Alan Baker v G4S Custodial Services Pty Ltd

[2014] FWC 3087

[2014] FWC 3087

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alan Baker
v
G4S Custodial Services Pty Ltd
(U2013/17755)

COMMISSIONER RYAN MELBOURNE, 12 MAY 2014

Application for relief from unfair dismissal.

[1] At the conclusion of the hearing of this matter on 6 May 2014 I issued a decision in which I found that the dismissal was harsh, unjust or unreasonable and that it was appropriate that a remedy be granted to the Applicant and the appropriate remedy was reinstatement. I also decided that it was appropriate to grant the Applicant an order for lost remuneration. I advised the parties that the orders would be issued with the reasons for decision and that the effective date of the orders would be 22 days after the day on which the reasons for decision were issued.

Reasons for Decision that the Dismissal was Harsh, Unjust or Unreasonable

[2] Evidence in this matter was given by the Applicant on his own behalf and by Mr Spadano, General Manager of Custody Centres and Mr Thomas, General Manager of Port Phillip Prison for the Respondent.

[3] The Respondent also filed witness statements of Ms S and Ms C1, both being prison officers, but neither of these two persons wanted to give evidence at the hearing and the Respondent did not seek to require their attendance at the hearing.

Background

[4] The Applicant and Ms S were both employed by the Respondent as prison officers at the Port Phillip Prison. The Applicant and Ms S had a consensual sexual relationship outside of work. The Applicant ended the relationship on 26 October 2013 through a text message conversation with Ms S who did not want to end the relationship.

[5] On 2 November 2013 and 3rd November 2013 a number of interactions occurred between the Applicant and Ms S at work, four of which were initiated by Ms S with the apparent aim of keeping the relationship going. The Applicant’s continued insistence that the relationship had ended led both the Applicant and Ms S to use offensive and abusive language towards each other. The Applicant also made it clear to Ms S that he the Applicant would contact Ms S’ husband to tell him about the affair.

[6] On 3 November 2013 Ms S made a formal complaint to the Respondent about threatening and abusive language used by the Applicant towards her. Ms S’ complaint was supported by a formal complaint lodged by Ms C2, another prison officer.

[7] Mr Thomas spoke to Ms S on 3 November 2013. Mr Thomas advised the Applicant that an allegation had been made that he had used threatening and abusive language towards a colleague and that he was stood down on full pay. The details of the “abusive and threatening language” were not put to the Applicant.

[8] On 6 November 2013 Ms S made an application for an intervention order against the Application. In her application for an intervention order Ms S made the following statement:

“I have known the respondent for around 2 years. We had a short affair recently for about 2 weeks and the respondent ended it around 2 weeks ago. We are also work colleagues. On 3/11/2013 I returned to work after having a mastectomy. Both the respondent and I were at work when the respondent looked in my direction shouting ‘There she is the one with the big mouth’. I replied ‘yes’ and kept walking. The resp then shouted ‘you’re nothing but a fucking mole’. There were other prison officers present at the time. I returned a few minutes later asking the respondent not to say such things in front of other officers. He responded with ‘you are in big trouble. I’m gonna find out where you live and come around and get you’. Followed by ‘You are nothing but a tunnel mole. You have slept with most of the officers and lots of criminals. I’ll make sue you lose your job’. At the time there was a counter between us. The respondent leant over close enough so that his moustache was touching my face and said I told you that I’ve got a dark side you had better be careful’. The respondent then screamed at me ‘fuck off’.

I had left work early to avoid further confrontation. I received a call on the house line from the respondent who asked to speak to my husband. The respondent said ‘I can do anything I like, I have got connections. I told you I had a dark side’. I received another call an hour later that my husband answered where the respondent said ‘Your wife is a fucking slut’.

I’m scared of the respondent and as to how he got my phone number as it is an unlisted number. I am also aware that this behaviour has happened to another co worker and I am scared of what he may do next.’

[9] A copy of the application for an intervention order and the interim order was given to Mr Thomas.

[10] On 11 November 2013 Mr Thomas asked Mr Spadano who was another senior employee of the Respondent to conduct an investigation into the allegation made by Ms S. Mr Thomas supplied Mr Spadano with brief terms of reference for the investigation together with the statements from Ms S and Ms C2 and the intervention order application.

[11] Mr Spadano conducted an investigation and spoke to each of Ms S and the Applicant and also spoke to and sought statements from three other employees.

[12] Mr Spadano reported back to Mr Thomas on 14 November 2013 and recommended that disciplinary proceedings be commenced against the Applicant.

[13] Mr Thomas wrote to the Applicant on 18 November 2013 in the following terms:

“I am now in receipt of the above investigation report and now wish to meet with you formally to discuss the following allegations:

• On 3 November 2013 you shouted at [Ms S] saying “There she is with the big mouth. You’re nothing but a fucking mole”.

• On 3 November 2013 in Admissions you put your face very close to [Ms S’s] and stated “You’re a tunnel mole. You’ve slept with most of the officers and the criminals. I will make sure you lose your job”. And “I have a dark side. You need to be careful. I know where you live and I will come to your house”.

• On 3 November 2013 in Admissions you shouted at [Ms S] to “fuck off out of Admissions”.

You are to attend my office at 1.30pm on Friday 22nd November 2013 when these matters will be formally considered.

You are reminded of your right to bring a representative with you.”

[14] Mr Thomas met with the Applicant on 22 November and repeated the allegations made and recapped the evidence in relation to the allegation.

[15] On 22 November 2013 the Applicant lodged a formal complaint with the Respondent alleging sexual harassment by Ms S on 2 November 2013. Mr Thomas referred this complaint to Mr Spadano for investigation.

[16] Mr Thomas met Ms S on 26 November 2013. Mr Thomas again met with the Applicant on 28 November 2013.

[17] Mr Spadano issued an amended report to Mr Thomas on 3 December 2013. In this amended report Mr Spadona also dealt with the alleged sexual harassment by Ms S.

[18] Between the 3 December and 10 December 2013 Mr Thomas concluded that the allegation against the Applicant had been proven and that the allegation against Ms S had not been proven.

[19] On 10 December 2013 Mr Thomas met with the Applicant and advised him that he was dismissed.

Consideration

[20] The matters required to be determined under s.396 were dealt with in transcript.

[21] Consideration of whether the dismissal is fair or unfair is dealt with in s.387 of the Act as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

[22] The Commission must take into account each of the criteria in s.387 which is relevant.

387(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

[23] In a matter such as the present where the Applicant denies the conduct alleged by the Respondent to have justified the dismissal then the “Commission’s obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place”. 1

[24] The evidence in this proceeding consists of (1) the Applicant’s sworn testimony and on which he was cross examined, (2) the unsworn and untested witness statements of Ms S and Ms C1, (3) the sworn testimony of Mr Spadano on which he was cross examined and (4) the sworn testimony of Mr Thomas on which he was cross examined.

[25] Whilst Mr Spadano investigated the allegations against the Applicant and reported to Mr Thomas and whilst Mr Thomas was the decision maker neither witnessed the alleged misconduct of the Applicant.

[26] Ms S made the allegations against the Applicant and Ms C1 and Ms C2 were employees of the Respondent who had provided statements to the Respondent supporting Ms S allegations.

[27] However none of these three persons attended the hearing to give evidence in this matter.

[28] The Applicant conceded that on 2 and 3 November 2013 he used abusive language against Ms S in that he said “Why the big mouth? You are nothing but a moll.” and “tunnel mole and “Fuck off out of admissions” but he denied using the other words attributed to him including making any threatening statements to Ms S. Ms S admitted that as part of the exchanges with the Applicant on 3 November that she said “You are nothing but a fucking cunt and I hate you!”.

[29] Mr Thomas in his witness statement, Exhibit R2, described the reasons for not taking any action against Ms S for using abusive language towards the Applicant:

“My decision not to take disciplinary action against Ms S

32. The investigation clearly evidences that Ms S, as well as the Applicant, engaged in using coarse language.

33. I did not take any disciplinary action in relation to Ms S following the investigation in to her and the Applicant’s complaints.

34. I made this decision for two reasons:

a. coarse language is used within the Prison. Prisoners within the Prison will use coarse and abusive language; this will be challenged appropriately by staff.

However, it must be acknowledged in this environment such language will occur.

I considered that it would be inappropriate to discipline Ms S for using coarse or even abusive language as it would be unfair as other employees have not been disciplined for the same actions.

b. Ms S was going through a very difficult time in terms of facing difficulties in her marriage and fighting cancer. I felt that to take disciplinary action in relation to Ms S in her current situation would be unfair and unsafe.”

[30] During the investigation conducted by Mr Spadano the Applicant made a written statement about the events on 2 and 3 November 2013 2 and the Applicant admitted that as part of the interaction between himself and Ms S on the 3 November 2013 that he “said to Ms S that I would come around to her place after work and speak to her husband. Ms S replied he already knows.”3 On the evening of 3 November 2013 the Applicant telephoned Ms S home in order to tell her husband about the affair he had had with Ms S. Ms S in her unsworn witness statement confirms that this telephone call was made by the Applicant.

[31] The first and third allegations and the first words of the second allegation are allegations of the use of abusive language by the Applicant to Ms S.

[32] The remaining words of the 2nd allegation are allegations of threatening language by the Applicant to Ms S.

[33] I prefer the tested evidence of the Applicant over the untested statement of Ms S.

[34] It is clear from the admissions made by the Applicant that he used abusive language towards Ms S. However this of itself does not necessarily provide a valid reason for dismissal.

[35] A valid reason is one which is “sound, defensible or well founded” and one which is not “capricious, fanciful, spiteful or prejudiced”. 4

[36] In all of the circumstances of this matter it is neither sound nor defensible for the Respondent to rely upon the use of abusive language by the Applicant towards Ms S as a reason for dismissal when the Respondent has conceded that it would not discipline Ms S for using abusive language towards the Applicant because “it would be unfair as other employees have not been disciplined for the same actions.”

[37] The allegation of threatening language being used by the Applicant towards Ms S is not made out on the evidence in this matter. There was no threat against Ms S. The “threat” by the Applicant to go to Ms S’ house was not for the purpose of having any contact with Ms S but rather was made for the purpose of having the Applicant speak to Ms S’ husband. As it happened on the same day that the “threat” to visit was made the Applicant resolved the issue of telling Ms S’ husband of the affair by telephoning Ms S’ husband.

[38] As is very clear from the evidence in this matter, including from Ms S unsworn statement, the Applicant did not want to have any continuing relationship with Ms S outside of work and the conduct of the Applicant was specifically aimed at ensuring that Ms S understood that the affair had ended and would not be resumed.

[39] There was no valid reason for the dismissal of the Applicant.

387(b) whether the person was notified of that reason

[40] The Applicant was notified of the reason for the dismissal when the allegations were put to him on 18 November 2013 and again on 10 December 2013 when he was dismissed on the basis that the allegations had been held to have been proven.

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

[41] The Applicant was given an opportunity to respond to the allegations made against him.

387(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

[42] There was no unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.

387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[43] This criterion is not relevant in the present matter.

387(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

[44] The Respondent is a large employer with well established procedures for dealing with disciplinary issues involving employees including disciplinary action up to and including dismissal. This criterion is neutral in this matter.

387(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

[45] This criterion is not relevant in the present matter given that the Respondent has dedicated human resource management specialists or expertise in the enterprise.

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

[46] In the present matter it is clear that what was a consensual sexual relationship outside of the workplace became a workplace issue when Ms S would not accept that the Applicant wanted the relationship to end and took action outside of work to end the relationship.

[47] It is clear from the evidence of the Applicant and from the unsworn statement of Ms S that on 3 occasions on 2 and 3 November 2013 Ms S sought out the Applicant at work and that Ms S went from her designated work place to the Applicants designated workplace to speak to the Applicant.

[48] The conduct of Ms S makes it clear that she did not want to accept that the relationship with the Applicant had ended and that she was prepared during work time to approach the Applicant with a view to re-establishing the relationship.

[49] The complaint made by Ms S against the Applicant appears to be a case of Ms S putting the well known quote by playwright Sir William Congreve into practice:

“Heaven has no rage like love to hatred turned, nor hell a fury like a woman scorned” 5.

Conclusion

[50] I am satisfied, having taken into account each of the relevant criteria of s.387, that the dismissal of the Applicant was harsh and unjust and unreasonable.

Remedy

[51] The provisions of Division 4 of Part 3-2 of the Act deal with remedies for unfair dismissal.

[52] Section 390 provides as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[53] The Commission is satisfied that the Applicant was protected from unfair dismissal and that the Applicant has been unfairly dismissed (s.3901).

[54] The Applicant seeks the remedy of reinstatement. The Respondent opposes reinstatement. The Respondent in its written submissions contended as follows:

“40. ....the Respondent says an order for reinstatement would be inappropriate in all circumstances and “impracticable due to loss of trust and confidence”^3. The Respondent has lost trust and confidence in the Applicant to properly conduct himself in the workplace.

3 Perkins v Grace Worldwide (Aust) Pty Ltd, (1997) IRCA 15 para 31”

[55] Apart from this brief submission no other material was put to the Commission to support the Respondent’s contention that it had lost trust and confidence in the Applicant.

[56] Mr Thomas the General Manager of Port Phillip Prison gave no evidence to support the contention of the Respondent.

[57] There is nothing before the Commission which would permit the Commission to conclude that reinstatement was impractical.

[58] I am satisfied that reinstatement is an appropriate remedy in this matter.

[59] Section 391 provides as follows:

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[60] The generic nature of the Applicant’s position as a prison officer at Port Phillip Prison and the large number of staff employed at Port Phillip Prison mean that there appear to be no reason why the Commission should not make an order under s.390(1)(a) to reappoint the Applicant to the position in which the Applicant was employed immediately before the dismissal. An order to this effect will be issued.

[61] The Applicant has also sought an order under s.390(3) for lost pay. Having considered all of the circumstances of this case I am satisfied that it is appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost because of the dismissal. An order to this effect will be issued.

[62] I am satisfied that an order to maintain the Applicant’s continuous service pursuant to s.391(2) should be made.

[63] The orders for reinstatement, lost remuneration and continuous service will be issued with these reasons and these orders will have an operative date 22 days after the date of these reasons.

COMMISSIONER

Appearances:

R. Millar of counsel for the Applicant.

L. Gheller for the Respondent.

Hearing details:

2014.

Melbourne:

May 6.

 1   King v Freshmore (Vic) P/L, Print S4213.

 2   Attachment AB-13 to Exhibit A1.

 3   Attachment AB-13 to Exhibit A1.

 4   Selvachandran v Peteron Plastics P/L, (1995) 62 IR 371 at 373.

 5   The Mourning Bride, 1697, spoken by Zara in Act III Scene VIII.

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<Price code C, PR550455>