serious risk to the reputation of the business.
[25] Mr Taggart gave evidence that he wasn’t aware of his rights as an employer at the time of the incident and that is why he sent the warning letter. Mr Taggart said he did not become aware of his right to summarily dismiss an employee for serious misconduct until approximately September 2018. He said he did not exercise his right to dismiss Mr Glenane until he returned to work, because he did not want to dismiss Mr Glenane whilst he was on WorkCover.
[26] Mr Glenane disputed that his alleged misconduct in February provided a valid reason for dismissal. He submitted that the warning he received in relation to this incident expired six months prior to his dismissal, and said his alleged misconduct had already been dealt with.
[27] Mr Glenane said he had a telephone conversation with Mr Taggart on 6 February regarding the Incident. Mr Glenane said that upon hearing that he had been accused of slandering the company, he explained to Mr Taggart that this was not his intention, and that he had simply been “venting”.
[28] Mr Glenane received a written warning from the Employer about the Incident and was advised that his employment would be in jeopardy if he did not improve by 9 May 2018. There is no evidence to suggest Mr Glenane’s conduct did not improve, or that he engaged in any further misconduct after this time.
[29] I am satisfied Mr Glenane engaged in misconduct as alleged by the Employer in February 2018, however I also accept Mr Glenane’s submission that the misconduct had already been dealt with in the form of a warning, and that no further misconduct occurred. I am therefore not satisfied that Mr Glenane’s conduct in February 2018 amounted to a valid reason for dismissal.
[30] The Employer also submitted that Mr Glenane’s failure to provide it with regular updates in relation to his progress whilst on WorkCover amounted to a valid reason for dismissal.
[31] The Employer submitted that on 25 October, when Mr Glenane sent Mr Taggart a text message, this was over one month since Mr Glenane last contacted the Employer despite repeated requests from the Employer to be kept informed of his rehabilitation.
[32] Mr Glenane disputed this and said he regularly kept the Employer informed about his progress. Mr Glenane said that since being on WorkCover, he had a doctor’s appointment once a month. He said that before each appointment, he would call the Employer to inform them he was going to see the doctor.
[33] Mr Glenane said on one occasion he did not go to the monthly doctor’s appointment due to his daughter’s illness and this was why he did not contact the Employer at this time.
[34] I gave Mr Taggart an opportunity to cross examine Mr Glenane while he was on oath in relation to this evidence however Mr Taggart said he did not have any questions.
[35] The Employer did not appear to give any specific evidence to support its argument that Mr Glenane failed to provide updates in relation to his injury. I accept Mr Glenane’s evidence that he notified the Employer each month before his doctor’s appointments, and therefore do not find that this provides a valid reason for dismissal.
[36] In summary, I find that the Employer did not have a valid reason to dismiss Mr Glenane.
[37] Mr Glenane argued that the reason for his dismissal kept changing. He said the Employer kept shifting its position and the reasons for his termination were not made clear to him.
[38] Mr Taggart submitted Mr Glenane was notified of the reasons in the text message sent 25 October 2018.
[39] The text message sent on 25 October 2018 indicates the reasons for Mr Glenane’s dismissal as the ones relied on by the employer. I am therefore satisfied Mr Glenane was notified of the reasons for his dismissal.
[40] Mr Glenane said he did not agree to attend a meeting with Mr Taggart to discuss his dismissal, because he had already been dismissed. Mr Glenane said he was not given any opportunity to respond to the allegations before his dismissal.
[41] Mr Taggart conceded Mr Glenane was only given an opportunity to respond to the reasons for termination after he had already been dismissed.
[42] I am satisfied Mr Glenane was not given an opportunity to respond.
[43] There was no evidence of a refusal for Mr Glenane to have a support person present for the discussion concerning his alleged misconduct in February 2018. However there was no meeting as such to discuss the Employer’s decision to move to dismissal.
[44] Mr Glenane’s employment was not terminated for unsatisfactory performance and therefore this is a neutral consideration.
[45] Mr Taggart gave evidence that as the Employer is a small business and the work is seasonal, there are no dedicated Human Resources personnel in the company. Mr Taggart conceded the text message he sent to Mr Glenane on 25 October 2018 was not very professional and was sent in the moment.
[46] Mr Glenane did not make any submissions on this point.
[47] The Employer is a small business, and I am satisfied that if it had the means to employ HR specialists it is likely the process of dismissing Mr Glenane would have been less flawed.
[48] I have taken into account all of the matters that I am required to in accordance with s.387 of the Act. After weighing all the evidence and for reasons set out above, I have concluded that Mr Glenane’s dismissal was harsh, unjust or unreasonable. I will now turn to the question of remedy.
[49] Mr Glenane did not seek reinstatement. Having considered the evidence, I am of the view that there has been an irrevocable breakdown in the working relationship, and therefore reinstatement would be inappropriate and a remedy of compensation should be ordered.
[50] Mr Glenane was cleared for light duties, and submitted that his knee injury would not have prevented him from doing most of the tasks required of a supervisor. He said as a supervisor he was not required to do much heavy lifting or physical tasks.
[51] Mr Taggart did not dispute that there would have been a position available for Mr Glenane despite his injury. He gave evidence that the company was in peak season during October, and there would have been plenty of work for Mr Glenane had he not been terminated for misconduct.
[52] Applying the formula set out in Sprigg v Paul’s Licensed Festival Supermarkets, 1 I am of the view Mr Glenane would have likely continued to work for the Employer for approximately four more months during the peak season until February 2019.
[53] Due to the increasingly strained relationship between Mr Glenane and Mr Taggart, I am of the view that it is not likely the employment relationship would have continued past this time.
[54] This amounts to a period of approximately 16 weeks. Mr Glenane was earning $1000 per week gross, coming to a total of $16,000.
[55] It is necessary to deduct the amount of worker’s compensation Mr Glenane received.
Mr Glenane said his WorkCover payments were equivalent to his net income of $817 per week and that he continued receive these payments after his dismissal until 22 January 2019.
[56] Mr Taggart gave evidence that he had contacted someone from WorkCover who advised him Mr Glenane’s payments extended into February. Mr Glenane denied this.
[57] There has not been any evidence filed by either party to determine when Mr Glenane’s WorkCover payments ceased. However, I am inclined to accept Mr Glenane’s submission that they ceased on 22 January 2019.
[58] Mr Taggart’s evidence on this point was quite vague and he was not able to provide the name of the person he spoke to regarding this, nor a specific time that he alleged the payments stopped. Mr Glenane however gave first hand evidence and was able to provide the Commission with a specific date when payments ceased.
[59] I therefore calculate that Mr Glenane received WorkCover for approximately 13 weeks, totalling $10,621. This brings the amount of compensation to $5,379.
[60] Mr Glenane said he has not received any other income since his dismissal on 25 October 2018 so it is not necessary to make any further deductions for remuneration.
[61] It is not necessary to make any deductions for remuneration likely to be earned.
[62] I do not consider Mr Glenane’s length of service a basis to further reduce the amount. Further, I will not attempt to assess this amount net of taxation, but simply require that this amount be paid subject to any deduction of taxation required by law.
[63] Mr Glenane engaged in misconduct that ultimately contributed to his dismissal. For this, I deduct 25%. This leaves a total of $4,034.25.
[64] Mr Glenane gave evidence that he has been unable to secure alternative employment. He gave evidence that it has been difficult as he is only fit for light duties. There will be no deduction made under s.392(2)(d).
[65] The Employer has not provided the Commission with any evidence to suggest the amount of $4,034.25 would have an impact on the viability of its enterprise. I am not inclined to the view this is a factor for consideration.
[66] The amount of compensation proposed is under the compensation cap. Further, I do not consider that there is any reason for compensation to be made by way of instalments.
[67] There are no other matters that I consider relevant. I intend to issue an order that Tag Turfing Pty Ltd pay to Mr Cody Glenane the sum of $4,034.25 gross taxed according to law plus superannuation at the rate of 9.5% on the amount within 21 days.
COMMISSIONER
Appearances:
Mr C. Glenane appearing on his own behalf.
Mr B. Taggart appearing for the Respondent.
Hearing details:
2019,
Brisbane:
24 April
Printed by authority of the Commonwealth Government Printer
<PR708946>
1 Sprigg v Paul’s Licensed Festival Supermarkets (1998) 88 IR 21.