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Dismissal of truck driver for poor performance found not to be harsh, oppressive, or unfair

The Commission has dismissed a bus driver's application for unfair dismissal, finding that the employer provided reasonable opportunity for the driver to improve following warnings of poor performance.

Background

The applicant was employed by the respondent as a casual bus driver working six to seven days each week. He worked from October 2020 until 7 June 2021. On 7 June 2021, the applicant returned late to the bus depot from the job.

Contentions

The applicant submits that he was unfairly dismissed immediately on 7 June 2021 for returning late to the bus depot

The respondent submitted that it did not dismiss the applicant. Rather, that they told the applicant on this day ‘they were not sure that [they] had any work that he was able to do’ within the respondent’s business, due to repeated incidents of poor performance.

The respondent further submitted that they had provided verbal warnings and a written warnings to the applicant regarding incidents that included speaking on the phone while driving; wearing inappropriate footwear; and for failing to escort passengers as directed. The respondent indicated that it had tried to find him other work in the business that he could do but that they exhausted all their options and did not have any work that he could do. The respondent submitted that, if it did dismiss the applicant, his dismissal was not unfair because of his poor performance.

Findings

The Commission considered the evidence of both parties. The Commission found that the evidence from witnesses called by the respondent was preferred, and that they presented as truthful and reliable witnesses.  On the other hand, the Commission found that the applicant in his evidence was not forthcoming; did not answer questions put to him; and that much of the evidence was implausible.

The Commission found that the evidence showed that there were many instances of poor performance, and that warnings were given that indicated continuation of such instances could lead to possible separation of employment. The Commission considered that the respondent gave the applicant a reasonable opportunity to improve his performance, but that this did not improve to the standard reasonably expected of an employee in his role. 

The Commission considered that the respondent did not dismiss the applicant in such a way that was so harsh, oppressive, or unfair that it amounted to an abuse of that right and dismissed the application. 

The decision can be read here.

Penalties imposed on employer for underpayment of vulnerable employees

 The Industrial Magistrates Court has imposed penalties on an employer for regular underpayments of two employees. 

Background

The respondent was a sole trader, who operated a hairdressing business trading at various locations. The claimant alleged that the respondent had breached the Hairdressers Award 1989 (WA) (the Award) in failing to maintain proper records and for failing to pay two employees their lawful entitlements pursuant to the Award during their periods of employment. 

Contentions

The claimant alleged that the respondent underpaid one employee $23,944.35, by contravening the Award on 242 occasions; and underpaid another employee $53,414.73, by contravening the Award on 400 separate occasions. 

In addition to seeking orders that the respondent pay the underpayments owing to the employees, the claimant also sought penalties and costs. The claimant submitted that the underpayments were substantial, and the respondent’s failure to keep or provide records meant that the entitlements claimed were only part of the total underpayments. The claimant submitted that the employees, being migrant workers on visas with limited command of English, were vulnerable. 

The claimant submitted that the respondent did not cooperate with industrial inspectors investigating the contraventions and had not taken action to correct the underpayments of the employees. The claimant contends that the respondent’s disregard for his legal obligations to his employees was at the serious end of the spectrum and contended that the Court should consider a significant penalty in respect to the contraventions in the interest of deterrence. 

The claimant noted that, while the Full Bench of the Commission in the decision of Callan v Smith [2021] WAIRC 216  adjusted the assessment of penalties by 40% considering the overlap between separate contraventions, in the assessment of this matter, regard should be given to the business model applied by the respondent. 

The respondent did not provide any submissions to the Court in respect to the application for penalties and costs. 

Findings 

The Industrial Magistrate considered the non-exhaustive range of factors set out by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7, and adopted in Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 to determine whether the conduct calls for the imposition of the penalty and if so, the amount, these being: 

  • The nature and extent of the conduct which led to the breaches;
  • Circumstances in which the conduct took place;
  • The nature and extent of any loss or damage sustained because of the breaches;
  • Whether there has been any similar previous conduct by the respondent;
  • Whether the breaches are properly distinct or arose out of one course of conduct;
  • The size of the business involved;
  • Whether or not the breaches were deliberate;
  • Whether senior management was involved in the breaches;
  • Whether the party committing the breach had exhibited contrition;
  • Whether the party committing the breach has taken corrective action;
  • Whether the party committing the breach had cooperated with enforcement authorities; and
  • The need for specific and general deterrence. 

The Industrial Magistrate noted that the role of the Court is to fix a penalty appropriate to the circumstances in which the contravention occurs, and the need to maintain public confidence in the statutory regime. The Industrial Magistrate determined that the separate contraventions could be considered as a single course of conduct, and as such, the penalties required a 40% reduction for each contravention. In considering the above factors, and with a 40% reduction applied, the Industrial Magistrate ordered that a penalty of $15,228 and $27,576 be paid for the underpayments. The Industrial Magistrate additionally ordered the respondent pay the claimant costs of $82.50. 

The decision can be read here.

No extension of time granted to applicant who chose to progress claim in the FWC

 The Commission has found that no extension of time is to be granted to an applicant who made a deliberate decision, informed by legal advice, to continue to progress her claim with the Fair Work Commission (FWC) before commencing a claim in this Commission.

 Background

The applicant was employed part-time as a Support Programs Coordinator from February 2013 to April 2020. In March 2020, the respondent ceased the activity and support programs managed by the applicant due to the impact of COVID-19. The respondent discussed with the applicant possible options considering the cessation of activity, including standing down from her employment, reducing hours or taking annual leave.   

In April 2020, the respondent informed the applicant that consideration was being given to abolishing the position of Support Programs Coordinator.  The applicant was invited to meet to discuss potential redundancy; any suggestions to avoid the redundancy; possible alternate positions to which she may be redeployed; the impact on her and any other matters.  On 17 April 2020, the applicant was made redundant. 

In May 2020, the applicant made an unfair dismissal claim to the FWC. The respondent opposed the claim and notified that it had a jurisdictional objection on the basis that it is not a national system employer.  A conciliation conference was held on 25 June 2020 in the FWC, however no agreement was reached. On 29 June 2020, the applicant discontinued her claim in the FWC and commenced an application with the Commission. 

Contentions

The applicant asserted that she was not consulted, the redundancy was not genuine, and the implementation of the redundancy was rushed and chaotic.  The applicant contended that she ought to have been offered JobKeeper payments as were other employees of the organisation. The applicant submitted that the reasons for the delay in her application were outside of her control, and the respondent, by agreeing to enter into conciliation in the FWC, was seeking to delay any potential claim in the Commission. 

The respondent opposed the application and contended that the position was abolished for business and operational reasons and the process of implementing the consequential redundancy was not harsh nor unfair.  The respondent asserted that it was not appropriate to continue to engage the applicant under the JobKeeper assistance scheme, because it did not intend her position would continue.  The respondent submitted that the claim was made outside of the 28-day limit and that it should not be accepted out of time. 

Findings

In determining whether to grant an extension of time, the Commission considered the reasons for the delay, any action taken by the applicant to contest the termination other than by applying under the IR Act, the prejudice to the respondent, including prejudice caused by the delay. 

The Commission found that the applicant made a deliberate decision, informed by legal advice, to continue to progress her claim with the FWC and not make an application to this Commission, resulting in the delay. The Commission noted that the applicant had taken action to contest the dismissal other than by this claim and noted that there was little prejudice to them arising from the delay.  

The Commission found, however, that the decision to abolish the position did occur due to a genuine redundancy, in that the respondent determined the role was no longer required, and that it was not financially viable to maintain the role. The Commission noted that at the time the applicant’s position was made redundant, the unprecedented nature of the COVID-19 health crisis, and the changing environment and developing events may have been confusing. The Commission considered, however, that the respondent fulfilled its obligations to inform the applicant as soon as practicable after a decision was made; to provide the applicant with an opportunity to inform them of the impact of the decision; and to consider any alternate arrangements that may mitigate the negative impacts. 

The Commission determined that the applicant did not demonstrate the merits of her claim and the referral out of time was not accepted. 

The decision can be read here.

Adjournment granted to enable party to obtain alternative representation

The Commission has granted an adjournment  in an appeal against the decision of the Commissioner of Police to remove a Police Officer, to enable the applicant to obtain representation and adequately prepare her case.

Background

The appellant was a First-Class Constable in the Western Australian Police Force.  The appellant was removed from the Police Force by the respondent on 6 April 2021 and filed an appeal against her removal under s 33P of the Police Act 1892 (WA).   The Commission listed the appeal for hearing on 25 November 2021, having regard to the appellant’s request for sufficient time to obtain legal representation and to attend to certain medical matters.  On 12 November 2021, the appellant sought an adjournment of the appeal. 

Contentions

The appellant sought an adjournment on the basis of difficulties encountered with her legal representatives.  The appellant indicated that she had consulted solicitors and had believed they were going to represent her. It was not until 12 November 2021 that the appellant contended that she discovered this was not so, and her case on the appeal had not been prepared.  The appellant contended that she was therefore unprepared to proceed with the appeal and required further time to obtain alternative legal representation. The appellant noted that, in addition to not having undertaken research and preparation for the hearing, she was not medically fit to appear before the Commission. The respondent indicated that it neither consented to nor opposed the appellant’s application. 

Findings

The Commission noted that it may exercise procedural powers to adjourn a proceeding to any time and place.  The Commission outlined that where the refusal of an adjournment would result in a serious injustice to one party, an adjournment should be granted, unless in turn, this would mean a serious injustice to the other. The Commission noted that a lack of preparation for a proceeding is not generally in and of itself a sufficient reason to grant an adjournment

The Commission indicated that whilst it was concerned that the appellant had already been afforded a generous amount of time, it would grant an adjournment to enable her to obtain alternative representation and prepare her case. 

The decision can be read here.

December closures

The Commission will close at 12pm on Friday 24 December 2021. The Registry phone and email services will be monitored remotely from 12pm until 4:30pm for any urgent enquiries on this day. Ordinary services will resume from 8:30am on Tuesday 4 January 2022. 

If you have an issue relating to an urgent industrial matter requiring immediate attention  between 29-31 December, please contact the Registrar directly on 0404 044 338 during usual business hours (8:30am to 4:30pm). If unable to reach the Registrar during this time, the Deputy Registrar may be contacted on 0419 822 989. 

All Registry services are unavailable on weekends, public holidays and outside of usual business hours.

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