Anthony Ellem v Gladstone Area Water Board

[2016] FWC 1893

[2016] FWC 1893

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Ellem
v
Gladstone Area Water Board
(U2015/5314)

COMMISSIONER BOOTH BRISBANE, 31 MARCH 2016

Termination of employment - arbitration.

[1] Mr Anthony Ellem applied for unfair dismissal relief after he was dismissed from his role as Senior Land Officer at the Gladstone Area Water Board (GAWB). Mr Ellem commenced employment at GAWB in December 2013 and was dismissed on the basis of his conduct in April 2015. He seeks reinstatement and orders for lost pay under s.391 of the Fair Work Act 2009 (Act).

Background

[2] Mr Ellem was an unsuccessful applicant for a position as Capital Works Co-ordinator at GAWB. He was aggrieved at both the process used in the appointment and the successful applicant’s qualifications. He raised his concerns with his local member of parliament, a matter that Mr Ellem characterised as a public interest disclosure under the Public Interest Disclosure Act 2010 (Qld) (PID Act).

[3] The matter was referred to the Queensland Ombudsman and also the Queensland Crime and Corruption Commission (CCC) as suspected official misconduct. The CCC referred it back to GAWB for it to be investigated. GAWB concluded that it lacked the resources and capacity to conduct the investigation internally and engaged Clayton Utz Solicitors to undertake the investigation, which it commenced in November 2014.

[4] In October and November 2014, Mr Ellem also sought documents about the recruitment and selection process under the Right to Information Act 2009 (Qld) (RTIAct). He did so using a form available at the GAWB website, but he was told by Mr John Tumbers, Operations and Maintenance Manager, on 10 November 2014 that the form was incorrect. Applications under the RTI Act must be made on an approved form (s.24).

[5] Mr Ellem emailed Mr Tumbers with a copy to the general email (which was [email protected] ) the same day stating “I am very insulted with your bullying tactics accusing me of using the wrong form”. He demanded an apology and admission that “it is 100% GAWB’s fault” and that “in light of the [CCC] investigation … the GAWB Board should be made aware of this bully boy tactic from you.”

[6] Mr Cook, then Director on the Board, wrote to Mr Ellem by letter hand delivered to Mr Ellem at a meeting where Mr Tumbers was also present on 17 November 2014, noting that:

● Mr Ellem had made several allegations about the conduct of other GAWB employees, and that those allegations were being investigated as required by the CCC;
● Mr Ellem had communicated via the general email on 10 November and 12 November 2014 with copies to the chair of the Board;
● the general email was not confidential “as several GAWB staff have access to the emails that are sent to that address”;
● given the nature of the material and the need to ensure the integrity of the investigation process, strict confidentiality was required;
● communicating via the general email in light of the investigation was inappropriate and contrary to the code of conduct;
● the emails raised what Mr Cook called “reputational issues”, including the 10 November email which included allegations about Mr Tumbers.

[7] Mr Cook specifically directed Mr Ellem not to use the general email to communicate about these issues, but instead to raise matters directly with him in his capacity as Director or Mr Tumbers. He noted that failure to comply may result in disciplinary proceedings. Mr Ellem was offered the services of a confidential counsellor.

[8] Mr Ellem replied to Mr Cook (through Mr Tumbers) by email two days later stating that:

● he was unaware that the general email was not confidential;
● the email was accessed only by one or two employees;
● the email was not a public forum;
● he used the general email as he believed it was a way to ensure his communications would be recorded and that recording was important because of what he called a disconnect between general staff and senior staff.

[9] He asked if he was in fact facing disciplinary proceedings; whether the RTI application was being progressed; and whether he ought to use the general email for RTI purposes.

[10] Mr Tumbers followed up this email of 21 November confirming the need for “absolute confidentiality in respect to the investigation” and the direction not to use the general email for matters relating to the investigation and Mr Ellem’s allegations; and further directing him not to use the general email to make disparaging remarks about colleagues including Mr Tumbers. The possibility of disciplinary proceedings for failure to adhere to the directions was again noted. Mr Ellem was told: “please do not use [the general email] to correspond with GAWB about your current RTI applications”, but invited to communicate directly with Mr Tumbers instead.

[11] Over November and December 2014 Mr Ellem and Mr Tumbers continued to exchange emails about the RTI applications and employment conditions. During this time Mr Ellem was also congratulated on the anniversary of his appointment to GAWB.

[12] In the morning of 11 February 2015, Mr Ellem emailed Mr Paul Howlett, HR Manager, asking for details of the advertising for the Capital Works Manager position after Mr Grayson, the Chief Executive Officer, had emailed staff advising of changes on 29 January 2015. Mr Howlett responded with details about the process later that day.

Threats of legal proceedings

[13] On the evening of 11 February 2015 Mr Ellem sent three emails.

[14] The first was sent to Mr Cook (by this stage Chair of the Board) at a private email account at 6.31pm. Mr Ellem stated in the email he was “putting the water board on notice” of his intention to sue in the Supreme Court of Queensland in regard to “the way in which my application for the position of Capital Works Coordinator … was handled.” Mr Ellem then recited at some length his concerns and grievances, quoted Mr Howlett’s email of that morning and repeated the accusation that led to the CCC investigation.

[15] The second, sent at 6.56pm, was addressed to Mr Grayson and sent to both Mr Grayson’s GAWB email account and to the general email, advising him of his intent to take legal action against GAWB and the two named employees. Mr Ellem asserted that the appointee to the position was a friend of Mr Ward and that he would claim damages for the difference between his current remuneration and that he would have received had he been appointed to the manager position, some $17,000 annually, or approximately $500,000 over a twenty year tenure, including CPI adjustment. The email included material purporting to explain the basis of liability.

[16] The third was brief, and sent to Messrs Ward and Howlett, both managers at GAWB, at 7.07pm. It was headed:

“Legal action against GAWB, T Ward and P Howlett in regards to Tony Ellem’s application for capital workers coordinator role advertised about 1 April 2014 on Seek”.

[17] The email was said to be a courtesy correspondence advising the two recipients of Mr Ellem’s intention to take legal proceedings for damages and the intended amount and calculations.

[18] Mr Cook responded to the email sent to him and to Mr Grayson by letter dated 24 February 2015 advising that the Board had considered the material and delegated to Mr Tumbers the task of reviewing the matters, subject to his responsibilities responding to some natural disasters, and making a time for Mr Ellem and Mr Tumbers to meet. The letter reiterated Mr Cook’s earlier direction.

[19] In the meantime Mr Ellem continued to prosecute his grievances by email to Mr Howlett of 13 February complaining about recruitment and selection processes and stating that his PID would be escalated to the appropriate authorities.

Suspension and show cause

[20] Mr Ellem responded to Mr Cook’s letter of 24 February with an email the same day asking if at the proposed meeting with Mr Tumbers on 2 March 2015 his employment would be terminated. Mr Cook replied the next day by email stating that was not the case. However at the meeting Mr Ellem was suspended on full pay pending investigation of three allegations:

• Allegation 1: Mr Ellem “acted in direct violation of the direction on confidentiality provided in a letter dated 17 November 2014 and reconfirmed in email correspondence from John Tumbers dated 21 November 2014 which directed [him] not to communicate via the [general email] about any matters relevant to the pending investigation by the CCC”;



• Allegation 2: Mr Ellem had “acted in direct violation of a direction by the Chairman of GAWB dated 17 November 2014 not to make adverse comments in relation to [his] co-workers” via the general email;



• Allegation 3: Mr Ellem “sent correspondence that was or was intended to be intimidating, threatening or unacceptable behaviour in breach of the GAWB’s code of conduct.”

[21] The letter then set out certain expectations of Mr Ellem during the period of suspension, warned him of disciplinary proceeding should he not meet those expectations, and offered counselling.

[22] On 24 March Mr Ellem was called on, in writing, to show cause in regard to the three allegations, now particularised in detail, and given until 9am 14 April 20l5 to respond.

Further threats of legal action

[23] Mr Ellem by “letter of demand” in 6 pages dated 30 March 2015 and headed “without prejudice except as to costs” foreshadowing legal proceedings. It is titled:

“Torts of Conspiracy, Misfeasance in Public Office and Negligence as to Tony Ellem’s Employment Advancement at GAWB between March 2014 and April 2015”

[24] Mr Ellem raises new matters in that letter as well as reiterating his earlier grievances, and proposes settlement on terms including an apology and damages now totalling $700,000.

[25] The letter on its face states it was sent by post and email to Messrs Cook, Grayson, Ward and Howlett, although there is no indication which email addresses were used.

Further allegations and show cause arising from letter of 30 March 2015

[26] GAWB’s Corporate Counsel, Ms Burrows replied on 1 April 2015, setting out further matters that were, as a result of the letter dated 30 March, added to the show cause:

• Allegation 4: Continued breach of the confidentiality direction by sending the letter;



• Allegation 5: The sending of the letter to Messrs Ward and Howlett constituted a breach of the direction against inappropriate communication.

[27] He was given until 15 April 2015 to respond to the additional allegations.

Show cause, findings and termination

[28] He responded to all the allegations in writing on 14 April 2015. He asserts the conduct towards him was reprisal for his PID disclosures and refuting the particulars of the allegations.

[29] Mr Ellem’s employment was terminated at a meeting on 21 April 2015 with Mr Tumbers, a transcript of which was exhibited, as was the formal letter of termination given to Mr Ellem at the meeting.

[30] The letter outlined the findings of the investigation and show cause process as follows:

• Allegation 1 - The breach of the confidentiality direction: Mr Ellem was found to have breached this direction; its breach was repeated, wilful and flagrant and there was no adequate excuse;



• Allegation 2 - Adverse Comments about GAWB employees: Mr Ellem’s response that they were sent as a courtesy was not accepted by GAWB. It concluded that if in fact the email was sent as a courtesy there was no need to send it to the public email address;



• Allegation 3 - The email correspondence to GAWB employees was threatening or intimidatory: Mr Ellem’s response that the emails were to provide information by way of courtesy was not accepted;



• Allegation 4 - Continued breach of confidentiality direction: Mr Ellem’s response that he did not raise allegations about the CCC investigation misconstrued the nature of the directions, given the assertion is that by raising the same factual matters simply without reference to the CCC Mr Ellem breached the directions provided. The explanation was disingenuous;

● Allegation 5 – Further adverse communication to Mr Ward and Mr Howlett: Mr Ellem breached the direction which prohibited contact with employees. It had an adverse impact on employees and there was no reasonable explanation for this contact.

[31] The letter specifically dealt with the allegation that the show cause process amounted to reprisal action. The letter rejected that the process was related to the complaints made to the CCC. Rather, the process was focused on Mr Ellem’s conduct in relation to identified concerns with compliance with GAWB’s reasonable and lawful directions and its policies and procedures.

[32] The letter also clarified that the reason others were not being stood down was because neither the CCC nor GAWB considered it was necessary to do so.

[33] It appears common ground that Mr Ellem was summarily dismissed but he was provided with four weeks’ pay in lieu of notice.

CCC investigation outcome

[34] The CCC investigation was completed at a later date, and its outcome advised to Mr Ellem by letter of 15 May 2015 from Mr Cook advising that the investigator and the CCC concluded that none of Mr Ellem’s allegations were official misconduct.

Witness Evidence and Submissions

[35] At the hearing, Mr Ellem represented himself; Mr Wells of Ashurst represented GAWB.

[36] Mr Ellem’s written evidence was by way of submission and noted that he believed it was beyond reasonable doubt that Messrs Ward and Howlett conspired with Mr Noel Donkin to “maliciously lie” to him so Mr Ward could give the position of Capital Works Co-ordinator to a personal friend Jeff Bedsor.

[37] He alleged there were misleading emails about a restructure; that the show cause notice contained misleading statements; the disciplinary process maliciously targeted him; he was terminated because he took a stand in the best interest of GAWB; and trying to stop the wrongdoings of executive management.

[38] The submissions provided significant detail of what he asserted were breaches of various codes of conduct and legislative provisions.

[39] Under cross-examination he explained his use of the general email. He said that emails sent to that address are recorded in the system and the two employees with access then allocate the email to the relevant person or direct it to a named addressee if there is one. 1 Mr Ellem agreed in cross-examination that this was the reason he did not follow the direction not to send emails to that address.

[40] As to the difference between a prohibition on contact in relation to the CCC investigation and Mr Ellem’s emails about civil litigation, he considered the prohibition only applied to the CCC investigation. 2 However under cross-examination he considered in hindsight his letter of 30 March may have breached the direction.3

[41] However further in cross-examination Mr Ellem asserted while he may have breached the direction there were significant mitigating circumstances. 4

[42] Mr Grayson was cross-examined by Mr Ellem about the appointment to the Capital Works Co-ordinator and various other employees and that a particular approach in relation to a Mr Nichols suggesting that he transition out of GAWB was bullying.

[43] Mr Grayson indicated that he was not involved in all of the investigation and notwithstanding that GAWB had been requested to conduct the investigation by the CCC it did not believe it had the skills to conduct the investigation. Mr Grayson appointed the law firm Clayton Utz. He confirmed that their enquiries were not limited in any way. He indicated that the investigation cost hundreds of thousands of dollars and it seemed to him to be extremely thorough and detailed.

[44] Mr Tumbers and Mr Cook provided statements and were cross-examined.

[45] It was put to Mr Tumbers that he was not concerned about Mr Ellem’s health and well-being. He replied that he was concerned about confidentiality of the matter which would ensure the integrity of all those named that are involved. 5

[46] Further it was put to Mr Tumbers that while Mr Ellem was suspended his co-workers were not. It was Mr Tumbers’ evidence that the preliminary investigation was complete and thorough and he was guided by external advice. 6

[47] The cross-examination dealt significantly with the process around the advertisement of the Capital Works Co-ordinator’s position and interactions between the relevant employees since that time.

[48] Mr Tumbers answers to questions in relation to both these matters was that where an investigation was limited or not thorough it was, in his view, because it was not relevant or pertinent. 7

[49] Further, Mr Tumbers considered that CCC material was required to be kept confidential and that Mr Ellem tended to escalate through emailing other people on the GAWB public email address. 8

[50] It was put to Mr Tumbers that Mr Ellem did not receive procedural fairness. Mr Tumbers disagreed because the allegations were put to him and he had a chance to respond.

[51] He further stated that he always worked from a pre-prepared script, 9 and admitted that he did so in this case.

[52] Mr Cook was cross-examined about his understanding of the RTI Act and in particular the correct forms. He replied that there is a difference of opinion between Mr Tumbers and Mr Ellem. He further confirmed that he had obtained legal advice on the matter and that the form provided by Mr Ellem was not compliant. 10

[53] In submissions Mr Ellem said that his emails of the evening of 11 February, the basis of the alleged breach of the 17 November confidentiality requirement, was a matter of courtesy and common sense. He argued that it was not dissimilar to requesting a meeting without stating a reason or purpose for the meeting. He argued that a reasonable person would not send an email foreshadowing litigation without stating a reason.

[54] He confirmed his view that the general email was not a public email and its use was consistent with confidentiality being preserved.

[55] Further, he submitted that the letter of demand was not a threat but simply a way to try and get the issue resolved.

[56] He suggested he never had an issue with not getting the Capital Works Co-ordinator’s position himself but with the process used and the result that he asserted was not a proper outcome.

[57] There were, he argued, significant mitigating circumstances in that GAWB failed to provide him with procedural fairness, did not carry out a thorough and complete investigation, and that Mr Tumbers’ preliminary investigation was not thorough and complete. 11.

[58] Mr Ellem argued that where there are circumstances that an employee’s conduct does form a valid reason for the termination there would need to be consideration as to whether termination was harsh, unjust or unreasonable. He drew attention to Parmalat Food Products Pty Ltd v Wililo. 12Here, he said, there were significant mitigating circumstances and GAWB failed to afford procedural fairness because of Mr Tumbers not carrying out a thorough and complete investigation.

[59] Mr Wells submitted for GAWB that at no time did the Board assert that Mr Ellem could not make CCC complaints, that he may not commence litigation or he may not pursue whatever rights he had. The basis of the GAWB’s case is Mr Ellem’s conduct, and his failure to carry out directions given in November and then clarified was the basis of the termination. Further he said, whether the general email is accessed by just one person or many is not the point. The people who read the emails were not participants in the CCC process and therefore had no place being told about it.

[60] The correspondence of 11 February and 30 March, GAWB submitted, were not ‘courtesy’ but were his way of reacting to re-enlivening his frustration with the recruitment and selection processes of April 2014. 13

[61] GAWB submits on the question of the RTI form the evidence before the Fair Work Commission (the Commission) is that Mr Tumbers acted on legal advice and there is no basis to suggest he had conducted himself in a bullying or biased way.

[62] As to the validity of the reason for termination, Mr Wells considered the importance of a lawful and reasonable direction which has long been the hallmark of employment that an employee is subject to the control of the employer.

[63] As to the investigation, GAWB relied on the 11 February and 30 March emails showing that Mr Ellem had breached a clear direction. Any investigation by Mr Tumbers is neither here nor there as to whether those emails breached the direction.

[64] Mr Wells also submitted that whether the suspension was or was not appropriate is not relevant.

[65] Lastly, he submitted that the suggestion that the termination was payback for making the CCC complaint is inconsistent with the facts. Mr Ellem accepted that when he wrote the 11 February email he had not been subject to any discipline or adverse treatment. It was only after when Mr Ellem acted in breach of a direction that the reason for dismissal arose, and there are not countervailing factors suggesting the conduct was not serious misconduct.

The Act

[66] Section 387 of the Act directs attention to the criteria for considering whether a dismissal was harsh, unjust or unreasonable. It provides:

“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.”

Was there a valid reason for the dismissal?

[67] GAWB’s case is that the dismissal was based on the conduct that arose subsequent to the direction given in November 2014, and later restated, requiring absolute confidentiality in respect of the CCC investigation, not to communicate such matters (including RTI enquiries) via the general email, and not to disparage or make inappropriate comments about colleagues.

[68] Mr Ellem submits that the dismissal was for altogether different reasons, particularly reprisal for lodging his complaint that led to the CCC investigation. He submitted that a reprisal is in fact unlawful when it is the result of a complaint where a person has sought to seek redress under the PID Act. In support of his argument he noted that the show cause letter had mentioned the PID complaint at least five times.

[69] He further submitted that it was not inappropriate to begin legal action outside of the CCC investigation. On this particular point Mr Ellem and GAWB agree. However, GAWB submits that it was the manner in which this was done, not that it was done, that was a clear breach of the directions given to Mr Ellem.

[70] In GAWB’s submission, Mr Ellem was choosing to re-litigate and air his frustration with the process in terms of the appointment of the Capital Works Co-ordinator’s position.

[71] Therefore before deciding whether there has been a proper direction given to Mr Ellem in relation to his conduct, it is necessary to consider Mr Ellem’s argument that this matter was, as he describes it, “extra-ordinary lengths that the management of GAWB will extend to terminate a person who is not in the so-called inner circle.”

[72] There is no doubt that Mr Ellem had a grievance about the appointment of the Capital Works Co-ordinator. One of the options which was available to Mr Ellem was to make a complaint. He did so, with both the Ombudsman and a member of parliament, and ultimately his complaint was referred to the CCC.

[73] It is agreed that no action was taken against Mr Ellem until after he breached the direction. He asserts nevertheless his termination was not because of his conduct in breach of the directions given to him but because of the original complaint to the CCC.

[74] He points to his feeling humiliated, bullied and victimised since raising the complaint, including his treatment following his RTI application. On this matter, his view that the correct form was submitted was directly disputed by Mr Grayson, in particular that the advice of GAWB was that his form was non-compliant. Further, despite the curtness of the communication from Mr Tumbers, Mr Ellem was given assistance to make his application in the correct form.

[75] It is certainly the case that Mr Ellem and GAWB continue to have different views about the forms.

[76] However, this is not the issue, but whether GAWB’s response and the ultimate termination was part of the reprisal for lodging the complaints. In my view, GAWB’s response was an appropriate one on the part of an employer, requiring an employee to ensure compliance with the code of conduct and ensuring confidentiality.

[77] Mr Ellem provided no evidence that the basis of the termination was his initial complaint. The evidence is in fact to the contrary in that:

• Mr Ellem continued in his position until suspended after his 30 March correspondence;



• the only evidence as to the reason for the suspension is that it was Mr Ellem’s conduct that was allegedly inconsistent with the directions given to him.

[78] On the material before me there is no basis on which I can conclude that the suspension and ultimate termination was the result of the Mr Ellem’s complaint that was ultimately referred to the CCC.

[79] But this finding is not (of itself) sufficient. It is still for GAWB to show that it had a valid reason to terminate Mr Ellem.

[80] GAWB submits that an employer can direct an employee within the boundaries of reasonableness and lawfulness. 14 That proposition is clearly correct.15

[81] A direction to an employee that is unreasonable will not provide a valid reason for termination. In Austal Ships case a Full Bench of the Australian Industrial Relations Commission stated as follows:

Of all particular relevance to this case is the proposition that the failure to comply with an unreasonable direction does not provide a valid reason for the termination of a person’s employment. This proposition also accords with authorities dealing with the extent of an employee’s obligation to obey lawful orders. The general consensus now is that an employee is only obliged to obey orders which are both lawful and reasonable: 16 (citations omitted)

[82] That is, were the directions reasonable and did Mr Ellem breach them?

Reasonable directions?

[83] The first direction was contained in the letter dated 17 November 2014. It dealt with confidentiality and prohibited Mr Ellem from discussing the matter with anyone within GAWB except Mr Tumbers and Mr Cook and others necessary for the investigation to progress. This direction also prohibited Mr Ellem from using the general email to communicate in these contentious matters, and raised the “Reputational Issues”, inappropriate statements contrary to the code of conduct.

[84] The potential for disciplinary action, but that this was not itself disciplinary action, was made clear to Mr Ellem in the letter and later emails.

[85] Mr Ellem consistently referred to his complaints as protected under the PID Act, a further serious matter. In passing I note that this Commission has no jurisdiction to conclude if the disclosures were PIDs. That is a matter for the relevant court under that Act.

[86] His original complaints were serious, and were the subject of serious investigation under the CCC’s jurisdiction. A CCC investigation is a serious matter. The organisation has grave responsibilities under the law to ensure any investigation can be conducted fairly to all involved. In this case allegations of corruption around appointments had been made. This direction by GAWB did no more than allow the matter to proceed without further discussion by employees.

[87] As to the general email Mr Ellem’s consistent submission was that this email address was not in fact “public” but restricted and (in his view) better because of recording practices.

[88] On the evidence, the preferable view is that the email address was accessible to individuals who were not involved in Mr Ellem’s complaints, and that material sent to that address would inevitably be read by those individuals as part of their responsibilities. I am satisfied that using that email address had the potential to put otherwise confidential information into the hands of individuals who had neither need nor reason to know of it. Mr Ellem’s own evidence was that two staff accessed the email and determined the disposition of materials sent to that address.

[89] Regardless of the character of the email address, GAWB directed Mr Ellem not to send material to it but instead to responsible and senior officials who were relevant to the investigation. I am satisfied that this direction was reasonable in the context of a confidential and contentious complaint and investigation. Requiring Mr Ellem to only email directly the senior people in the organisation was not only reasonable but prudent in the circumstances.

[90] I am satisfied that the directions given to Mr Ellem not to communicate except to named persons and not to use the general email for contentious communication were reasonable.

[91] I similarly have concluded that the reputational direction was reasonable. Mr Ellem clearly disagreed with GAWB’s response to his first RTI application. He had rights to complain and seek rectification. But there is no entitlement to respond with disproportionate and inflammatory emails. It is unsurprising that GAWB took steps to reduce or eliminate inappropriate workplace conduct by giving the code of conduct directions.

[92] As noted earlier, GAWB reiterated and clarified the directions to Mr Ellem.

[93] I am satisfied that the directions were lawful and reasonable, and clearly communicated to Mr Ellem and he either actually knew and understood them, or ought to have, and the consequences of breach.

Did Mr Ellem breach the directions?

[94] GAWB submits that 11 February 2015 emails from Mr Ellem breached these directions. The emails clearly were directed at the contentious matters the directions were concerned about. They explicitly canvas the complained-of conduct. At least one email was sent to the general email.

[95] I do not accept Mr Ellem’s submission that these emails are not prohibited, but a courtesy, advice of his intention.

[96] That Mr Ellem had a complaint about the appointment of the Capital Works Co-ordinator was plain. He complained, and exercised his rights to escalate his complaint. The matter was given attention and investigated under the CCC.

[97] I am satisfied that GAWB was keen to maintain confidentiality while the investigation process occurred, not least to ensure the integrity of the process.

[98] In my view the emails of 11 February constitute a serious breach of the directions given to Mr Ellem, and constituted a breach of the code of conduct as to the standard of behaviour required of Mr Ellem in his communication with other employees. Further, the letter of demand dated 30 March is also a breach of the directions which reasonably prohibited contact with certain employees.

[99] Mr Ellem’s explanation as to why the 11 February emails were sent to the general email demonstrates that he was not prepared to accept a reasonable direction from his employer.

[100] Whether the purported intent of the email (courtesy advice of threatened litigation) was acceptable is a different question from whether Mr Ellem disobeyed a lawful direction about the means of communication.

[101] Mr Ellem, to some degree accepted, at least in hindsight under cross-examination, that his actions might have constituted breach of the directions. However he says there were mitigating factors.

[102] Mr Ellem considers the investigation by Mr Tumbers was inadequate. He submitted:

In this case there are significant mitigating circumstances and the respondent failed to provide me with procedural fairness in the dismissal process by not carrying out a thorough and complete investigation in that Mr Tumbers, when carrying out the preliminary investigation, he failed to carry out a detailed thorough and complete investigation by (1) Terry Ward has failed to be truthful in Mr Tumbers’ submission JT10, page 2 paragraph 4 regarding Mr Ward not knowing why Noel Donkin was named in the February 11 email.

This is in direct conflict with the email footnote 2 of Mr Ellem’s evidence on page 5; the email from Noel Donkin and Mr Ellem on 1 April 2015 in which Mr Ward and Mr Howlett are cc’d in. They are very aware why Noel Donkin was named in the email. The second point: that procedural fairness was not given is the fact that Paul Howlett has failed to tell the truth in regards to having interactions with Mr Ellem on a daily basis from 12 February to 2 March 2015 and the reference to that is JT10 paragraph 6.

[103] I consider the investigation to be of marginal relevance to the question of whether there was a valid reason to terminate Mr Ellem’s employment for the conduct in the 11 February and 30 March communications. Additionally I accept Mr Tumbers’ explanation that he considered where investigations were limited it was because they were not relevant or pertinent.

[104] Mr Ellem’s behaviour was, despite the clear directions, conduct that was deliberate, It also breached the code of conduct. There was therefore a valid reason for Mr Ellem’s dismissal. 17

Notification of the Reason and Opportunity to Respond

[105] Mr Ellem was advised of the reason for his dismissal before the decision was made to terminate him. The letter dated 24 March was in explicit terms. Following the further correspondence of 31 March 2015, the additional allegations were put to Mr Ellem in clear and unambiguous terms.

[106] The time afforded him to respond was reasonable in the circumstances.

Unreasonable refusal of a support person

[107] There is no evidence that Mr Ellem sought a support person. This factor is neutral.

Performance issues

[108] This matter does not involve issues of performance but conduct.

Size of employer’s enterprise / dedicated human resource management specialists

[109] It is noted that GAWB was able to obtain legal advice and relied on advice throughout the process.

Any other matters the Commission considered relevant

[110] Mr Ellem has indicated that the impact of his dismissal has been significant. There is no doubt that termination of employment does severely impact on employees particularly older employees. However I balance this against Mr Ellem’s conduct. As this is a summary dismissal consideration should also be given to the proportionality of the dismissal. The conduct complained of in this matter was a valid reason for dismissal. It was deliberate, unacceptable and had the potential to cause considerable disruption in the workplace. In these circumstances summary dismissal was proportionate to the conduct complained of.

[111] Mr Ellem submitted that Mr Tumbers’ use of a pre-prepared script demonstrated bias or a pre-conceived conclusion. This is not a case where the issues were in dispute. Mr Ellem was terminated for his emails sent in breach of earlier directions from his employer. Mr Ellem had made contentious and inflammatory accusations against Mr Tumbers. I have no doubt that Mr Tumbers also found the process stressful and as he submitted he worked from a pre-prepared script in order to ensure the termination meeting was conducted properly. Further, this is not a case where the employee was dismissed on the basis of allegations put to him in the termination meeting. There was a detailed notice to show cause and a supplementary notice. Adequate time was given for Mr Ellem to respond and his response was apparently considered well before the meeting. The meeting was not itself part of the show cause but a face-to-face communication of the outcome of a deliberative process.

Conclusion and order

[112] Having found there was a valid reason to dismiss, that the dismissal was proportionate, and having considered the relevant statutory factors, it follows that the dismissal was not unfair. An Order will issue dismissing the application.

COMMISSIONER

Appearances:

Mr T Ellem appeared on his own behalf.

Mr J Wells on behalf of Gladstone Area Water Board.

Hearing details:

2016.

Brisbane:

February 9 and 10.

 1   Transcript dated 9 February 2016 at PN409

 2   Transcript dated 9 February 2016 at PN529

 3   Transcript dated 9 February 2016 at PN 535

 4   Transcript dated 9 February 2016 at PN 675

 5   Transcript dated 10 February 2016 at PN 1401

 6   Transcript dated 10 February 2016 at PN 1534

 7   Transcript dated 10 February 2016 at PN 1564

 8   Transcript dated 10 February 2016 at PN 1416

 9   Transcript dated 10 February 2016 at PN 1574 and PN1601

 10   Transcript dated 10 February 2016 at PN 1748

 11   Transcript dated 10 February 2016 at PN 1825- 1833

 12   [2011] FWAFB 1166

 13   Transcript dated 10 February 2016 at PN 1892

 14   Transcript dated 10 February 2016 at PN 1908

 15   eg Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374

 16   Austal Ships Pty Ltd (unreported, AIRCFB, Ross VP, Drake DP, Dight C, 13 August 1997) Print P3975

 17   O’Connell v Wesfarmers Kleenheat Gas Pty Ltd t/a Kleenheat Gas [2015] FWCFB 8205 at [23]

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