Unfair dismissal cases and valid reason

This extract from a recent unfair dismissal case in the Fair Work Commission constitutes an excellent summary of the legal principles involved when the Commission is required to decide whether an employer had a valid reason to terminate the employment of an employee, one of the most important steps in an unfair dismissal case.

 

“Was there a valid reason for the dismissal related to Mr Purser’s capacity or conduct?

 

[123]  In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”101 and should not be “capricious, fanciful, spiteful or prejudiced.”102 It is not the role of the FWC to stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.103

 

[124]  The employer carries the onus of establishing a valid reason.104

 

[125]  Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.105 The question of whether the alleged conduct took place and what it involved is to be determined by the FWC 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.106

 

[126]  The Termination Letter describes the reasons for dismissing Mr Purser as follows:

 

  1. Inappropriate use of a company vehicle contrary to a business instruction (Allegation One).
  2. Claiming unworked time (Allegation Two).
  3. Breach of company values and expectations (Allegation Three).

 

[127]  In substance Mr Purser was dismissed for deceptively failing to comply with a direction to start work at 7:45am at his first work location for the day.

[128]  The failure of the employee to follow the employer’s lawful and reasonable directions can constitute a valid reason for dismissal.107

 

[129]  An employee is obliged to comply with a command of their employer which:108

 

  1. relates to the subject matter and scope of their employment;
  2. is not illegal or unlawful;
  3. is reasonable.

 

[130]  As stated by Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan:109

 

 

 

“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.”

 

[131]  The scope of employment is determined by a number of factors including:110

 

  1. the nature of the employment the employee is engaged to perform;
  2. the express or implied terms of the contract or other obligations under law; and
  3. customary practices or the course of dealings between the parties

 

[132]  Directions may be illegal where they transgress a positive law or unlawful if there was no source of power or authority enabling the direction to be given.111

 

[133]  The reasonableness test is what the ordinary bystander might consider reasonable. Whether a particular direction is reasonable is not determined in a vacuum. It requires a consideration of all the circumstances, including (but not limited to):

 

  1. the nature of the particular employment;
  2. the common practices that exist; and
  3. whether there is a logical and understandable basis for the direction.

 

[134]  Clause 3 of the Contract relevantly provided that:

 

“3.1  As far as reasonably practicable, you will be based at Wangara.

 

3.2  It may be necessary due to the Company’s business requirements for you, on temporary or permanent basis, to work at other locations in the metropolitan area and/or travel from time to time.”

 

[135]  Clause 5.3 of the Contract, relevantly required Mr Purser to:112

 

  1. diligently perform his duties and responsibilities that ATCO assigned him (which the ATCO could vary from time to time) (clause 5.3(a));
  2. devote his whole time and attention to ATCO’s business (clause 5.3(b));
  3. report directly to the Supervisor Customer Services North (clause 5.3(c)); and
  4. perform other duties and comply with all lawful and reasonable orders and instructions given by ATCO (whether or not the duties were consistent with his role) (clause 5.3(d)).

 

[136]  The job description for Mr Purser’s role identifies the following as a key duty and responsibility:113

 

“Ensures all activities and associated assets are recorded against correct cost centres to enable the accurate costing of all maintenance works and activities.”

 

 

 

[137]  Pursuant to clause 6.2 of the Contract, Mr Purser was also required to fully comply with the Code of Conduct which sets out the Company’s values and explains the principles and standards of behaviour expected of every employee in the performance of their jobs.114

 

[138]  Mr Purser most recently completed Code of Conduct training on 30 March 2023.115

 

[139]  Clause 4 of the Agreement relevantly provides that:116

 

“(c)    Ordinary hours will be worked between 6.00 am to 6.00 pm inclusive and the starting and finishing times for each day will be determined by the Company”.

 

[140]  It is also relevant that the provisions of the Agreement provide that an employee is not eligible to claim, as working time, time travelling to and from the usual place of work except in limited circumstance (emphasis added), namely:

 

  1. clause 4 (Hours of Work)

 

“(e)    Where additional hours are required to be worked, these will be regarded as overtime (refer to clause 10)”;

 

  1. clause 10 (Overtime)

 

“Any hours worked in excess of Ordinary Hours (refer to clause 4) will be treated as overtime…”;

 

  1. clause 12 (Return to Work – Minimum Call Out)

 

“(e)    Time reasonably spent travelling to and from home to attend call outs count as time worked”.

 

  1. Clause 13.5 (Travel Time and Expense Reimbursement)

 

“(b) This will be paid when Employees travel outside normal hours for the purposes of travelling to another location (that is not their usual place of work), for example, to attend training, toolbox meetings or HSE meetings

 

(c)Travel time and mileage reimbursements shall be limited to the amount by which the travel time and mileage exceeds those that are usually incurred by the Employee for travelling to and from their usual place of work.”

 

[141]  It is clear from the express terms of Mr Purser’s employment that:

 

  1. ATCO was entitled to determine the start and finishing times of his work day and require Mr Purser to work at any locations in the metropolitan area
  2. Mr Purser was required to comply with the lawful and reasonable orders and instructions given by ATCO.

 

 

 

[142]  While Mr Purser’s initial base depot was Wangara pursuant to clause 3.1 of the Contract, when that depot closed, his depot base became Joondalup depot. The nature of the GDO customer service role means that the role does not have a fixed place of work. The role is to work at customer premises and travel between customer locations in ATCO provided vehicles throughout the day. The Agreement does not require a fixed depot start location each day. Pursuant to clause 3.2 of the Contract, ATCO can require Mr Purser to work on a temporary or permanent basis at other locations in the metropolitan area and travel from time to time. Even if the Contract could be said, as submitted by Mr Purser’s representative, to only contemplate him commencing work at the Depot the fact remains that he did not attend the Joondalup depot he attended a site more than 10km away entirely unrelated to ATCO or his work duties. His excuse that during COVID pandemic employees were not permitted to attend the Depot ended when the lock downs ended.117

 

[143]  It is both lawful and reasonable for an employer to direct or instruct an employee as to their starting times and location(s). This is clearly within the scope of employment, as a necessary requirement for the commencement of work. The direction to commence work at the first work location does not contravene the Contract or the Agreement. A requirement to switch on the Tough Pad to identify the work location is no different than putting on a uniform at home ready to start work at a specified shift start time at a factory or a shop or logging into a rostering app to check roster start times in a café or restaurant. It is reasonable in light of the provision of a home garaged work vehicle sparing employees the costs of fuel and wear and tear on their own vehicle travelling to and from their place of work. The direction does not require GDOs to do ‘work’ outside their ordinary hours of work it simply allows them to identify the location of where their ‘work’ is to be performed that day.

 

[144]  As the Full Bench noted in Australian Nursing and Midwifery Federation v Johnson Stenner Aged Care Pty Limited t/a New Auckland Place118:

 

“Not every incident of employment duty attracts an entitlement to payment…Employment will often involve minor and incidental duties being required to be performed outside of working hours without payment, such as making or answering occasional telephone calls about work attendance and rostering matters or dressing in uniforms …”.

 

[145]  Whether Mr Purser was entitled to be paid for duties performed prior to 7:45am is a different matter than whether the direction was of itself lawful.

 

[146]  ATCO applied the direction in a reasonable manner:

 

  1. If the first job was located further than the distance to the depot, it was acceptable for the employee to arrive at the first job later, given the additional travel time;
  2. If the employee was held up by traffic (through no fault of the employee’s own) being later than 7.45am was acceptable; and
  3. If an employee finished their job with not enough to undertake another job, the employee would still be paid until 4.10pm even though they finished early for the day.

 

[147]  The direction was repeatedly reinforced by ATCO in particular by Mr Short through:

 

 

 

  1. Team meetings119
  2. Email correspondence120
  3. Performance reviews121

 

[148]  Mr Purser’s representative sought to rely on the flexible and reasonable way in which ATCO applied the direction (to take into account traffic delays and distant worksites) to assert that the direction was insufficiently clear to be carried out. This is simply unsustainable. The GDOs are skilled tradesman and the direction is simply to understand.

 

[149]  It is clear from the evidence that Mr Purser was aware of the direction and that he consciously chose to ignore it. This is particularly evidenced from Mr Purser’s behaviour in so vigorously refusing to discuss his whereabouts on 3 August 2023 with Mr Short without his union representative present.

 

[150]  However, rather than overtly challenge the direction via the dispute resolution procedure or by attending the Depot at 7:45am as his submissions say he was contractually bound to do, he covertly disobeyed the direction by ‘hiding’ in a location unrelated to ATCO 10 km from the Depot where he was unlikely to be observed.

 

[151]  Mr Purser produced no evidence that anyone else adopted such a practice. In fact, his own witness’s evidence was that he left home to arrive at his first work location at 7:45am. The absence of evidence of other employees adopting Mr Purser’s practices is unsurprising given the irony of Mr Purser’s conduct. On multiple occasions Mr Purser drove all the way from his home to the Conlon Site then back to his first job (arriving later than 7.45am), when the journey direct from his house to the work site would have been a shorter and more efficient journey and which would have allowed him to leave home later.122

 

[152]  The consequence of Mr Pursers conduct was that over a three-month period on more than 30 occasions Mr Purser parked at a random unauthorised non-work location resulting in lost time, additional kilometres of travel and additional fuel use in the attending the first assigned job. On some dates Mr Purser added more than 40km to his journey. During the same period on in excess of 20 occasions he recorded a start time of 7:45am but the evidence suggests he did not starting work until after that time, that he was performing tasks which did not need to be performed at that time or that he was incorrectly recording the time for costing purposes.123 Misrepresentation of time sheets has been held to be valid reason for dismissal.124

 

[153]  Mr Purser has not established that he performed activities for which he was entitled to payment prior to 7:45am. Even if ultimately Mr Purser might be entitled to payment for any of the activities he said he performed before 7:45am his behaviour in ‘hiding’ at the Conlin Site in the face of clear written instructions to attend at his first work location at 7:45am is a fundamental breach of his obligations under the code of conduct to behave in manner which is honest, ethical or fair and of itself sufficient to form a valid reason for his dismissal.

 

[154]  Based on the evidence before me and the submissions of the parties for the reasons above, I find that valid reasons existed for Mr Purser’s dismissal relating to his conduct.

 

Was Mr Purser notified of the valid reason?

 

 

 

[155]  Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,125 and in explicit,126 plain and clear terms.127

 

[156]  The Allegations and detailed particulars were provided to Mr Purser in writing. Mr Purser was provided with access to the documents used to generate the Allegations and to each document he or his representative sought access to. It is clear from his responses at the Investigation Meeting and during the Show Cause process that he understood the Allegations he was required to respond to.

 

[157]  I am satisfied that Mr Purser was notified of the reasons for his dismissal before the decision was made to terminate his employment.”

Purser v ATCO Gas Australia Pty Ltd (2024) FWC 730 delivered 28 March 2024 per Binet DP