| [2020] FWC 5809 |
| FAIR WORK COMMISSION |
DECISION NO. 2 |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
David Paul Neville
v
Lake Fox Limited T/A Rocky’s Own Transport Company
(U2020/3651)
COMMISSIONER CAMBRIDGE |
SYDNEY, 30 OCTOBER 2020 |
Unfair dismissal - various incidents of misconduct - valid reason for dismissal - no significant procedural deficiencies - dismissal not harsh, unjust or unreasonable - application dismissed.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 26 March 2020. The application was made by David Paul Neville (the applicant) and the respondent employer is Lake Fox Limited T/A Rocky’s Own Transport Company (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 16 March 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Orange on 12 August 2020.
[4] At the Hearing the applicant represented himself, and he provided evidence as the only witness called in support of the unfair dismissal claim. Further to a Decision of the Commission issued on 6 August 2020, [2020] FWC 4095, which granted permission for the Parties to be represented by lawyers or paid agents, the employer was represented by Mr C Mossman, solicitor from Wotton Kearney lawyers. Mr Mossman called three witnesses who provided evidence on behalf of the employer.
[5] At the conclusion of the Hearing on 12 August, the evidence from each side had been finalised. However, at the request of the Parties, a timetable for the provision of documentary submission materials was established, which was completed when the applicant filed his final submissions document on 8 September 2020.
[6] The applicant worked for the employer for approximately 19 months. The applicant was employed to work as a Multi-Combination (MC) Long Distance Truck Driver. The applicant was engaged in long distance truck driving work that required him to have, inter alia, Dangerous Goods (DG) licences. The DG licences and other approvals/licences/clearances were required specifically in respect to the applicant driving trucks that carried either sodium cyanide (cyanide) or ammonium nitrate emulsions (ANE).
[7] The employer operates a general and express road freight business, and although it is based in Rockhampton, Queensland, it has depot facilities throughout Australia, and it operates as a national logistics company. The employer’s operations include the provision of specialist road freight services for bulk dangerous goods and high explosives.
[8] The applicant was engaged in long distance truck driving work based at the employer’s depot located at the New South Wales regional city of Dubbo. Shortly before the applicant commenced employment in August 2018, the employer sent a series of emails 1 to the applicant which outlined various steps that the applicant was required to undertake in order to obtain relevant DG licences as required by the respective State governments of South Australia, New South Wales, and Queensland. One of the licences that was required for the transportation of ANE in New South Wales is issued by SafeWork NSW and is referred to as a Security Sensitive Ammonium Nitrate licence (SSAN licence).
[9] In October 2018, the employer had not been provided with a copy of the applicant’s SSAN licence, and inquiries that were made by a member of the employer’s human resources recruitment team confirmed that the applicant did not have a SSAN licence. These inquiries further revealed that the applicant was not really interested in getting a SSAN licence because he was happy “doing what he is doing” 2. The mention of the applicant “doing what he is doing” is a reference to the applicant primarily undertaking driving work on what was described as a “shuttle run” between Dubbo and Yarwun, Queensland, and return, and in particular, this work did not involve the applicant undertaking any transportation of ANE in the absence of a SSAN licence.
[10] On 12 November 2018, the employer sent a letter 3 to WorkCover NSW, which relevantly sought to have the applicant’s SSAN licence application granted as it had apparently been earlier rejected. Apparently as a result of the representations made by the employer on behalf of the applicant, he was issued with a SSAN licence on 23 November 2018. However, the applicant’s apparent failure to subsequently provide a copy of his SSAN licence to the employer became an issue connected with the termination of his employment.
[11] On 1 July 2019, the video monitoring safety camera (dashcam) installed in the truck that the applicant was driving, was triggered due to the rough and uneven road surface that the vehicle was travelling on. The dashcam video showed that the applicant was not wearing a seatbelt, and the monitoring system sent an alert to the employer which included images that captured the applicant not wearing a seatbelt while driving. Consequently, on 3 July 2019, the employer’s Dubbo depot manager, Mr Gary White, conducted a coaching session with the applicant which recorded concern about the applicant not wearing a seatbelt, and which the applicant acknowledged by signing and dating a coaching session report document. 4
[12] On 10 October 2019, Mr White raised concern with the applicant about the applicant’s recent failure to complete certain paperwork including odometer readings that were to be included in timesheet information. The applicant responded to Mr White by claiming that he was being bullied, harassed and discriminated against by Mr White, and a verbal disagreement between the two men followed. Mr White subsequently sent an email to the employer’s senior managers which recounted aspects of the difficult disagreement that had occurred, and which included that the applicant had inter alia, complained that by “…wanting him to do ANE that he has no interest in or wants to do…” was “… causing him to stress out…” 5.
[13] On 21 November 2019, Mr White had another discussion with the applicant regarding the requirement for the applicant to produce his SSAN licence in order to permit the applicant to transport ANE. The applicant apparently indicated that he had misplaced or lost his SSAN licence. On 26 November 2019, Mr White provided the applicant with documentation to make an application to have any lost or stolen SSAN licence replaced with a reissued licence. Mr White produced the SSAN licence replacement documentation from an internet link that had been provided to him in an email 6 on 25 November 2019, from the employer’s human resources manager, Ms Patricia Crawford.
[14] On 6 January 2020, Mr White received a dashcam report which provided video monitoring vision 7 of the applicant driving a truck carrying dangerous goods without a seatbelt fastened and smoking a cigarette. Mr White spoke to the applicant about the dashcam vision and reminded him of the need to wear a seatbelt and not to smoke whilst driving a vehicle that was transporting dangerous goods.
[15] On 11 January 2020, Mr White received another dashcam report which provided video monitoring vision 8 of the applicant driving a truck carrying dangerous goods without a seatbelt fastened. In this dashcam vision the applicant is also seen to be making a one finger gesture at the monitoring camera when he noticed that it had been activated. On 14 January 2020, Mr White issued the applicant with a written warning9 in respect of his conduct that was captured in the dashcam vision of 11 January.
[16] On 4 February 2020, Mr White gave the applicant a verbal warning regarding exceeding the speed limit for a Multi-Combination vehicle. On 12 February 2020, as a result of problems associated with the delay caused by a truck breakdown, Mr White and the applicant again had a disagreeable conversation which did involve the use of strong language. On 27 February 2020, Mr White and the applicant had another disagreeable conversation which again involved the use of strong language.
[17] On Friday, 28 February 2020, a member of the public telephoned the 1800 emergency response number that is displayed on the tankers of the MC vehicle that the applicant was driving. The telephone call, which was made to the Orica company who was the employer’s customer, was from a female member of the public who made a complaint about the applicant allegedly being rude when she asked him to move the truck which had been parked in front of the driveway of a service station in the New South Wales country town of Coonamble. The Coonamble complainant included a photograph of the Orica tankers of the truck that were parked in the street a short distance away from, but adjacent to, a driveway which is presumably that of the service station.
[18] On Monday, 2 March 2020, the employer commenced an investigation into the complaint made by a member of the public in Coonamble about the conduct of the applicant (the Coonamble complaint). The Coonamble complaint had been brought to the attention of senior managers including the employer’s Chief Executive Officer, Mr Bryan Smith. The employer decided to suspend the applicant from duty on pay from 3 March 2020, whilst it investigated the Coonamble complaint and other incidents involving the alleged misconduct of the applicant.
[19] On 6 March 2020, the employer sent a letter to the applicant which inter alia, set out various allegations of possible misconduct on the part of the applicant. This letter also advised the applicant of the requirement for him to attend a meeting that was to be held on 10 March 2020, at a location in Dubbo, and which would be attended by senior management representatives including the CEO, Mr Smith. The purpose of this meeting was to discuss the allegations of misconduct that were set out in the letter and to provide the applicant with an opportunity to respond to the allegations. Further, the applicant was advised that he was entitled to have a support person present at the meeting.
[20] On the morning of 10 March 2020, the applicant attended the meeting in Dubbo as had been planned, and he provided the employer with a documentary response 10 to the various allegations of misconduct that were contained in the letter of 6 March 2020. During the meeting, the applicant was invited to provide explanation and offer any defences in respect of the various allegations of misconduct that had been made against him. At the conclusion of the meeting, Mr Smith advised the applicant that the employer needed more time to assess the applicant’s written and verbal responses, and that he would remain suspended from duty on full pay whilst the employer further considered the applicant’s employment circumstances.
[21] In the afternoon of 10 March 2020, the employer’s Dubbo depot manager, Mr White, sent a text message to the applicant requesting him to provide a copy of his SSAN licence. The applicant quickly responded and within about an hour he sent pictures of his SSAN licence to Mr White.
[22] On 12 March 2020, Mr Smith telephoned the applicant and advised him that the employer had further considered the written and verbal responses that he had provided during the meeting held on 10 March 2020. Mr Smith told the applicant that having considered the matter further, the employer had formed the view that the applicant had consistently failed to comply with company policies and directives, and therefore his employment was terminated with immediate effect and payment in lieu of 3 weeks’ notice. Mr Smith also told the applicant that he would be provided with a termination of employment letter that confirmed the verbal advice that he was providing.
[23] On 16 March 2020, the employer sent the applicant a termination of employment letter which confirmed the earlier verbal advice provided by Mr Smith. The termination of employment letter made reference to particular findings which were said to have been included as the basis upon which the employer decided to dismiss the applicant. The findings that were mentioned in the termination of employment letter were; the delay in the applicant providing a copy of his SSAN licence and his associated reluctance to transport ANE; the applicant smoking whilst transporting dangerous goods; and the applicant operating a Road Train in excess of the speed limit.
[24] On 16 March 2020, the applicant made a workers compensation claim in respect of an incapacity that was asserted to have arisen because of workplace bullying. The applicant subsequently lodged his unfair dismissal claim on 26 March 2020. In July 2020, the applicant commenced alternative employment which provided lower remuneration that he had received whilst engaged with the employer.
[25] The applicant provided two written submission documents which were respectively filed on 25 August and 8 September 2020. The applicant submitted that his dismissal was harsh, unfair and unjust. The applicant submitted that his dismissal was based on a random complaint by an unnamed person, with no substance, and which proceeded via an incomplete investigation that was harsh and unfair.
[26] The applicant submitted that the employer had not informed him that he was on his final chance and then it proceeded to dismiss him without proper process. The applicant submitted that his dismissal was harsh and unjust because of inconsistent treatment, whereby one driver was reprimanded for particular conduct, and in his circumstance, he was dismissed.
[27] In respect to one of the issues that the employer relied upon as the basis for dismissal, the applicant submitted that he had never refused to undertake any tasks or produce his SSAN licence. The applicant submitted that the employer’s manager, Mr White had tried to make the applicant cart ANE when he had not been correctly trained, and this subjected the applicant to bullying and intimidation. In further submissions, the applicant said that he admitted that he expressed a desire not to cart ANE, although he did not refuse to do so. In addition, the submissions made by the applicant stated, “The amount of ANE in the Oklahoma bombing was only 2.5 tons and to unconfidently be put in a position to cart around 40 ton of ANE was not an attractive job.”
[28] The applicant also made submissions which challenged the employer’s use of the dashcam video footage which he claimed was something that was confined to use for coaching and training purposes. The applicant also raised complaint that his personal property had been removed from the truck without his knowledge or permission.
[29] The submissions made by the applicant also asserted that any problems that occurred with his paperwork were only small errors and arose from the employer introducing different paperwork procedures. The applicant reiterated that he believed that he had proven beyond doubt that his termination was unfair, harsh and unjust. The applicant stressed that his dismissal had not been the subject of proper process as there had not been a thorough investigation into the complaint made by a member of the public in Coonamble.
[30] The applicant also submitted that his behaviour was very acceptable and at no point had he been informed that his behaviour was unacceptable until the unfair dismissal proceedings were implemented. The submissions of the applicant also stated that the employer had failed to prove a story that the applicant finds appalling, disgraceful and offensive. The submissions of the applicant stated that “J K Rowling would be impressed by the fiction that has been revealed.”
[31] The applicant made further submissions in respect of the various reasons that were relied upon by the employer for his dismissal, whereby he admitted that he did smoke in a dangerous goods vehicle but he did so to beat fatigue and the bullying and stress imposed upon him by Mr White, and further, the dangerous goods were not flammable. Further, the applicant submitted that a pattern of behaviour had not been established.
[32] The applicant submitted that the Commission should find that the termination of his employment was harsh, unfair and unjust. Further, the applicant submitted that his successful application, having been upheld, should therefore mean that he should be considered for reinstatement. Alternatively, the applicant submitted that his unfair dismissal had caused embarrassment, and compensation should be awarded for this, and the fact that Covid has placed the applicant in hardship, and therefore “any compensation be awarded at 140%.”
[33] The written submissions provided on behalf of the employer summarised the reason for the applicant’s dismissal to have involved the employer’s CEO, Mr Smith, forming the view that the applicant had engaged in a pattern of behaviour that was consistent with him refusing to comply with or neglecting company policies including lawful and reasonable directions of the employer.
[34] The submissions made by the employer provided a detailed history of the circumstances surrounding the extensive delay involving the applicant providing the employer with a copy of his SSAN licence. The employer submitted that the evidence established that the applicant had been untruthful in suggestions that he had lost or misplaced his SSAN licence, and he only produced a copy of the license to Mr White after the employer had commenced its formal disciplinary process. The employer submitted that the applicant was obliged to cooperate with the lawful and reasonable requests made by the employer for him to produce a copy of the SSAN licence, and he did not do so because he attempted to avoid carting ANE.
[35] The submissions made by the employer also referred to other incidents of misconduct which it said formed a pattern of behaviour. In this regard, the submissions of the employer referred to the applicant smoking whilst driving a dangerous goods vehicle, his repeated failure to wear a seatbelt, a speeding incident, his abusive and aggressive language during conversations that he had with Mr White, his failure to cooperate with completing paperwork properly, and finally the complaint from a member of the public in Coonamble.
[36] The employer’s submissions asserted that having regard for the totality of the applicant’s conduct, the established pattern of behaviour that was exhibited represented valid reason for his dismissal. The employer stressed that the nature of the work performed by the applicant involved a high degree of trust and confidence in any employee given the responsibility to cart dangerous goods in B-double trucks and Road Trains operating on national highways. The employer submitted that the applicant’s conduct included serious breaches which had the capacity to cause serious risk to the health and safety of the applicant and the general public.
[37] The submissions made by the employer referred to other factors that are mentioned in s. 387 of the Act. The employer submitted that the applicant had been notified of the reasons for his dismissal in the letter of termination dated 16 March 2020. Further, the employer submitted that the applicant had been given an opportunity to respond to the allegations that were set out in the earlier letter of 6 March 2020.
[38] The submissions made by the employer also asserted that the applicant was given an opportunity to have a support person present during the meeting held on 10 March 2020. In addition, the employer submitted that the dismissal of the applicant related to conduct rather than performance questions.
[39] It was also submitted by the employer that the size of the employer’s enterprise whereby its head office was located in Rockhampton, did require the CEO to travel from Rockhampton to Dubbo to personally meet with the applicant in order to allow him the opportunity to respond face to face. The employer submitted that it had followed a fair procedure by notifying the applicant of the allegations and allowing him the opportunity to respond in writing, and face to face, with the decision maker, Mr Smith.
[40] In summary, the submissions made by the employer asserted that there was valid reason for the dismissal of the applicant and that upon a consideration of all of the relevant factors including those mentioned in s. 387 of the Act, the Commission should not find that the applicant’s dismissal was unfair. However, the employer also made alternative submissions in the event that the application was upheld, in which case it asserted that reinstatement would not be appropriate and because of the misconduct of the applicant, any compensation should be significantly reduced. Notwithstanding the alternative submissions regarding compensation, the employer urged that the Commission should dismiss the application.
[41] The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[42] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.
[43] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. Section 387 is in the following terms:
“387 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.”
[44] In this instance, the applicant was dismissed because the employer formed the view that he had exhibited a pattern of misconduct that was inconsistent with any continuation of the employment relationship. The pattern of misconduct arose from various specific incidents and culminated in the complaint made by a member of the public in Coonamble (the Coonamble complaint). The Coonamble complaint could be described with the customary cliché as “the straw that broke the camel’s back”.
[45] The termination of employment letter 11 referred to three particular findings of misconduct that emanated from the more extensive list of incidents of misconduct that were contained in the letter of allegations.12 The three findings of misconduct that were mentioned in the termination of employment letter were expressed as not being exhaustive, but were presumably the more significant issues of concern for the employer.
[46] The three issues that were mentioned in the termination of employment letter were: (1) the applicant’s failure to provide a copy of his SSAN licence for more than 12 months, (2) the applicant smoking in a Dangerous Goods Vehicle, and (3) the applicant operating a Road Train in excess of the legal limit.
[47] In respect to the first issue involving the applicant’s extensive delay with providing a copy of his SSAN licence, the evidence has established that the employer’s directive for the applicant to provide a copy of the SSAN licence was lawful and reasonable. The applicant’s offer of employment documentation specified inter alia, that the applicant must be able to work with a wide variety of goods including flammable substances, dangerous materials, raw materials, building materials, manufactured goods and refrigerated products. The evidence established that the applicant clearly understood at the time of his engagement with the employer, that he was required to hold and produce to the employer, DG licences and other approvals/licences/clearances that were required specifically in respect to the applicant driving trucks that carried either sodium cyanide (cyanide) or ammonium nitrate emulsions (ANE).
[48] The applicant’s protracted obfuscation of the circumstances of his SSAN licence was starkly contrasted with the speed with which he produced a copy of the license after the employer had commenced the disciplinary process. These circumstances provided sound justification for Mr Smith forming the view that the applicant’s failure to provide the SSAN licence at an earlier time involved excuses that were at best disingenuous and regrettably, dishonest. Consequently, the applicant’s conduct in respect of the protracted delay with the provision of his SSAN licence represented proven misconduct.
[49] The second issue mentioned in the termination of employment letter as a finding of misconduct, concerned the applicant smoking whilst driving a Dangerous Goods Vehicle. The dashcam video recording 13 confirmed that the applicant was smoking whilst driving a Dangerous Goods Vehicle. Clause 6 of the applicant’s offer of employment documentation required him to comply with the employer’s policies which included a document described as a Transport Manual. Clause 20 of the Transport Manual document stated: “Smoking in Dangerous Goods or Explosives carrying vehicles is strictly prohibited.” Consequently, the applicant’s conduct in respect of smoking whilst driving a Dangerous Goods Vehicle represented proven misconduct which the employer’s own stated policy strictly prohibited.
[50] The third issue included in the termination of employment letter involved the applicant operating a Road Train in excess of the legal speed limit of 90 km/h. This incident occurred on 4 February 2020, and the applicant did not deny that he had exceeded the speed limit. However, in fairness, the applicant was one of several drivers who had received verbal warnings about being recorded on the GPS tracking system as having exceeded the speed limit. Consequently, in isolation, this issue would not represent misconduct upon which the dismissal of the applicant would be properly based. Unfortunately for the applicant, there were a number of other incidents of misconduct which were not included for specific mention in the termination of employment letter, but which nevertheless, formed the constituent elements in Mr Smith’s overall assessment of the pattern of misconduct that was the basis upon which he decided to dismiss the applicant.
[51] The evidence has confirmed a number of other incidents of misconduct that contributed to a pattern of misbehaviour that the employer found to be inconsistent with any continuation of the employment relationship. The evidence unequivocally established that on 1 July 2019, 6 and 11 January 2020, the applicant was not wearing a seatbelt whilst driving a Dangerous Goods Vehicle. Further, the evidence that was provided by Mr White, and which was recounted from diary notes that were unfortunately not produced, nevertheless provided a consistent and believable account that has been preferred wherever it differed from the applicant’s version of relevant events. This particular evidence established that on numerous occasions, including, 21 November 2019, 4, 12 and 27 February, the applicant engaged in aggressive and abusive arguments with his immediate supervisor, Mr White. Finally, on 28 February 2020, although evidence did not confirm the details of the Coonamble complaint, there was sufficient basis for the employer to conclude that a member of the public would not photograph the truck driven by the applicant and include that with her complaint alleging that the applicant had been rude when asked to move the vehicle, if there was not some foundation to the complaint.
[52] The position of the employer when it assessed the totality of the circumstances surrounding the employment situation of the applicant, was well summarised by the following evidence that was provided by Mr Smith during his cross examination by the applicant:
“If there was something - that’s right, so you would need to check perhaps other things for your investigation? --- Well, that situation in some respects had little relevance to where we are here now with the accumulation of the situation with not wearing seatbelts repeatedly, with smoking. And I was really alarmed, mate, when the time on the video that it showed you to the seconds on not wearing a seatbelt, smoking, and giving a one finger salute at the camera. That really alarmed me because I - my knowledge of these situations when someone shows that sort of disregard, you’re eventually going to have some problems.” 14
[53] A careful and thorough examination of all the evidence has established that the applicant engaged in various incidents of misconduct over an extended period of time. In fairness to the applicant, some of incidents of misconduct such as exceeding the speed limit, would not, in isolation, provide a sound basis for dismissal. However, the extent and nature of the repeated incidents of misconduct, when considered in totality, represented a pattern of misconduct which justified the employer forming the view that the applicant had; (a) acted dishonestly in respect to the extensive delay with providing his SSAN licence, (b) failed to consistently comply with the employer’s policies by smoking whilst driving a Dangerous Goods Vehicle and not wearing a seat belt, (c) deliberately refused to comply with its lawful and reasonable directives in respect to completing paper records and following the reasonable directives of his supervisor Mr White, (d) acted in an aggressive and disobedient manner reflected in repeated arguments with Mr White and by displaying a one finger gesture to the dashcam camera, and (e) potentially damaging the reputation of the employer when engaging in a manner with a member of the public who subsequently made a formal complaint.
[54] In summary therefore, the conduct of the applicant whereby he engaged in repeated incidents of misconduct over a protracted period, established a pattern of misconduct which provided valid reason for the dismissal of the applicant.
[55] The employer provided initial verbal notification of the reasons for the applicant's dismissal during the telephone call made by Mr Smith on 12 March 2020. Subsequently, the employer provided a termination of employment letter dated 16 March 2020, which confirmed the earlier verbal advice and included some of the more significant reasons for the applicant’s dismissal.
[56] Consequently, the applicant was notified of the reasons for his dismissal both verbally and subsequently in writing. In this case, distance prevented Mr Smith from providing the initial verbal notification of dismissal to the applicant in a face to face meeting. However, it must be recognised that Mr Smith, et al, had travelled from Rockhampton to Dubbo in order to meet personally with the applicant at the show cause meeting held on 10 March 2020. In the circumstances, it would be unrealistic and unreasonable for Mr Smith to have made a further trip from Rockhampton to Dubbo to provide the notification of dismissal in person. Further, as the decision maker, it was appropriate for Mr Smith to convey the initial notification of dismissal himself, rather than delegate that responsibility.
[57] The applicant was provided with an opportunity to respond to the allegations set out in the letter of 6 March 2020, during the meeting that was held on 10 March 2020. During that meeting, the applicant provided a written document in response to the allegations contained in the 6 March correspondence, and he supplemented this documentary response with verbal explanations and other defences.
[58] The employer did not unreasonably refuse to allow the applicant to have a support person present at the meeting held on 10 March 2020.
[59] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead, for a pattern of misconduct.
[60] The employer is not a small size business operation and therefore the procedures that it has adopted have been subject to the requisite level of scrutiny.
[61] There was evidence that the employer did have employee management specialists. The processes that were adopted by the employer provided the applicant with procedural fairness.
[62] The employer provided the applicant with a document that particularised the allegations that were under consideration as providing potential basis for dismissal. The applicant was suspended from duty on pay whilst the investigation and disciplinary processes were undertaken. The applicant was provided with an opportunity to offer explanation or make out any defence in respect of the identified allegations. The employer’s decision maker, Mr Smith, met personally with the applicant to hear the applicant’s responses to the allegations. The employer then subsequently adjourned the meeting and further considered the applicant’s responses before finalising its decision to dismiss the applicant.
[63] Consequently, the processes that were adopted by the employer represented a commendable example which, whilst not an elaborate or lengthy procedure, ensured that the applicant was provided with procedural fairness. Essentially, the allegations were clearly identified and conveyed to the applicant, he was given proper opportunity to respond, and the employer did not hastily reach a conclusion regarding dismissal.
[64] The Commission has had regard for the personal circumstances of the applicant, including the financial and other impacts of the termination of employment. These matters have been evaluated and balanced against the various other factors under consideration.
[65] The applicant also advanced an inconsistent treatment argument whereby he asserted that his dismissal represented disciplinary action that was inconsistent with the disciplinary action invoked by the employer for other employees who had engaged in established misconduct. In particular, the applicant referred to an incident which apparently involved Mr White allowing children to travel in one of the employer’s trucks, and for which he received admonishment and a warning, but not dismissal. There was a paucity of evidence introduced about this particular event, and importantly, it appeared to represent a single incident of misconduct as opposed to the pattern of misconduct engaged in by the applicant.
[66] In this case the applicant was dismissed when the employer formed the view that he had engaged in a pattern of misconduct that was inconsistent with any continuation of the employment relationship. The pattern of misconduct arose from findings that the employer made following its investigation into, and consideration of, a number of incidents which included that the applicant had; acted dishonestly; and, repeatedly failed to comply with the employer’s policies; and, repeatedly refused to comply with lawful and reasonable directives; and, acted in an aggressive and disobedient manner; and potentially damaged the reputation of the employer. Upon careful analysis, the employer’s findings in respect to the applicant’s pattern of misconduct have been confirmed.
[67] The evidence has established that various incidents of misconduct including the applicant smoking and not wearing a seatbelt whilst driving a Dangerous Goods Vehicle, deliberately obfuscating the circumstances of his SSAN licence, and engaging in abusive arguments with his supervisor, represented, in combination, misconduct that was plainly inconsistent with the continuation of employment, and has established valid reason for the dismissal of the applicant.
[68] An examination of the other relevant factors has established that there were no procedural errors or defects with the process that the employer adopted in respect to the investigation, consideration, and final determination of the dismissal of the applicant. Indeed, the employer adopted a commendable procedure that included, clear identification of the allegations under investigation, paid suspension of the applicant from duty, a show cause meeting that involved the decision maker meeting with the applicant face to face, and an appropriate level of hesitation/caution before any final determination was made. The approach of the employer in this instance has represented a case study example which has demonstrated that natural justice is not a difficult or elaborate process.
[69] In conclusion, the applicant was dismissed for valid reason involving his established misconduct arising from a pattern of misconduct incidents. There were no procedural deficiencies or other matters which operated to render the dismissal of the applicant to be harsh, unjust or unreasonable.
[70] Therefore, as the dismissal of the applicant was not harsh, or unjust, or unreasonable, it cannot be found to be unfair. The application for unfair dismissal is dismissed accordingly. An Order dismissing the application shall be issued in conjunction with this Decision.
COMMISSIONER
Appearances:
Mr D Neville appeared unrepresented.
Mr C Mossman, Solicitor from Wotton Kearney lawyers appeared for the employer.
Hearing details:
2020.
Orange:
August, 12.
Printed by authority of the Commonwealth Government Printer
<PR724111>
1 Respondent’s document bundle - Tab D.
2 Respondent’s document bundle - Tab G.
3 Respondent’s document bundle - Tab I.
4 Respondent’s document bundle - Tab L.
5 Respondent’s document bundle - Tab M.
6 Respondent’s document bundle - Tab O.
7 Exhibit 7 - Annexure A.
8 Exhibit 7 - Annexure B.
9 Respondent’s document bundle - Tab P.
10 Exhibit 1 - Annexure 5.
11 Exhibit 1 - Annexure 1.
12 Exhibit 1 - Annexure 4.
13 Exhibit 7 - Annexure A.
14 Transcript @ PN1418.