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Introduction

This decision relates to the dismissal of an employee for poor timekeeping, leaving work early, and failing to advise of absences. But overall, it is a great example on how to conduct poor employee behaviour.

Background

  • The respondent is a rail maintenance company in Victoria.
  • The applicant commenced his employment with the respondent in October 2016 in the position of a casual becoming a full-time employee from 26 May 2017.
  • On 16 January 2020, the applicant was issued with a first and final written warning:
    • A customer complaint regarding the applicant’s attitude during a shift on 13 December 2019 alleging that the applicant asked when he could finish as soon as arriving on site, that he was “being difficult” when instructed to perform specific tasks and that he left site early without permission; and
    • A text message exchange between the applicant and the respondent on 17 December 2019 regarding the number of nights shifts for which the applicant had been rostered, in which the applicant called the recipient a “f*khead” and a “f*kwit” via text message. The respondent considered the text message to be “abusive and inappropriate language” which was a “violation of the respondent’s values of Care, Quality, Innovation and Integrity.”

The Final Written Warning

The final written warning should be instructive to readers, as it worded very well, stating:

“The following improvements are expected of you immediately:

  • Communicate with [name], Operations Manager if you need to leave site early for any reason, a text message or call is sufficient;
  • Follow all reasonable directions and instructions provided to you by Supervisors and/or Managers onsite. If a direction or instruction made to you raises a concern, then you must communicate this with [name], Operations Manager as soon as possible;
  • Under no circumstance may you speak to another employee of [company] in an offensive, abusive and/or indecent manner; and
  • You will conduct yourself in a professional, mature and controlled manner when interacting with employees of [company], [company] clients and/or members of the public during the course of business.

This is a very serious matter which will not be tolerated and as such immediate improvement on your part is required. We hope that no further discussions will need to be held with you pertaining to inappropriate behaviour in the workplace.

However, please note that your employment will be terminated, or further disciplinary action will be taken if we do not see immediate improvement in your conduct.

You are welcome to have a support person of your choice present at future meetings if termination is a potential outcome.

Employment terminated

The applicant’s employment was terminated 12 February 2020 Mr for misconduct relating to the final warning and falsifying timesheets. He was provided with three weeks’ pay in lieu of notice of termination.

The dismissal process

On 11 February 2020, the applicant was directed by email to attend a meeting with the respondent “to discuss your employment”. The email informed the applicant that he could attend with a support person. This meeting was postponed to 12 February 2020 due to unavailability of the applicant’s union representative, Mr Evans.

At the meeting, the applicant was informed of the allegations against him and directed to respond to the allegations.

The applicant was provided time to consider his responses, and on return the meeting provided the following:

  • he had a death in the family;
  • he correctly put his start time on the Sign-In Sheet but made an error when putting it in to his timesheet;
  • he did not mean to defraud the company and apologised for his behaviour;
  • he did not have lunch and was taking a call and not aware that the supervisor was looking for him;
  • he had a lot going on at the time.

The respondent confirmed that the applicant had nothing further he wished to add.

The respondent did not consider the applicant’s explanations were adequate and the applicant’s employment was terminated for reasons of issues relating to the applicant’s ongoing issues with accurate time recording, inconsistency in coming to work, his failure to give adequate notice of his absences, falsifying his timesheets and ongoing lack of reliability.

Was there a valid reason for the dismissal?

The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to the employee’s conduct or performance are well established. A valid reason is one that is “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.

Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.

Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw v Briginshaw, the nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained” and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences” or “circumstances pointing with a wavering finger to an affirmative conclusion”. The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.

The rule in Briginshaw has elsewhere been described as reflecting a conventional presumption that members of society do not ordinarily engage in fraudulent or criminal behaviour. In Greyhound Racing Authority, Santow JA noted:

… The notion of “inexact proof, and indefinite testimony or indirect inferences” needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by [a Tribunal].

The ‘level of comfort’ referred to means that the finder of fact must “feel an actual persuasion of the occurrence or existence of the fact in issue”; the “mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact.”

Two Valid reasons

The Deputy President finding that there were in fact two valid reasons for the termination of the applicant’s employment:

“I consider that [the applicant’s] dishonest entry of time on 10 February 2020 for hours worked on 7 February 2020 constitutes misconduct and a valid reason for his dismissal. I also consider [the applicant’s] failure to comply with the Direction, having regard to all the circumstances, constitutes a further valid reason for his dismissal”.

Was the applicant notified of the valid reason?

Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee’s employment, and in explicit and plain and clear terms. In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

The DP:

“It is uncontested that the matters which I have found to constitute valid reasons for [the applicant’s] dismissal were put to him at the Termination Meeting and are included in the Termination Letter. [The applicant] was notified of the valid reasons for his dismissal”.

Was the applicant given an opportunity to respond to any valid reason related to his capacity or conduct?

Section 387(c) requires the Commission must take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.

The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.

In Wadey v YMCA Canberra Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:

“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”

Taking these principles in consideration, the DP was satisfied that the applicant was provided with an opportunity to respond and that opportunity was reasonable.

Did the respondent unreasonably refuse to allow the applicant a support person present to assist at discussions relating to the dismissal?

Section 387(d) requires the Commission to take into account whether there was an unreasonable refusal by the employer to allow an employee to have a support person present to assist in discussions relating to dismissal. The DP:

“It is not contended that [the applicant] was denied the presence of a support person at the Termination Meeting. [The union] attended the Termination Meeting with [the applicant] and, indeed, the Termination Meeting was rescheduled from 11 February 2020 to 12 February 2020 to accommodate [the union’s] availability to attend”.

Was the applicant warned about unsatisfactory performance before the dismissal?

If a dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee has been warned about the unsatisfactory performance prior to dismissal.

The DP:

“[the applicant] submits that he had not received any warning for conduct that was relied upon to justify his dismissal. The reasons for dismissal that I have found to constitute a valid reason are matters of conduct not capacity. [The applicant’s] dismissal therefore did not relate to unsatisfactory performance and he was not required to be warned. However, in any event, I have found that [the applicant] was verbally warned not to falsify his timesheets in the 5 July Meeting and was also warned as to his unreliability and attendance on 29 August 2019”.

To what degree would the size of the respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

Section 387(f) requires the Commission to take into account the degree to which the size of the employer would likely impact on the procedures followed in effecting the dismissal. The DP:

“At the time of [the applicant’s] dismissal, the respondent employed 93 employees. The size of the employer’s enterprise would have no impact on the procedures followed in effecting dismissal”.

To what degree would the absence of dedicated human resource management specialists or expertise in the respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

Section 387(g) requires the Commission to take into account the degree to which the absence of dedicated human resources management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal. The DP:

“There was no absence of dedicated human resource management specialist or expertise in [the respondent’s] enterprise. It is apparent that [HR] was involved in the process leading up to [the applicant’s] dismissal and in the dismissal. Accordingly, section 387(g) has no application”.

What other matters are relevant?

Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. The DP:

“The proportionality of the dismissal to the conduct that is the subject of the valid reason is a matter to be considered in connection with section 387(h). I have found that [the applicant] dishonestly entered time on 10 February 2020 in respect of the hours worked on 7 February 2020 and failed to comply with a lawful and reasonable direction. [the applicant’s] dishonest conduct constitutes misconduct and, indeed, in my view, constitutes serious misconduct. It alone justified the termination of [the applicant’s] employment. However, in combination with [the applicant’s] failure to comply with the Direction, I consider it clear that dismissal was proportionate to [the applicant’s] misconduct. Further, notwithstanding that [the respondent] considered [the applicant] had engaged in serious misconduct justifying summary dismissal, he was provided with three weeks’ payment in lieu of notice. I consider this to weigh against a finding that the dismissal was harsh, unjust or unreasonable.

“For completeness, should I be wrong and [the applicant] carelessly, as opposed to dishonestly, entered his time for 7 February 2020, I do not consider, in all the circumstances, including the failure to comply with the Direction and the previous warning issued to [the applicant] regarding his time entries, that dismissal would have been disproportionate to [the applicant] misconduct”.

The DP concluding

Basically, in this matter the DP found that the respondent employer did everything right, whilst not impressed with the antics of the applicant:

“Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, I am satisfied that the dismissal of [the applicant] was not harsh, unjust or unreasonable.

“Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that [the applicant] was unfairly dismissed within the meaning of section 385 of the Act. The application is therefore dismissed”.