| [2018] FWC 1627 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jeffrey Pool
v
Cash in Transit Pty Ltd T/A Secure Cash
(U2017/10354)
COMMISSIONER MCKINNON |
MELBOURNE, 19 MARCH 2018 |
Application for an unfair dismissal remedy.
[1] Jeffrey Pool was employed as a part-time Banking Courier by Cash in Transit Pty Ltd t/as Secure Cash (Secure Cash) from 3 March 2017 until 20 September 2017. His employment was terminated after customer complaints relating to his conduct at work and alleged breaches of confidentiality.
[2] On 25 September 2017, Mr Pool applied to the Commission for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Pool says the dismissal was unfair because he was terminated without warning and without any notice of the alleged customer complaints which were never investigated. As a result, he was not given any opportunity to respond or to take whatever steps were necessary to keep his job.
[3] On 13 October 2017, Secure Cash filed a response to the unfair dismissal application. It says the dismissal was not unfair because several complaints about Mr Pool’s conduct had been received and the alleged breaches of confidentiality placed him and Secure Cash at risk.
[4] The matter was conciliated on 18 October 2017 and 8 February 2018 but was not settled. On 8 February 2018, I sought the views of the parties about whether to conduct a conference or hold a hearing to deal with the matter. Taking those views into account, I decided to deal with the matter as a determinative conference.
[5] Written materials were filed in support of the application by Mr Pool on 19 December 2017 and in reply by Secure Cash on 13 February 2018. On 16 February 2018, the determinative conference was held in Melbourne. Mr Pool was self-represented and Ms Bethaney Bacchus, National General Manager, represented Secure Cash. There were no other witnesses.
[6] The facts in this matter are either largely agreed or not in dispute. The facts as I find them are set out below.
[7] Secure Cash is a cash collection business. It employed Mr Pool as a Banking courier.
[8] The role of banking courier involves attending customer premises for approximately 5 minutes at a time to collect or deliver cash as required. It requires employees to discretely announce their arrival to the customer, show identification, wait for customer direction about the money collection, sign and have the customer sign for the transaction and leave. Couriers have set runs for the customer premises they attend each day. The job involves security risk.
[9] Mr Pool has a psychiatric condition 1 and a child with special needs. His caring responsibilities mean he can only work during the day. Mr Pool has undertaken training toward a Certificate II in Security Operations. Part of the training involved “cultural sensitivity” and “building rapport”.2
[10] After obtaining work with Secure Cash in February 2017 and undergoing relevant training, Mr Pool worked without incident from March until July 2017. 3 He was one of only a few employees working in the Frankston area. Secure Cash valued the thorough feedback he gave about his work and business operations generally.4
[11] In or around July 2017, Secure Cash received negative verbal feedback from a customer about Mr Pool’s conduct at work. 5 In response, it decided to create a new, non-customer facing role for Mr Pool as ‘change order facilitator’. The new position was offered to Mr Pool on or about 14 July 2017.6
[12] Mr Pool was flattered by the offer of the new role and felt he had established trust with Secure Cash. However, he declined the offer because it would require him to work at night and this was difficult for him due to his caring responsibilities. 7
[13] On 14 August 2017, a Frankston school customer emailed Secure Cash to ask for a change in its collection day to avoid having Mr Pool as its courier because he had responsibility for handling the school’s money but was “not as professional”. 8
[14] The Frankston school was removed from Mr Pool’s run sheet. 9 Except in this way, Mr Pool was not told of the change or that he was no longer to attend the school.
[15] On 15 August 2017, Mr Pool received the modified run sheet but did not notice there had been a change because he was using his own run sheet that he had developed. As a result, he mistakenly attended the Frankston school. 10 The customer was not pleased.11
[16] On 22 August 2017, Mr Pool attended the Frankston school premises again and the customer again contacted Secure Cash to say it did not want him to come back. 12 That day, Mr Pool received an instruction to “please stop attending” the Frankston school.13
[17] There is no doubt that Mr Pool attended the Frankston school premises twice after Secure Cash had decided to replace him as its courier. This decision was communicated to Mr Pool via altered run sheets which he did not check before attending the school on either 15 or 22 August 2017. His attendance at the school on each occasion was an innocent mistake. It could have been avoided with a phone call or text message from Secure Cash to confirm the change.
[18] On 2 September 2017, Secure Cash received another customer complaint about Mr Pool being its courier, as he had appeared annoyed when asked to show his identification and took too long in store “attempting to build rapport” by talking to staff and commenting on their names or personal characteristics instead of just doing his job. 14 Mr Pool disagreed that he was frustrated but agreed that he spent time in store talking to staff and that he had made comments along the lines set out in the complaint. He explained that he was trying to be culturally sensitive and to build rapport. He did not realise what he was doing was inappropriate.
[19] There was a staff meeting in Melbourne on 5 September 2017 attended by both Ms Bacchus and Mr Pool. No issue was raised with Mr Pool about his work conduct or performance. Ms Bacchus was suffering a rib injury which affected her full participation in the meeting, and did not want to raise her concerns with Mr Pool in front of other staff. 15
[20] On 8 September 2017, Secure Cash received a customer complaint that Mr Pool had “no issue telling customers what he doing and what stores he’s going to next”. The customer complained that Mr Pool had left banking spread out over the counter in front of customers, became frustrated when it was packed up while he was asked to wait for customers to be served and relating to confusion about whether a change order request had been made or received. 16 Mr Pool admitted the conduct relating to money being set out in front of customers, but explained that there was no separate secure area at the customer’s store to undertake his role. He denied breaching confidentiality and the evidence does not establish any such breach.
[21] From 8 September 2017, Secure Cash began to consider internally how to deal with Mr Pool in light of the customer complaints it had received. Eventually it came to the conclusion that the employment relationship was “just not going to work”. 17
[22] On 10 September 2017, Mr Pool did not receive his regular runs for the week or any advice that things had changed. After sending a text message query, he was advised there was no work for that day. He was later advised that there would be no work for the following two days and that he would receive an email from Ms Bacchus. 18 He worked on Thursday 14 September 2017.19
[23] On 15 September 2017, Secure Cash received a further customer complaint about Mr Pool taking too long to talk to employees, referring to them as his family members, commenting on someone undressing, asking them to sing for him and suggesting he might take them to karaoke. 20 Mr Pool agreed that he spent time in store talking to staff and that he had made comments along the lines alleged, as he was trying to build rapport.
[24] The customer complaints were accepted at face value by Secure Cash but were not communicated to Mr Pool. There was no investigation into the complaints. 21
[25] On 20 September 2017, Mr Pool emailed Secure Cash seeking advice or feedback about his position as his hours had been reduced to zero without any communication. 22
[26] On 20 September 2017, Secure Cash advised it was terminating his employment and for the first time, provided him with a summary of customer complaints which included an alleged breach of confidentiality on 8 September 2017 when he told customers what he was doing and where he was going next. 23
[27] On 20 September 2017, Mr Pool responded to the letter of termination. He apologised sincerely, asked that his termination be reconsidered and replaced with a warning and sought an opportunity to improve. Secure Cash did not reconsider its position. 24
[28] There is no dispute that Mr Pool’s application was filed within the standard 21 day time limit required by the Act.
[29] Under section 385, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; that the dismissal was harsh, unjust or unreasonable; that the dismissal was not consistent with the Small Business Fair Dismissal Code; and that the dismissal was not a case of genuine redundancy. 25
[30] Section 382 sets out when a person is protected from unfair dismissal. Under section 382, a person is protected from unfair dismissal if, at the relevant time:
• They have completed at least the minimum employment period; and
• They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.
[31] There is no dispute that Mr Pool was dismissed from his employment.
[32] It is common ground that Mr Pool’s period of employment with Secure Cash was longer than the minimum employment period, and that the Transport (Cash in Transit) Award 2010 26 (Award) applied to Mr Pool’s employment. Accordingly, Mr Pool is protected from unfair dismissal.
[33] At the time of his dismissal, Secure Cash employed 20 employees. 27 I am satisfied that the dismissal could not have been consistent with the Small Business Fair Dismissal Code28, because Secure Cash was not a small business employer at the time of the dismissal.29
[34] No issue of redundancy arose in this matter and I am satisfied that the dismissal was not a case of genuine redundancy.
[35] The phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 30 as follows:
“....It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[36] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the criteria in section 387 of the Act. Those are considered in turn.
Was there a valid reason for the dismissal related to Mr Pool’s capacity or conduct?
[37] Mr Pool took his job seriously and wanted to do well. He achieved this goal in the first few months in employment and was a valued employee. As time went by, he began to practice what he had learnt in his Certificate II security course regarding cultural sensitivity and building rapport. He began to engage more actively with customers of Secure Cash by asking them personal and culturally-related questions. He did so earnestly and with the best of intentions.
[38] Unfortunately, Mr Pool’s efforts to apply his training misfired completely. In my observation, the concepts of cultural sensitivity and rapport did not come naturally to him. His efforts to build rapport led to inappropriate exchanges with customers of Secure Cash who became uncomfortable dealing with Mr Pool. They asked Secure Cash not to send him back.
[39] This put Secure Cash in the difficult position of having customers who needed a courier in the Frankston area, and an employee who needed that work but put its customer relationships at risk. While it could have reallocated Mr Pool to other runs, absent any efforts to address the conduct of concern, in all likelihood it would have reoccurred and put further business at risk.
[40] Ultimately, Mr Pool did not dispute that there was a valid reason for his dismissal. I find that there was a valid reason for dismissal, relating to his conduct in store between July and September 2017 when he made inappropriate comments to customers of Secure Cash and their employees. This factor weighs against a finding of unfair dismissal.
Was Mr Pool notified of the reason for dismissal?
[41] It is not in dispute that Mr Pool was not notified of the reason for his dismissal until after the dismissal had taken effect. Ms Bacchus did not doubt that the dismissal came as a shock to Mr Pool.
[42] I find that Mr Pool was not notified of the valid reason for his dismissal relating to his conduct in store between July and September 2017. This factor weighs in favour of a finding of unfair dismissal.
Was Mr Pool given an opportunity to respond?
[43] There is no dispute that Mr Pool was not given any opportunity to respond to any reason for his dismissal related to his capacity or conduct.
[44] It was only after his dismissal that Mr Pool was finally advised of the reasons for it. He described his disappointment at learning, after the dismissal, that the offer of the new ‘change order facilitator’ position was to get him away from customers and not because he was valued by the business. He had taken the offer as recognition that he was trying to build good relationships and streamline business processes. Ironically, the offer appears to have only encouraged his efforts to build rapport with customers.
[45] Once Mr Pool knew of the customer complaints, he immediately responded and asked that the termination be replaced with a warning and an opportunity to improve. Ms Bacchus acknowledged his response. She said it made her feel even worse because Mr Pool was such a nice person. Nevertheless, she considered the damage done. She felt between “a rock and a hard place” as she needed someone to work in the Frankston area and had no alternative runs in other areas. She could not justify replacing other employees with Mr Pool. She was not prepared to countenance approaching customers to give Mr Pool another chance.
[46] Ms Bacchus said that prior to the dismissal, she was frustrated with Mr Pool’s performance but did not discuss it with him. Rather than counselling staff or being confrontational, her approach was to deal with customer complaints by changing courier runs. She described this as a “win/win” as employees did not end up feeling bad or in the wrong, and customers got what they wanted. She expressed concern that counselling might prompt confrontation between a customer and an employee, putting its relationship with customers at risk.
[47] The problem with this approach is that it denied Mr Pool any opportunity to recognise or learn from his mistakes and adjust his behaviour. In my view, had he known the effect he was having on Secure Cash’s customers, he would have made a genuine effort to behave differently and in all likelihood would have succeeded. All he required was a set of clear and simple instructions addressing the conduct of concern. Avoiding confrontation may have been the path of least resistance for Ms Bacchus, but it cost Mr Pool his job.
[48] This factor weighs in favour of a finding of unfair dismissal.
Was there any unreasonable refusal for Mr Pool to have a support person in discussions relating to the dismissal?
[49] There is no evidence that a support person was either requested or refused in connection with discussions relating to Mr Pools’ dismissal. This factor is not relevant.
Was Mr Pool warned about unsatisfactory performance?
[50] To the extent that Mr Pool’s conduct affected his performance generally, it is not in dispute that no warnings were ever given to him by Secure Cash. This factor weighs in favour of a finding of unfair dismissal.
The size of the employer’s business
[51] Secure Cash has operated since 2005. It previously contracted out its customer facing work to security contractors and in March 2017 decided to employ its own staff. 31 Mr Pool was one of the first persons employed.
[52] At the time of the dismissal, Secure Cash employed 20 employees. While not a small business for the purposes of the Act, it is a relatively small family business with a lean management structure of four.
[53] The size of Secure Cash’s business and its limited experience as an employer undoubtedly adversely affected the procedures it followed in effecting the dismissal. Many of the decisions it made in relation to Mr Pool were well-intentioned but ill advised. They amounted to a complete denial of procedural fairness to Mr Pool.
Access to dedicated human resources management specialists or expertise
[54] Secure Cash does not have a human resources department and its supervisors have no relevant human resources expertise. Mr David Hogg, Mr Pool’s supervisor, was responsible for communicating with him on a day to day basis, while Ms Bacchus managed the business as she considered appropriate.
[55] In my view, the absence of dedicated human resource management or expertise in Secure Cash’s business adversely affected the procedures it followed in effecting the dismissal.
Other relevant matters
[56] Ms Bacchus expressed regret for the approach taken in relation to the dismissal and acknowledged that external advice may be of benefit to the business on employment matters. This is to be encouraged for the benefit of both Secure Cash and any future employees.
[57] I also take into account that Mr Pool had only been employed for a short period and that he was paid two weeks wages in lieu of notice, which was one week more than that required under the Award.
[58] Having considered each of the matters specified in section 387, I am satisfied that the dismissal of Mr Pool was harsh. The denial of procedural fairness in this case was so significant that in my view it outweighs the valid reason for dismissal.
[59] Accordingly, I find Mr Pool’s dismissal was unfair.
[60] Reinstatement is the primary remedy available under the Act and but for a change in the circumstances of Secure Cash, I would have been satisfied on the material before me that reinstatement was appropriate in this case.
[61] However, since the dismissal, Secure Cash has changed its business model and now operates under a franchise arrangement. As a result, it only has one or two casual employees in Perth.
[62] In the circumstances, I consider that compensation is appropriate.
[63] Section 392(2) of the Act deals with how compensation is to be assessed in connection with an unfair dismissal. The established methodology was considered in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc (Bowden). 32 I adopt and apply the approach set out in that decision.
Business viability (s.392(2)(a))
[64] Other than the evidence of Secure Cash that its margins are small, there is no evidence that an order requiring it to pay compensation would impact the viability of its enterprise. I find that this factor does not warrant any adjustment in the amount of compensation.
Remuneration that would have been received (s.392(2)(c))
[65] In my view, but for the dismissal, Mr Pool would have remained in employment with Secure Cash for five months, after which its decision to adopt a franchise model may have brought the relationship to an end. This conclusion reflects the genuine goodwill between the parties, the fact that Mr Pool was otherwise valued by Ms Bacchus and his own enjoyment of, and appreciation for, his job.
[66] On the materials before me, I find that Mr Pool weekly earnings were $411.60 gross per week plus superannuation. 33 He would have earned $8,232.00 gross in the five months after dismissal ($411.60 x 20 = $8,232.00).
Remuneration earned (s.392(2)(e)) and s.392(2)(f))
[67] Secure Cash paid Mr Pool two week’s wages in lieu of notice on dismissal. There is no evidence that he had any other source of income in the period after dismissal.
[68] Accordingly, the calculation of compensation is adjusted to put Mr Pool in the position he would have been, but for the dismissal, as follows:
(a) $8,232.00 (anticipated gross earnings);
(b) Less $823.20 (remuneration earned);
(c) Subtotal = $7,408.80 gross.
Length of service (s.392(2)(b))
[69] Mr Pool had approximately 6 months’ service with Secure Cash. This factor does not warrant any adjustment in the amount of compensation in this case.
Mitigation efforts (s.392(2)(d))
[70] Mr Pool actively sought alternative employment after his dismissal but without success. In my view, he made reasonable efforts to mitigate his loss and no further adjustment in the amount of compensation warranted in this regard.
Other matters (s.392(2)(g))
[71] I do not consider it appropriate in this case to adjust for contingencies.
Misconduct (s.392(3))
[72] Mr Pool’s conduct, while inappropriate at times, was the result of his trying to improve his performance rather than act in any way contrary to the interests of Secure Cash. No adjustment of the amount of compensation will be made in this regard.
Shock, Distress (s.392(4))
[73] The amount of compensation does not include a component for shock, humiliation or distress.
Compensation cap (s.392(5)&(6))
[74] The amount of $7,408.80 gross is less than the compensation cap of 26 weeks’ pay. Accordingly, no further reduction in the amount of compensation is warranted.
Instalments (s.393)
[75] No application was made by Secure Cash to pay any compensation awarded by instalments and no order will be made to that effect.
Conclusion on remedy
[76] In my view, the compensation figure arrived at in this case does not yield an amount that is clearly excessive or clearly inadequate.
[77] For the reasons set out above, I am satisfied that a remedy of compensation in the amount of $7,408.80 plus superannuation in favour of Mr Pool is appropriate in the circumstances of this case. The amount is a gross amount subject to applicable taxation.
[78] An order [PR601307] will be issued to that effect.
COMMISSIONER
Appearances:
J Pool on his own behalf
B Bacchus for the Respondent
Hearing details:
2018.
Melbourne and Adelaide (via video link):
February 16.
Printed by authority of the Commonwealth Government Printer
<PR601306>
1 Exhibit 9
2 Audio recording of hearing, 16 February 2018
3 Exhibit 16
4 Audio recording of hearing, 16 February 2018
5 Exhibit 16
6 Audio recording of hearing, 16 February 2018
7 Audio recording of hearing, 16 February 2018
8 Exhibit 11
9 Exhibit 17
10 Audio recording of hearing, 16 February 2018
11 Exhibit 11
12 Exhibit 11
13 Audio recording of hearing, 16 February 2018
14 Exhibit 12
15 Audio recording of hearing, 16 February 2018
16 Exhibit 13
17 Audio recording of hearing, 16 February 2018
18 Exhibit 8
19 Exhibit 9
20 Exhibit 9
21 Audio recording of hearing, 16 February 2018
22 Exhibit 9
23 Exhibit 9
24 Exhibit 9
25 Act, s.385
27 Form F3
28 Fair Work Act 2009 (Cth), s.388
29 Fair Work Act 2009 (Cth), s.23
30 [1995] HCA 24; (1995) 185 CLR 410 at 465
31 Audio recording of hearing, 16 February 2018
33 Respondent’s Outline of argument: merits, 13 February 2018