Applicant v Respondent

[2010] FWA 5357

[2010] FWA 5357

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Respondent
(U2010/7153)

COMMISSIONER DEEGAN CANBERRA, 20 JULY 2010

Termination of employment.

[1] This matter arises from an application for an unfair dismissal remedy lodged on 22 March 2010 by Mr K (the applicant) in respect of the termination of his employment by TCL (the respondent). A conciliation conference conducted on 13 April 2010 was unsuccessful and the matter was listed for arbitration on 29 June 2010.

[2] At the arbitration of the matter the applicant was represented by an officer of his union and the respondent was represented by in-house solicitors.

[3] The parties have agreed that the arbitration of this matter should be private and that the decision should not reveal the names of the parties or other material that would identify the parties.

Background

[4] The facts concerning the incident which resulted in the termination of the applicant’s employment are generally not in dispute. There is some disagreement between the parties concerning peripheral matters but, essentially, the applicant does not deny the conduct which brought about his termination but asserts that the termination was a disproportionate response to that conduct given all the circumstances.

[5] The applicant was employed by the respondent from 27 March 1995 and his employment was terminated on 9 March 2010.

[6] For some years the applicant was situated for work purposes at the offices of a client of the respondent, a government Department.

[7] On or about 11 February 2010 the applicant, upon completion of his work at the Department, with assistance from another of the respondent’s employees working at the same site, removed from the location a couch. According to the applicant, he and his work colleague (at the applicant’s request) removed the couch from a corridor and placed it in his work vehicle. The applicant drove away from the Department with the couch but about 10 minutes later decided to return it. He managed without help to return the couch to its original position.

[8] About two weeks later the respondent was informed by the Department of the applicant’s actions. An investigation was conducted and the respondent terminated the applicant’s employment.

The applicant’s evidence

[9] The applicant filed a statement of evidence 1 and was cross-examined on the contents of his statement.

[10] It was the applicant’s case that his dismissal was unfair as it was rendered harsh, unjust and unreasonable in that it was not proportionate to his conduct, particularly given his length of service and the existence of mitigating circumstances.

[11] The evidence of the applicant was that he had taken the couch “in a moment of madness” and having quickly come to his senses returned it less than 10 minutes later.

[12] According to the applicant, the couch was removed during a period when the Department at which he was situated was shifting offices and much of the furniture was being disposed of because new furniture had been purchased for the new building. It was also his evidence that at the time he took the couch he was going through a very traumatic divorce, and was suffering a depressive illness.

[13] The applicant stated that he had admitted his conduct immediately upon being confronted by representatives of the respondent about two weeks after the incident. It was also his evidence that, on the first three occasions he was asked by the respondent to attend meetings concerning the incident he was not given the opportunity to have a support person accompany him.

[14] The applicant gave evidence concerning the degree of supervision of him by the respondent on a day to day basis. He claimed that there was another employee of the respondent working with him at the Department’s premises to whom he reported. He also noted that he had sought and received support from the respondent’s Employee Assistance Program at the time his divorce proceedings commenced. It was the applicant’s opinion that treatment he had received as a consequence of that support had contributed to a continuing improvement in his condition.

[15] In response to a question about the reference by the respondent to an earlier disciplinary matter, the applicant maintained that the claim that had been made against him was not true, but that he had been compelled to “cop it on the chin” by the respondent and apologise to the person who had complained.

[16] When cross-examined the applicant conceded that the respondent’s employee to whom he claimed to have reported on a daily basis at the workplace was not his manager and was not responsible for his performance. He also agreed that during his performance appraisal he had agreed with the proposition that “due to the high level of autonomy that [he had] in his role as an installer/repairer, including the absence of direct management supervision, [the respondent] and its people managers need to have a high level of trust and confidence in [him]”.

[17] The applicant was also questioned about the earlier disciplinary incident when it had been alleged that he asked a person in a government agency dealing with aboriginal and Torres Strait Islanders whether the employee he was seeking (who was not at his desk) had “turned aboriginal and gone walkabout”. The applicant denied using the word aboriginal but agreed that he asked whether the person had gone walkabout.

[18] Cross-examination concerning the sequence of events involved in his taking and returning the couch elicited the following from the applicant:

• the couch was in good condition and not identified in any way as rubbish;



• he requested the other employee to assist him to take the couch;



• the couch was on the fourth floor and needed to be carried to the lifts and then taken outside to his work van;



• he was also accompanied to his van by a Departmental employee with whom he had a relationship.

[19] It was put to the applicant, and he conceded, that in filling out the application alleging unfair dismissal he had claimed that he had believed that the couch that he was “accused of misappropriating was to be disposed of as rubbish”. He also agreed that he had made a similar suggestion during the investigation conducted by the respondent and that he had told his union representative that he believed the couch was to be dumped. The applicant conceded however, that in the statement he filed in evidence he had said that he did not use the fact that staff were aware that furniture was to be thrown out as an excuse for his misconduct. He agreed that he did not know that the couch was rubbish at the time he took it and it was for that reason that he returned it. The applicant claimed that his contradictory statements were made as he was “not in a sound frame of mind”. When taken to the Departmental documentation he had lodged with his statement regarding the move between buildings and the disposal of rubbish and excess furniture the applicant agreed that there was nothing in the documentation to suggest that couches were to be thrown out. The applicant also agreed that the couch he had taken was in reasonable condition. Despite having claimed in the investigation process that Departmental staff members were talking about furniture being thrown out, the applicant agreed that he had been unable to identify any particular person who had made such a suggestion and that no one from the Department had told him that the couch was to be thrown out.

[20] The applicant agreed that he had not approached any representative of the respondent to admit his conduct before the matter was raised with him by management about two weeks after the incident. He also agreed that he at no time asked the respondent’s representatives to allow him to have a support person at meetings during the investigation. The applicant conceded that there had been a fourth meeting with the respondent’s representatives prior to the termination of his employment which he had not referred to in his statement, and at which he had his union representative present.

The respondent’s evidence

[21] The respondent filed statements by three witnesses. All statements were accepted into evidence but the witnesses were not required for cross-examination.

[22] The statement of Mr O 2, the respondent’s representative responsible for the contract with the Department where the applicant was situated set out the impact the applicant’s conduct had had on the respondent’s relations with that Department.

[23] According to Mr O the contract with the Department is an important one and it is important that staff located on-site to service the contract uphold the respondent’s values and standards of behaviour as they are the face of the respondent for the client.

[24] The matter had been raised with Mr O at a very important meeting with the Departmental secretary about two weeks after the incident. Mr O had been caught off guard as he was unaware of the incident. He considered that the meeting had been tainted by the incident and much of the short time allocated to the meeting had been devoted to the incident. Following the meeting arrangements were put in place to investigate the incident and the Department requested that the two employees identified as having taken the couch be removed from the site. It was Mr O’s evidence that the incident had been viewed extremely seriously by the Department. The CEO of the respondent had spoken to the Departmental secretary about the matter.

[25] Mr O had arranged the investigation into the previous disciplinary matter concerning the applicant and wrote on behalf of the respondent to apologise for the applicant’s behaviour in relation to that incident. He did not take part in the investigation process in relation to the incident involving the couch or the decision to terminate the applicant’s employment.

[26] The statement of Mr M 3 noted that he was the acting Area Manager of the respondent at the time of the investigation into the applicant’s conduct and, as such, the applicant’s “2-up” manager. On 23 February 2010 Mr M was told of the applicant’s conduct by the applicant’s manager, who had attended a meeting with Departmental security staff and had been briefed about the incident. The following day the applicant and his fellow employee involved in the incident had been invited to a meeting and their employment suspended pending the outcome of an investigation.

[27] After Mr M had met with Departmental security to ascertain the facts that were alleged, he invited the applicant to attend a formal meeting, together with a support person, to discuss the matter. The meeting, which was delayed to allow the applicant’s support person to attend, took place on 1 March. The incident was fully canvassed with the applicant and he was given an opportunity to explain what had occurred. After the meeting Mr M received a letter written on the applicant’s behalf by the union representative and a further meeting was arranged on 9 March. At that meeting the applicant was questioned further about his stated belief that the Department was disposing of unwanted furniture and the applicant provided Mr M with a letter from his doctor.

[28] After a break the meeting reconvened. Mr M advised the applicant of his findings in relation to the matter. In essence these were that the applicant had taken the couch from a customer of the respondent without permission. The applicant was asked if he had anything further to say but he did not.

[29] Following the meeting, having taken into account the applicant’s responses at the meetings, the letter received from the union, the nature of the applicant’s job, the applicant’s discipline and service records and his length of service, Mr M decided to terminate his employment. He took this decision given the seriousness of breach of the respondent’s Code of Conduct, the autonomous nature of the applicant’s work, and the need for the respondent to have trust in him. Mr M considered that the taking of the couch had destroyed the trust and confidence the respondent had in the applicant. He also considered that the applicant had put the relationship between the respondent and the Department at risk for a second time.

[30] Despite the fact that Mr M considered the applicant’s conduct justified summary dismissal, because of his length of service he decided to dismiss him with notice.

[31] The statement of Dr A 4 went to matters raised by the applicant’s doctor and psychologist in documents attached to his statement, and were directed at refuting any suggestion in those documents that the applicant’s conduct was a result of his depression. The applicant’s medical practitioners were not called as witnesses.

The submissions

[32] On behalf of the applicant, his union representative submitted that the applicant had explained the incident as occurring on a day when he was not thinking correctly. The applicant admitted taking the couch but had returned it, without prompting, in about 15 minutes. It was put that his action was not premeditated and was taken at a time when he was suffering depression for which he was not being treated.

[33] Although it was acknowledged that the matter was raised at the highest Departmental level with the respondent, it was put that the Department was not in possession of all the facts at the time, and that the relationship between the Department and the respondent did not appear to have been damaged.

[34] It was submitted for the applicant that the incident occurred in an environment where there was “scuttlebutt around the place” that things were going to be thrown out, the place was in a messy state, people had moved and removal vans were present. It was also put in mitigation that at the first meeting about the matter the applicant admitted what he had done but had difficulty trying to explain what motivated him, other than to point to the environment, his health condition and the other facts surrounding it. He described it as a moment of madness, a conclusion supported by his decision to return it almost immediately.

[35] It was conceded by the applicant that there was a proper investigation of the incident but it was argued that the respondent did not appear to consider alternatives to dismissal. It was put that the respondent is a large organisation and that there were other positions into which the applicant could have been transferred if the Department did not want him working there.

[36] It was also put that the incident was out of character for the applicant and that references he had provided would support such a finding. It was also argued that as the couch had been returned the applicant was not, in a technical sense, guilty of theft and probably not even serious misconduct.

[37] The applicant’s case was, essentially, an argument of proportionality. It was put that given his length of service, his health and the circumstances concerning the state of the Department’s move, the punishment of the applicant for his conduct of taking, but immediately returning, the couch was excessive. It was submitted for the applicant that he had admitted to his conduct, had not attempted to blame anyone else, and that the conduct had caused no damage to the Department or to the respondent.

[38] It was submitted for the respondent that there was a valid dismissal constituted by the misappropriation of the couch from the premises of the employer’s client in circumstances where the applicant had no authority to remove the couch and did not genuinely believe that he was entitled to remove the couch. It was put that the applicant admitted that he held a position of some responsibility and autonomy. In addition, the couch that was misappropriated was owned by the client and was in reasonable condition. It wasn’t ripped or torn or filthy and it wasn’t evident from its location or positioning that it was rubbish or detritus. It evidently had some degree of value and it could certainly have been sold or given away had the applicant not wished to keep it. It was uncontested that as no one had given the applicant permission to take the couch and that its removal was unauthorised. The respondent submitted that the applicant had conceded that the taking of the couch without authorisation amounted to theft despite the return of the item. The removal was not inadvertent and, at the time he removed it, the applicant intended to permanently deprive the Department of the couch. The applicant’s conduct therefore amounted to a valid reason for termination of his employment.

[39] Further, the respondent argued that there was no substance to the applicant’s claim that he believed the couch was rubbish that was to be thrown out. It was put that there was no evidence of any matter which could have induced such a belief in the applicant. The applicant gave inconsistent answers when questioned about his supposed belief. It was put that, on the evidence, the tribunal should find that the applicant was being dishonest when he asserted such a belief.

[40] It was also submitted for the respondent that the evidence did not support a conclusion that the applicant took the couch in a momentary act of madness as its removal required thoughtful planning. Nor, it was submitted, should it be accepted that the return of the couch altered the nature of the applicant’s conduct. The removal of the couch caused embarrassment to the respondent in its relationship with the Department and destroyed the respondent’s trust and confidence in the applicant.

[41] The respondent put that the applicant was afforded procedural fairness and given ample opportunity to respond to the matters of concern to the respondent and to put to the respondent all material he considered relevant.

[42] It was acknowledged by the respondent that the applicant was a long serving employee, but of particular importance was the applicant’s previous disciplinary history which had only six months earlier caused embarrassment to the respondent in its relationship with the Department. This matter, together with the autonomous role occupied by the applicant at the Department, resulted in Mr M determining that the continued employment of the applicant was not a viable option.

[43] So far as the medical information provided by the applicant was concerned, the respondent noted that one of the practitioners was a GP and no evidence was provided about that doctor’s expertise in mental disorders. The respondent also submitted that the specialist’s opinion was a preliminary view and did not state conclusively that the applicant’s conduct was a result of his mental condition. It was put that the evidence of the medical specialist who was a witness for the respondent was to be preferred, as the qualifications of the witness were set out, the evidence was thorough, and the witness was made available for cross-examination.

The respondent also submitted that the assertion made on the applicant’s behalf that Mr M did not consider alternatives to dismissal should not be accepted, as there was no evidence in relation to that matter and Mr M was not cross-examined about it. It was noted that Mr M considered all the evidence before him and took account of the applicant’s length of service and his disciplinary record. It was reiterated that reinstatement was not an appropriate remedy given Mr M’s evidence that the respondent had lost trust and confidence in the applicant.

Consideration of the issues

[44] I have considered this matter in the light of the requirements set out in s.387 of the Fair Work Act.

The applicant’s conduct in taking, and then returning, the couch is not in dispute. The applicant has admitted that he did not believe that the couch was being thrown out and was aware that he did not have authority to remove it. It was for these reasons that the applicant changed his mind and returned the couch to the Department. In light of the applicant’s role at the Department and the fact that he put in jeopardy the relationship between his employer and a major client, I must find that there was a valid reason for the termination of the applicant’s employment. In fact, the existence of a valid reason was not seriously challenged on the applicant’s behalf.

[45] Similarly, it was conceded by the applicant’s representative that the respondent conducted a proper investigation into the applicant’s conduct. The applicant was clearly notified of the reason for the termination.

[46] The applicant was given a number of opportunities to put to the respondent all those matters which he wished to have taken into account by the respondent in making the decision concerning his future employment. His union also made a written representation to the respondent on the applicant’s behalf. The applicant was accompanied by a union representative in the interviews which formed part of the formal investigation of the matter. The respondent at no time unreasonably refused to allow the applicant to have a support person present in any of the discussions which related to the dismissal. Although it is unnecessary to make such a finding, I do not consider that the discussion with the Department’s security officers or the meeting that was arranged solely for the purpose of suspending the applicant’s employment formed part of the formal investigation or the “discussions related to the dismissal” 5.

[47] I am satisfied that the size of the employer’s enterprise had no impact on the procedures followed in effecting the dismissal. It is a large corporation with many thousands of employees and has dedicated human resources personnel.

[48] While I am satisfied that the applicant regrets the conduct that led to the termination of his employment, I am not satisfied that his mental condition at the time caused that conduct or that it excuses the behaviour. I have taken into account that the applicant almost immediately changed his mind and returned the couch, but I must accept the respondent’s submission that the damage was done once the couch was taken. I must also take into account that the applicant did not, having reconsidered his actions, inform the respondent of his conduct. Had he done so the respondent may have been able to ameliorate the harmful effects of that conduct on its relationship with a major client.

[49] I must also have regard to the fact that the applicant had been disciplined less than six months previously for an incident which also caused embarrassment to the respondent and impacted on the relationship with the client for whom the applicant was performing work. In this regard I accept the respondent’s submission that its confidence in the applicant had been destroyed and, given the nature of the role performed by the applicant, it no longer trusted the applicant to perform work for it, particularly in circumstances where the applicant was the “face of the respondent” to the client.

Conclusion

[50] In all the circumstances of this matter I am unable to conclude that the termination of the applicant’s employment was harsh, unjust or unreasonable. I do not consider that the termination was disproportionate to the conduct given the potential for damage to the relationship between the respondent and a major client. The applicant’s conduct served to confirm any doubts that may have been raised by the earlier disciplinary matter. I am not prepared to find that the respondent should be expected to put at risk its contract with the client involved in this matter or any other client. The applicant has, on two occasions over a very short time period, shown a distinct lack of judgment. In such circumstances termination of the applicant’s employment was an appropriate response. His length of service was taken into account in the payment of notice where such payment was not otherwise required given the applicant’s misconduct.

[51] The dismissal was not unfair. The application is dismissed.

COMMISSIONER

Hearing details:

Canberra

29 June 2010

 1   Exhibit K1

 2   Exhibit T1

 3   Exhibit T2

 4   Exhbit T3

 5 Section 387(e) of the Fair Work Act 2009

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