The attached document replaces the document previously issued with the above code on 8 June 2022.

The name of the Respondent is to read 'Hired Labour Pty Ltd'

[2022] FWC 1450

Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - where there was a valid reason for the Applicant's dismissal

• [1] Jason McGown (the Applicant) lodged an application contending that he was unfairly dismissed by Blenners Transport Pty Ltd (Blenners) and seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Blenners, in its Form F3 - Employers Response, contended that the Applicant was not employed by them and that it was thus not the correct respondent. Directions were issued for the filing of material in respect of that jurisdictional hearing. One document provided by the Applicant ahead of that hearing was his employment contract which clearly indicated that he was employed by Hired Labour Pty Ltd (Hired Labour/the Respondent).

• [2] At the virtual hearing held before me on 7 March 2022, the Applicant appeared for himself. Lorena Naranjo appeared in her capacity as the Human Resources Manager of both Blenners and Hired Labour Pty Ltd. Dale Summerville, Line Manager, appeared only for Blenners. At that brief hearing, the Applicant applied for his application to be corrected to replace Hired Labour Pty Ltd as the correct Respondent. Ms Naranjo gave evidence that she too understood that Hired Labour Pty Ltd was the Applicant's employer and consented to the amendment. Accordingly, I ordered that Hired Labour Pty Ltd be inserted as the Respondent to these proceedings. Further directions were issued with respect to the filing of material in respect of the merits.

• [3] A hearing was scheduled for 23 March 2022 and was not concluded. The hearing was then rescheduled to 1 April 2022 at the Applicant's request. On 30 March 2022, the Applicant advised that he was unable to attend due to work. The hearing was then rescheduled to 7 April. The Respondent advised they were unavailable for this date and both parties were informed on 5 April 2022 that the hearing was to be listed for 28 April 2022 which the parties attended.

• [4] So as to characterise the Applicant, I must comment that the attitude and behaviour of the Applicant has made progress and determination of the matter difficult. I found the Applicant non-compliant with directions, however I made allowances for reasons that will be made clear later in the decision and showed leniency and rescheduled the matter several times. Furthermore, his behaviour during the hearings were argumentative and disruptive. The Applicant in both hearings was driving a truck and despite being given notice well ahead of time did not make himself available in a location that would have made the hearing more productive.

• [5] For the purposes of context, the Applicant believes that COVID-19 is not real and is the result of Facebook and social media. [PN 177] I also found him to be belligerent, disruptive and would frequently interrupt proceedings. It is also to be noted that he is a veteran with 18 years' service and has by his own report suffers from anxiety and depression.

• [6] Section 396 of the Act requires that I be satisfied of four matters before considering the merits of the Applicant's application. Neither party disputed and I am satisfied, that the Applicant made his application within the 21-day period required by s.394(2) of the Act, that he was a person protected from unfair dismissal (as he earned less than the high-income threshold), that his dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.

• [7] The Applicant commenced employment on 19 March 2021 as a long-haul truck driver for Hired Labour which provided services to Blenners Transport. It is to be noted that the employment contract was for a casual driver, the Respondent asserted that the Applicant was a casual, but no evidence was provided on the Applicant's work pattern and the Respondent did not press any objections regarding the casual contract.

• [8] The Respondent provided some background which broadly was accepted by the Applicant although some of the interactions were disputed. Given the lack of evidence provided by the Applicant I will do my best to provide the context to the Applicant's termination.

• [9] In October 2021 the Applicant was stopped for fuel in a country town (purportedly Goondiwindi) he was not wearing a mask at the station and there was a mask requirement in place. Evidently, he was reported, and the police had a discussion with him, during the conversation when there was the possibility of a fine being levied, he stated words to the effect that he was going to hang himself. Shortly afterwards he was visited by a group of police and an ambulance was called as they were concerned about his comment regarding hanging himself. He was taken to the hospital where the Applicant made alleged racist comments to the attending doctor. He returned to his truck and drove on to Brisbane. He was warned that behaviour was unacceptable and impacted upon the reputation of the Respondent and the Company they drove for and was in breach of the Code of Conduct.

• [10] On or about the 12-13 December 2021 the Applicant made a delivery to a Woolworths Depot in Adelaide, when he arrived at the depot a staff member requested that he wear a mask and the Applicant indicated that he does not wear a mask and that he has a medical exemption. There was a verbal altercation between the Applicant and staff at the facility with the Applicant feeling that he had been insulted. The Applicant returned to the Brisbane Depot on the 15 December 2021 where he was requested to talk with the Human Resources staff member. The staff member asked him what had occurred at the Depot at Woolworths, and she enquired about the mask and the Applicant stated that he is not required to wear a mask and has a medical exemption, the discussion with the Human Resources staff member ended in the Applicant being terminated

• [11] The Applicant was terminated because of a second incident where he was found acting against the company code of conduct and his employment contract. The Respondent received a complaint from a Customer (Woolworths Adelaide) regarding his aggressive behaviour towards their staff when they asked him to wear a mask. The Customer (Woolworths) decided to ban him from entering their Sites due to his aggressive behaviour.

• [12] The Applicant failed to provide a copy of his medical certificate regarding wearing a mask to the customer and to Blenners and Hired Labour.

• [13] In an incident in October 2021 the Human Resources person received the following information regarding the events. It was not able to be tested as this person was no longer employed by the Respondent. The Applicant does not deny that some or all the following events happened.

• [14] The Applicant was at a petrol station and had been seen in and out of the truck without a mask. A police officer came to see him later that day and he asked him why he was not wearing a mask and he said that he was seeing people with and without a mask at the petrol station. It appears that he was argumentative with the police officer and the police said he was going to get a fine. During the argument, the Applicant said words to the effect that "he was going to hang himself as this was bullshit, that he might receive a fine". He further stated to the police he was frustrated that his COVID test was delayed.

• [15] Later the Applicant called the police and argued that it was 'not right' that he was to be fined and argued with police over the phone again. As a result, 5 police officers arrived at the petrol station to talk to him again. During this an ambulance was called as he said he was going to hang himself. He claims he said this out the frustration as he would not have hung himself. Once at the hospital, he was attended to by a Doctor to whom the Applicant kept saying he didn't understand him, the Doctor allegedly walked away from the Applicant and told him he was being racist. No treatment was given to him, and he was discharged, and the hospital didn't give him a medical certificate.

• [16] The Respondent states that the Applicant put the reputation of the business at risk with their customers and because of his erratic and bizarre behaviour he may have been delayed in the hospital and not delivered his load to the customer on time.

• [17] After this incident, he was told verbally by the Respondent that he will be terminated if he continues to display unacceptable behaviour like that incident and putting the reputation of business at risk with the respondents' customers.

• [18] The incident at Woolworths shortly afterwards where he refused to wear a mask and allegedly made racist comments to a member of staff lead to Woolworths banning him from entering their site due to his 'aggressive' behaviour. Further, the Applicant failed to provide a copy of his medical certificate regarding wearing a mask to the customer and to Hired Labour.

• [19] The Respondent tendered the employment contract specifically referring to this clause

3.1 The employee will diligently and faithfully perform all the duties and responsibilities of their employment as directed by the employer and other such duties as may be reasonably required by the employer from time to time.

(a) To devote the whole of the employee's working time and attention and use the employee's best endeavours to further the development, reputation and business of the employer; and

(b) Observe all lawful directions, orders, instructions, policies and procedures (as introduced and varied from time to time) of the employer; and

(c) Not to be directly or indirectly involved or engaged in work for or provide services to any other company, business or individual, whether paid or otherwise, which may in any way conflict with the interests of the company, unless otherwise agreed to in writing by the company.

(d) Present to work in a fit manner, free from fatigue, drugs or alcohol.

(e) The employee agrees to comply with the prevailing workplace health and safety policies of both the employer and the employer's clients when visiting those client's workplaces.

(f) It is an expectation that employees will perform duties legally and consistent with all Road and safety laws pertaining to heavy vehicle operations. The employer will not expect, direct, request or offer additional payment of benefit to the employee, to commit any act that will, or is likely to, result in a breach of any law.

(a) you will comply with all policies and procedures of the Employer in place from time to time.

(b) the Employer may at any time review, implement, vary and/or terminate policies at its sole discretion

(c) the Employer's policies do not form part of your Contract; and

(d) failure to comply with the Employer's policies may result in disciplinary action, up to and including dismissal.

(e) You agree to work within the rules set under CoR Law while employing Fatigue Management Strategies and Mass Loading Limits to ensure the Employer complies with legal requirements.

• [20] The Applicant was terminated because of his second incident which was not in compliance with the Applicant's employment contract regarding his duties as an employee to faithfully and diligently perform all duties and responsibilities and also comply with company policies. The Respondent further asserted that the Applicant put the Respondent's reputation at risk. The Respondent asserts that the Applicant was not unfairly dismissed.

• [21] In both these reported events the Applicant insists that he was not required to wear a mask due to his medical condition. Further he asserts that a medical certificate is not required as proof. He did submit a medical certificate, but it was dated 3 November 2021 which is several days following the Woolworths incident.

• [22] The Applicant did make a lot of assertions however little evidence was put forward, his testimony ranged from grandiose statements to repetitious and disruptive interjections.

• [23] The Applicant had a fervent belief that COVID-19 was not real, and the measures taken to reduce the impact of COVID-19 were nonsensical. Further, he had a firm view that he had been wronged and seemed to think the altercations regarding his non mask wearing were blown well out of proportion and his termination contrived.

• [24] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

• [25] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me.[1]

(a) Whether there was a valid reason for the dismissal

• [26] To be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[2] and should not be "capricious, fanciful, spiteful or prejudiced."[3] 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."[4]

• [27] The reasons the Respondent terminated the employment of the Applicant as stated was for not complying with the policy and for conducting himself in an inappropriate manner which could harm the Respondent's reputation. I have no doubt the Applicant was disruptive and refused to follow the mask guidelines on the basis that he believed that he was entitled to an exemption for medical reasons. However, proof of his medical exemption was not provided to the employer and the certificate was dated after the incident at Woolworths warehouse. I do not believe that the Applicant had any evidence regarding his medical condition when he attended the warehouse, and the ensuing fracas was the result of the Applicant prosecuting what he believed to be his rights.

• [28] Despite whether he had an obligation to provide proof of his medical status regarding mask wearing he conducted himself in such a manner that Woolworths contacted the Transport company and banned the Applicant from returning. This follows on from the incident at the petrol station where once again it can be seen that it is not the issue of mask wearing that necessarily caused the ensuing theatre of events involving several police and ambulance and a visit to the emergency department. It was the conduct of the Applicant that created the whole scenario. He was warned about how he conducted himself following the events and that he may be terminated for any similar future incident.

• [29] The Respondent was challenged to manage the Applicant who displays disruptive and impulsive behaviour and, in my observation during the hearing, had an inability to self-manage. I consider that the Applicant may have some underlying medical conditions however apart from his own testimony no evidence was led regarding any conditions that may have impacted his conduct in his role. I find that the Respondent had a valid reason for the termination of the Applicant's employment following his conduct which did not represent the business in the manner in which he was contractually bound.

(b) Was the Applicant notified of the valid reason?

• [30] I am satisfied that the termination letter provided the reason for the Applicant's termination. He had been previously warned about his conduct prior to the event at Woolworths. The final issue of his misconduct was made clear to the Applicant as the reason for his termination. That he disputed the matter and objected to the manner that it was communicated it nevertheless was provided with notification. This weights positively in favour of the dismissal not being unfair.

(c) Was the Applicant given an opportunity to respond to any valid reason?

• [31] The Applicant did have a meeting where he was asked to explain what happened, unfortunately I have only the Applicant's view of what occurred. He states that the HR person did not listen or understand and he himself also had difficulty making himself understood. On balance given the Applicant's predilection for disruptive conduct I find that it was probable that he was asked to explain what happened at the Woolworths warehouse however the conversation may not have had a measured response from the Applicant and in the end the meeting may have been perfunctory. Without stronger evidence I weight this factor neutrally.

• [32] No evidence was provided by either party whether the Applicant wished to have a support person and was not allowed. I weight this factor neutral.

(e) Was the Applicant warned about unsatisfactory performance before the dismissal?

• [33] The termination was for conduct and not performance and so I weight this factor neutral

Size of the Respondent's Enterprise (s.387(f)) and Presence of a Human Resource Specialist (s.387(g))

• [34] The process was manged in line with the size of the business, and they had a dedicated HR representative. This is a slightly positive weighting.

• [35] The outcome was not harsh relative to the circumstances of the matter, the termination was done following a second incident of which the Applicant had been warned that if another incident occurred of a similar nature he would be terminated. On balance the I do not consider the dismissal to be harsh, unjust or unreasonable.

• [36] I have made findings in relation to each of the criteria in s.387 of the Act, as relevant. For the reasons outlined above, The Respondent had a valid reason and I am not satisfied that the Respondent's dismissal of the Applicant was harsh, unjust or unreasonable.

• [37] Accordingly, I order that the application be dismissed.

[1] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].

[2] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995)[1995] IRCA 333; , (1995) 62 IR 371, 373.

[3] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995)[1995] IRCA 333; , (1995) 62 IR 371.

[4] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

Printed by authority of the Commonwealth Government Printer