Olsen v New Competitive Drilling [2016] FWC 5015 (26 July 2016) [2016] FWC 5015 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Jeremy Olsen v New Competitive Drilling (U2016/4767) DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 JULY 2016 Application for relief from unfair dismissal. [1] Mr Jeremy Olsen was employed by New Competitive Drilling from 22 August 2014 until 31 January 2016. He alleges he was unfairly dismissed. [2] Mr William Brown, on behalf of New Competitive Drilling, gave uncontested evidence that at the time of Mr Olsen’s dismissal it was a small business as it had nine employees. [3] Mr Brown made the decision to dismiss Mr Olsen and he did so because he failed to follow company policy and advise his supervisor of his absence from work. He said Mr Olsen had been warned about not following the policy. [4] While there was some dispute between Mr Olsen and Mr Brown as to whether Mr Olsen was employed as a permanent or casual employee, I do not need to resolve this issue because it was not disputed that if Mr Olsen was employed on a casual basis he was employed on a regular and systematic basis and was therefore protected from unfair dismissal. [5] Mr Brown gave evidence that on 31 January 2016 Mr Olsen did not attend work as rostered and did not contact his supervisor prior to starting time that he would not be attending work. His supervisor rang him at 7.10am but he did not answer his phone. Mr Olsen rang him back and told his supervisor he had slept in. Mr Brown contacted Mr Olsen and Mr Olsen told him that he had slept in. Mr Brown told Mr Olsen that he had had repeated warnings about this and he would organise for him to get back home. [6] Mr Brown said that his supervisor reported to him that on 13 November 2015 he spoke to Mr Olsen about being late for work as he had slept in and had not arrived until 7.45am. [7] Mr Brown said that Mr Olsen had been spoken to about his punctuality on 7 January 2016. His supervisor had spoken to him at that time as two other employees had been dismissed for other reasons as well as punctuality. He was told that if he was going to be late he had to contact his supervisor and let him know. [8] Mr Brown said Mr Olsen was late for work on 16 January 2016 having notified his supervisor at 7.27am that he had slept in. Mr Olsen was due to commence work at 6am. [9] Mr Olsen was sent home ill on 28 January 2016 but attended work on 29 January 2016 without difficulty. On 30 January 2016, the supervisor reported to Mr Brown that Mr Olsen been asleep in the truck and he was concerned that Mr Olsen was unwell but Mr Olsen said he was OK. It was made clear to Mr Olsen that he was not required to work if he was unwell. [10] Mr Olsen accepted that he slept in on 31 January 2016 but said he was unwell. He said his work colleagues knew he was unwell. Mr Olsen accepted that he was spoken to about his punctuality on 13 November 2015. Further he accepted that he was spoken to about his punctuality on 7 January 2016. [11] Mr Olsen’s recollection about 16 January 2016 was unclear. He initially said he was not working that day 1 and subsequently accepted that he may have been at work. [12] Given Mr Olsen’s uncertainty and given that the relevant supervisor had not been available to give evidence I adjourned the matter to provide the parties with a further opportunity to bring evidence to support their respective positions. [13] A further hearing was held on 6 July 2016 but Mr Olsen did not attend. Mr Brown produced further evidence but he was not able to call Mr Michael McDonald to give evidence as he was not available. He did tender Mr McDonald’s records of his interactions with Mr Olsen. [14] Mr Brown produced records which supported his claim that Mr Olsen was at work on 16 January 2016. [15] As Mr Olsen did not attend the hearing, I provided him with a copy of the transcript and provided him with an opportunity to address the issues raised by Mr Brown. [16] Mr Olsen did not respond to that invitation. Small Business Fair Dismissal Code [17] It is not disputed that this is a small business and as such the Code applies. Mr Olsen was dismissed because of his failure to attend work on time. [18] The Code provides as follows: Summary dismissal It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report. Other dismissal In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations. Procedural matters In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements. [19] I am satisfied that being repeatedly late for work is a valid reason for the termination of an employee’s employment. I am satisfied that Mr Olsen was repeatedly late for work. I am satisfied that he was advised that he needed to be on time and if he could not attend he had to advise his supervisor in advance. Despite these warnings, Mr Olsen did not attend work on time on 31 January 2016 and failed to advise his supervisor. [20] In this matter Mr Olsen’s evidence was not convincing. He was provided with an opportunity to provide additional evidence and he did not do so. I can only assume that he had no further evidence to assist his case. Further Mr Olsen did not challenge Mr Brown’s submissions and evidence that he had been warned about being late. [21] Mr Olsen has made no submission that the Code was not complied with. Further he has made no submission as to why I should not find that his employer had a valid reason for his dismissal. In those circumstances I am satisfied that New Competitive Drilling complied with the Code and therefore I dismiss Mr Olsen’s application for an unfair dismissal remedy. DEPUTY PRESIDENT Appearances : J. Olsen on his own behalf. W. Brown for the Respondent. Hearing details: 2016. Melbourne and Sydney, by telephone link: 7 June. Appearances : No appearance by Applicant. W. Brown for the Respondent. Hearing details: 2016. Melbourne and Sydney, by telephone link: 6 July. 1 Transcript PN 103 Printed by authority of the Commonwealth Government Printer <Price code A, PR583297>