Troy Jarvis v Croker Constructions. (U2015/11964)  FWC 2377. GOOLEY, DP, 19 APRIL 2016
The applicant in this matter, a Mr Troy Jarvis (“Jarvis”), worked for the company as in a non-supervisory capacity for a period of 18 months, save for the occasion where the supervisor would “get him to look after the boys” whilst he was away from the workplace.
Ms Tania Silk representing a labour hire firm visited the site in her capacity of supplying workers to the company.
Jarvis approached Ms Silk and purported to her the site supervisor. Discussions took place between Ms Silk and Jarvis in what I would describe as a business meeting. Confidential information was provided that would not normally be said. Jarvis complained to Ms Silk in relation to the quality of people she was providing to the company, including OH&S matters. He then suggested that Ms Silk and he should catch up for coffee at some stage to discuss some volunteer work he was doing. He later texted her in this regard.
By this time Ms Silk became suspicious and contacted the company’s managing director, who advised Ms Silk Jarvis was not a supervisor. Ms Silk said she felt she had been lied to by Jarvis and that he had misrepresented Croker’s and himself and had posed as a supervisor. She told Mr Croker she thought his behaviour was inappropriate and unacceptable.
Jarvis was a difficult employee and he had a history of poor performance and was on a final warning for an unrelated matter (unacceptable language, harassment and bullying) and had been verbally counselled in relation to other performance issues.
After the termination of his employment, Mr Jarvis contracted the Perron Group. Croker’s were performing work for Perron. He reported his safety concerns to them.
In summary, Jarvis was dismissed for his conduct in representing to Ms Silk that he was a supervisor. As a result of that misrepresentation he became privy to information that would not be provided to an employee.
The DP commented:
“[just because] the conduct occurred does not mean that there was a valid reason for the termination of employment [my emphasis]. [The company] submitted that Mr Jarvis ‘blatantly and deliberately attempted to gather information from a third party about the company in a corrupt and dishonest manner. The applicant wilfully represented himself by posing as a supervisor and purported to be a person in authority so that a third party, who was an external supplier of the respondent would meet him.’”
“…Jarvis was ‘a difficult and disgruntled employee with an irrational grudge against his employer, an obsessive, obstructive and often provocative approach to safety… [and had] taken an avid, bordering on obsessive and disruptive, interest in the safety function of the company to the detriment of the role he was appointed to carry out and its responsibilities.”
The DP was of the view that Jarvis had not made the misrepresentation for personal gain, did set out to illicit confidential information from Ms Silk and allegations relating to his poor work performance was not backed up in the evidence. (Jarvis’ supervisor was not called as witness); and stated that:
“If Mr Jarvis was dissatisfied with how health and safety was being dealt with on site he should have raised it with more senior managers. If that was unsuccessful he could have raised it with the Work Safe WA. Mr Croker said he was experienced in OH&S issues and he should have been aware of the appropriate steps to take to resolve such issues. However he made a deliberate decision to bypass these processes and go directly to Ms Silk and raise his concerns with her.”
The DP finding:
“However, I am not satisfied that Mr Jarvis’ conduct warranted his dismissal. I accept his sworn evidence that he was put in charge when his supervisor left site. I accept that this did not make him a supervisor and did not entitle him to represent to Ms Silk that he was a supervisor. However, I am not satisfied he did this for personal gain with any intention to harm Croker. He acted out of his misguided belief about his responsibilities when left without supervision on site. I am satisfied that his conduct warranted a warning [my emphasis]. I am not satisfied that making that representation was sufficient to justify his dismissal. I am therefore not satisfied that there was a valid reason for his dismissal”.
The Company was ordered to pay Jarvis compensation of $9,120.00 and an additional $866.40 to his superannuation fund.
On the one hand, the payment of compensation (based on the company’s allegations) was probably a good investment (tongue firmly in cheek). However, the fact that the supervisor was not called to give evidence was a large gap in the burden of proof, and it essential that someone must be in supervision at all times, otherwise the relevant safety will shut the site down.
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