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Toyota to compensate unfairly dismissed foreperson

135UnfairDismissalCompensationThe Fair Work Commission (FWC) has ordered Toyota Motor Corporation Australia (TMCA) to pay a foreperson with overarching supervisory responsibility for some 69 team members the maximum compensation under the Fair Work Act’s unfair dismissal provisions after it failed to prove allegations of inappropriate behavior.

In what was the second case alleging inappropriate behaviour between supervisors and female workers in the auto giant’s paint store, the FWC this time found TMCA had failed to prove its claims against paint store general foreperson Adrian Tainsh.

In the first case, one of Tainsh’s direct reports, Homer Abarra, was found to have been lawfully sacked for serious misconduct regarding inappropriate behaviour of a sexual nature in the workplace.

The matter involving Tainsh began in December 2015, when TMCA received an anonymous complaint that he regularly drank at a pub with a select group of young female temporary fixed term workers (TFTs). It claimed he engaged in a relationship of a sexual nature with one them, April de Leon.

Investigation supported claims against supervisor

In January 2016, a TMCA manager interviewed several paint store employees including de Leon, who then resigned. It suspended Tainsh and initiated an external investigation into the claims.

TMCA said it had found Tainsh had authorised leave for de Leon and another woman, Chantelle Ngo, that they were not entitled to, and that at the time he had allegedly been in personal relationships with them both. TMCA claimed Tainsh had renewed de Leon’s TFT contract when he should not have. It alleged he was often alone in the lunch room with Ngo with the lights out. In the dismissal letter TMCA also accused Tainsh of failing to effectively supervise Abarra, who had reported directly to him.

However, Commissioner Katrina Harper-Greenwell found many faults with TMCA’s allegations.

The Commissioner heard Tainsh and de Leon had started a relationship in August 2014 after she had split from her husband, some months after he had granted her the leave.

Noncompliance with policy was common at TMCA

The Commission found Tainsh had spent time alone with Ngo with the lights off, but heard evidence there was sufficient natural light in the room and there was no evidence they had been in a personal relationship. Ms Harper-Greenwell noted Tainsh said a supervisor had asked him for help with Ngo, who was having pregnancy-related health problems. TMCA’s HR had documents about Ngo having pregnancy-related health issues and that it granted her leave as a hardship matter.

The Commissioner heard Tainsh had approved de Leon’s contract extension based on her supervisor’s recommendation.

While de Leon had taken excessive leave, “she had always complied with the notification requirements as set out in the Workplace Agreement”. The Commissioner found Tainsh had breached TMCA’s leave without pay (LWOP) policy by granting leave to de Leon in 2013 and early 2014, and to Ngo in 2015.

However, it was “common practice” among production group leaders to use their discretion and go outside TMCA’s LWOP policies. Ms Harper-Greenwell found “noncompliance was not limited to Mr Tainsh or the leave requests of Ms de Leon and Ms Ngo, it is a general issue within the production area of the plant. TMCA have provided no evidence that they had attempted to manage or address such noncompliance with the leave policy prior to Mr Tainsh being stood down”.

Further, “even if Mr Tainsh had been in a relationship with Ms de Leon at the time the leave was granted, Ms de Leon provided sufficient evidence in support of her requests for leave and the granting of that leave was not plainly unreasonable”. The evidence included her having to look after her children.

The charge that Tainsh failed to properly manage Abarra was never put to him, but in any event the Commissioner was not satisfied it amounted to a valid reason for his dismissal. She found his dismissal was unjust and unreasonable, there was no valid reason and it “was particularly harsh” given his length of service and seniority of role. She noted it meant he had no entitlement to a redundancy package and other assistance that was available because of the changes impacting the automotive industry.

She ordered Toyota to pay Tainsh $68,350 plus applicable superannuation, less appropriate taxation as required by law.

(Tainsh v Toyota Motor Corporation Australia Ltd [2018], FWC 4192, 16/07/2018)