Bush v DnM Computers Pty Ltd [2003] QIRC 202 (2003) 174 QGIG 1019

21 November, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1019 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement James Bush AND DnM Computers Pty Ltd (No. B78 of 2003) COMMISSIONER FISHER 6 November 2003 Application for reinstatement – Written warnings – Section 77 Industrial Relations Act 1999 – Company manual – Attendance – Reinstatement not practicable – Compensation. DECISION James Bush has filed an application seeking reinstatement to his former position with DnM Computers Pty Ltd (the Company). Mr Bush was employed from 5 July 2001 until his dismissal in December 2002. Each of the parties in this matter was self represented. The Commission endeavoured to extend assistance to both parties in order that relevant material might be put before it on which a decision could be made. Inordinate difficulties were experienced in trying to obtain adequate witness statements from the respondent that complied with the Directions Order. The Commission was compelled to grant leave to the respondent to adduce more evidence in chief so that its case could be understood. There were further complications. The three statements of evidence from the respondent’s witnesses were in substantially similar terms especially those of Dene Mills, the General Manager and Stephen Tritton, a Store Manager at the time of Mr Bush’s dismissal. The applicant alluded to the credibility of the witnesses given their similar witness statements. Having heard the witnesses and in light of the complete lack of understanding of the nature and purpose of a witness statement, despite having been provided with detailed written instructions, I draw no adverse references against the Company on this point. I accept the similarities are attributable to ignorance. Another complication was the absence of documentary material from the respondent on critical matters. One of the criticisms of the applicant that led to his dismissal was his tardiness. No time and wages records were kept. Where rosters were prepared, they were done so on computer but as the computers are turned over every three to six months, the rosters were deleted. The applicant was also criticised about absences from work without notification. Again, there was no documentation of these absences. The best the Company could do was to provide at my request, subsequent to the hearing, extracts from a diary which purport to record Mr Bush’s various absences from work. Nowhere is the Commission informed about whose diary the extracts are taken from nor are they authenticated. While Mr Bush was provided with copies of material supplied after the hearing and given the opportunity to comment on it, the diary extracts can not be given any weight because they were not property identified. It is also not known whether the entries were made contemporaneously. On a more positive note, the Company is now more aware of its responsibilities under the Industrial Relations Act 1999 (the Act) as an employer and has implemented various measures to ensure compliance. Mr Bush was issued with his first written warning on 11 October 2001 by the General Manager. The Company did not rely on this warning in these proceedings as a copy of the letter had been lost. The Company restarted the warning count on discovering the warning of 11 October 2001 was missing. This was the appropriate course of action to take but I do note that in his evidence Mr Bush freely acknowledged receiving this warning letter. In fact, it was he who was able to identify the date it was given, but like the Company, did not possess a copy of it. The warning process was reinstituted in October 2002 following an extended period where, on the evidence of Mr Mills, weekly discussions had been held between him and Mr Bush during that month about his tardiness and/or non-attendance at work. This had followed a period where Mr Bush’s attendance was not in issue but for a substantial period before that attendance matters had been of concern. Mr Tritton also said that he had held more than ten discussions with Mr Bush before issuing the first warning letter on 25 October 2002. It dealt with Mr Bush’s lateness for work. He said Mr Bush refused to sign this letter. Mr Bush in his evidence denied that weekly discussions were held. He acknowledged that a first warning letter was produced but said its date and content were different to that before the Commission. Mr Bush said that he refused to sign the letter that was produced as he had supplied to the Company a medical certificate for his three days of absence. Mr Bush said he did not retain a copy of the warning letter. A second written warning was issued by Mr Tritton on 11 November 2002. It was issued because despite Mr Bush arriving on time between 25 October and 10 November 2002, he was late for work on 11 November 2002. The issues of concern were identified as follows: “ • Arriving late for work many times in the past few months. • Not giving notice when arriving late to work. • Not showing up for work when you have been rostered to open the store and otherwise.”. Mr Tritton said that he took Mr Bush through the contents of the letter. He did not ask Mr Bush to sign the letter given his refusal to sign the first letter. Mr Bush denied receiving the second warning. Mr Tritton said that after the second warning was issued Mr Bush was punctual and attended on his rostered days until 3 December 2002. On that day Mr Tritton said Mr Bush failed to attend work and did not provide any notification of his absence. Accordingly, a third written warning, which was also the notice of termination, was prepared on 3 December 2002. Mr Tritton handed it to Mr Bush on his arrival at work on 4 December 2002, sent Mr Bush home and said Mr Mills would contact him. Mr Bush provided a different version of the events of 4 December 2002. He acknowledged being sent home but said Mr Tritton told him another person had been organised to work that day. Mr Bush said that he was told this had occurred because of his failure to attend a meeting after working hours for consecutive weeks. He said on asking Mr Tritton whether he was being fired, he was advised he was not. Mr Bush went home and attempted to contact Mr Mills who was out of the State. On Mr Mills’ return Mr Bush met with him. Mr Bush said Mr Mills told him that he would discuss the matter with Mr Tritton and asked Bush to contact him on 9 December 2002. Despite Mr Bush making several attempts, he could not contact Mr Mills. Mr Bush said his normal pay was deposited into his account on 8 December 2002. He discovered further monies had been paid into his account on 13 December 2002 and from that assumed he had been dismissed. Mr Tritton said the third warning letter had also been sent to Mr Bush’s known home address but had been returned. -- 1 of 3 -- 1020 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 November, 2003 In this matter there are clearly different versions of the events leading up to the warning letters and the contents of those letters. Mr Bush went so far as to claim that the warning letters that were attached to Mr Tritton’s witness statement had been manufactured after his dismissal. I do not accept this contention. Mr Tritton was at pains during his evidence to point out that Mr Bush was a valuable member of the team and an experienced technician who contributed to the functioning of the store. This view was repeated by Tony Westgarth, the Sales Manager, in his evidence. It is unlikely in my view that given this attitude towards Mr Bush’s contribution, the Company would manufacture a case against Mr Bush. I am satisfied that the warning letters produced in evidence were genuine. I am also satisfied that the warning letters were produced to Mr Bush. In my view Mr Bush’s denials about receiving the second and third warning letters were hollow. Because he was not required to sign the second warning letter he believed he could simply deny its existence. I accept Mr Tritton’s evidence that he handed Mr Bush the dismissal letter but given the events that followed I have concluded that Mr Tritton did not inform Mr Bush of the contents of the letter nor did Mr Bush read it. I am further satisfied that the warnings were for genuine reasons. Both Mr Mills and Mr Tritton gave evidence that they had spoken to Mr Bush on many occasions about the attendance issues. There is no record of these conversations and I doubt whether they were anything more than just to chip Mr Bush about his lateness or non attendance. Their lack of formality failed to have any impact on Mr Bush. On the matter of whether the warnings were for genuine reasons I was particularly impressed by the evidence given by Mr Westgarth. Although he was not the author of the warning letters, he gave evidence that he had spoken to Mr Bush on many occasions about his tardiness and absences from work. While these conversations could not be construed as counsellings, and were more akin to friendly chats, Mr Westgarth’s managerial position in the Company should have alerted Mr Bush that there was a level of dissatisfaction about these matters on the part of the Company and that he would need to improve. It was apparent from Mr Bush’s evidence that he failed to give any credence to Mr Westgarth’s concerns. Section 77 of the Act sets out a range of matters the Commission must consider in deciding whether a dismissal was harsh, unjust or unreasonable. The first matter is whether the employee was notified of the reason for the dismissal (s. 77(a)). As explained earlier I am satisfied that the third warning letter, which was also the notice of termination, was provided to Mr Bush on his arrival at work on 4 December 2002. The reasons given in that letter were identical to those listed in the second formal written warning of 4 November 2002. It is somewhat unusual for a third warning letter to also serve as a notice of dismissal. The more common practice is to have three written warnings with the notice of dismissal following the third written warning. One of the practices for which the Company is to be commended is its manual which is available to all employees. This manual contains a section headed “Termination” which provides at the third dot point: “If you are still not performing the requirements of your employment, you will receive your third final warning letter and be terminated on the spot and paid in lieu.”. The provision of the third written warning, which also served as the dismissal notice, was thus consistent with the Company’s policy. Section 77(b) of the Act requires the Commission to consider whether the dismissal related to the operational requirements of the business or the employee’s conduct, capacity or performance. The first warning letter identified unacceptable work practices as the reason for its being issued. These were described as lateness or non-attendance. The second warning letter detailed concerns about Mr Bush’s work performance, viz, attendance issues. The letter goes on to instruct Mr Bush to improve his performance in respect to attendance matters. The third written warning also relies on attendance issues as the reason for the dismissal. The Company characterised the attendance issues as performance related. While some might see them as more related to conduct than performance, it is clear that the dismissal was for a prescribed reason under the Act. The Commission must also consider whether the employee was warned about the performance (or conduct) or given an opportunity to respond to the allegations about it (s. 77(c)). The evidence shows that Mr Bush was given two written warnings about the matters of concern to the Company. These warnings put Mr Bush on notice that his employment would be in jeopardy if progress was not made in these areas. Mr Bush was not given an opportunity to respond to the allegations about his non-attendance on 3 December 2002, he was simply provided with the third written warning and dismissal notice on his arrival on 4 December 2002 and told to go home. Section 77(d) of the Act enables the Commission to take into account any other matters it considers relevant. Several issues arise under this heading. Although the issuing of the third written warning as the dismissal notice was consistent with the Company policy, the second written warning states the following: “ . . . We will give you two weeks to improve your performance, in the areas outlined above. If at the end of this period we are unsatisfied with your progress, we may need to progress the next stage of the disciplinary process. The disciplinary process for this Company involves three (3) Formal Written Warnings. After the 3 rd Formal Written Warning your employment will be terminated.”. (emphasis added) Two matters of concern are immediately identifiable. Firstly, during the two week period following 11 November 2002, no issues about Mr Bush’s attendance arose. It was not until 3 December 2002 that the next attendance issue occurred and this was the incident that caused the dismissal. This was three weeks after the second warning letter had been issued and not within the two week improvement period set by the Company. Admittedly it occurred within a short space of time but nonetheless Mr Bush had satisfactorily completed the improvement period. The second matter of concern is that Mr Tritton misstated the Company’s disciplinary process. Mr Bush was entitled to rely on Mr Tritton’s statement of the process. No attempt was made by the Company to rectify the misstatement between the second warning letter and the dismissal. The Commission is also concerned about the events of 4 December 2002 and subsequently. Mr Tritton gave evidence that he told Mr Bush that Mr Mills would contact him. This did not occur and it was Mr Bush who contacted Mr Mills. Regrettably in his evidence Mr Mills did not address any of the events described by Mr Bush as occurring post 4 December 2002. Although this was probably an oversight due to inexperience, the Commission is left with unchallenged evidence. Mr Mills said he instructed Mr Tritton to issue the letter of dismissal. Yet if this was so, why did Mr Mills not simply inform Mr Bush at their meeting on 6 December 2002 that he had been dismissed and why was his pay in lieu of notice not paid into his account along with his normal pay on 8 December 2002? The Commission also notes that s. 393(6) of the Act requires that an employer pay to an employee all monies owing within three days of termination. In all of the circumstances the only conclusion I can draw is that some confusion existed on the part of the Company as to whether Mr Bush had been dismissed on 4 December 2002. -- 2 of 3 -- 21 November, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1021 The Commission acknowledges that DnM Computers is a small business, albeit one that is growing rapidly. It has not yet allocated specialist resources to manage human resource issues that result from engaging staff and contractors. While it has a termination policy that provides a formal disciplinary process, mistakes were made in relation to the implementation of that policy in respect of Mr Bush. In his evidence Mr Tritton referred to Mr Bush being a law unto himself in regards to attendance issues. From his demeanour during the proceedings, which was a mixture of arrogance and scorn, I can accept that description. Equally I can accept Mr Mills’ unchallenged evidence that other employees were beginning to question management about Mr Bush’s disregard of proper timekeeping and notification of absences. Determination of these matters involves weighing and balancing competing evidence. While I am satisfied that the Company has satisfactorily met a number of the matters provided by s. 77 of the Act, I have concluded that the dismissal was unfair primarily on the grounds that the last incident occurred outside (albeit barely) the two week improvement period set by the Company and in light of the events of 4 December 2002 and subsequently. Neither of the parties consider that reinstatement is practicable. Based on the state of the relationship demonstrated at the hearing, I agree. This leaves the remedy of compensation. Given my findings that the dismissal was unfair for procedural rather than substantive reasons, compensation is being awarded for the period of time that appropriate procedural fairness should have been afforded. It seems that Mr Bush was able to sustain his attendance for a period of two to three weeks before the problems recurred. I understand that Mr Bush was paid $800 gross per week. Accordingly, I order that DnM Computers Pty Ltd pay an amount of $2,400 to be paid to James Bush within 22 days of the date of this decision. Such amount is to be taxed according to law. G.K. FISHER, Commissioner. Hearing Details: 2003 26 September Appearances: Mr J. Bush appearing on his own behalf. Mr D. Mills on behalf of the respondent. Released: 6 November 2003 Written Material: 2003 30 September 15 October -- 3 of 3 --