Ashley Allister v Position Partners Pty Ltd
[2013] FWC 3530
•8 JULY 2013
[2013] FWC 3530 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ashley Allister
v
Position Partners Pty Ltd
(U2013/6591)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 8 JULY 2013 |
s394 unfair dismissal arbitration - misconduct alleged - bad language, bullying and harassment, disrespectful or defiant behaviour to employer, disparaging employer to client(s), breach of direction to provide medical certificate, breach of direction not to delete material from personal computer during the period of finishing up at work after termination.
Introduction
[1] On 18 February 2013 Mr Ashley Allister filed an application under s.394 of the Fair Work Act 2009 (‘the Act’) against Position Partners Pty Ltd for an unfair dismissal remedy regarding his dismissal on 4 February 2013. He was dismissed with pay in lieu of notice.
[2] The matter was conciliated and no settlement was reached. The matter was set down for arbitration before me. Pursuant to s.399 the matter was heard by hearing given the decision of the parties to cross examine witnesses. Written submissions and witness statements were filed, and the following witnesses gave evidence:
Mr Ashley Allister
Mr Mathew Kazi
Mr Tim Sherwell
[3] I have had regard to all the submissions and evidence.
Jurisdiction
[4] The parties submitted that all the jurisdictional requirements in ss.382-386 are met. However, the applicant submits that his dismissal was harsh, unjust or unreasonable. The respondent submits he was dismissed for valid reasons, and consistent with procedural fairness.
Harsh, Unjust or Unreasonable
[5] Section 387 of the Act provides:
‘387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.’
Applicant Submissions
[6] The applicant submits that he was working overtime without getting paid for it, and other similar allegations. This was at the heart of his problems with the company. On the applicant’s version of events he was warned in December 2012 for speaking to a customer about his employment conditions, and did not repeat the conduct. Then he sought information from his supervisor, Mr.Sherwell, about whether another employee was paid more than he was, indicating he would resign if he was. Mr.Sherwell indicated that this was not the case. There was no valid reason for termination of his employment, nor was procedural fairness afforded, and other matters 1.
[7] Most of the allegations made by the employer were expressly denied by the applicant 2. The applicant admits to raising his problems with his employment conditions with a customer on one occasion3, and admits sending the emails that Mr.Sherwell claims that he sent. A large number of submissions are put as to why Mr.Allister’s evidence should be preferred over that of Mr.Sherwell and Mr.Kazi4. Further submissions were put by way of final submissions, which reiterated many of these objections and dealt with other matters5.
[8] The applicant submitted that the alleged misconduct in reality comprised only three instances of misconduct, namely bullying of Mr.Kazi, aggressive conduct towards his supervisor Mr.Sherwell at the 30 January 2013 meeting, and swearing and coarse language in emails sent by him 6. This ignores other allegations about Mr.Allister’s conduct. The employer also alleges that he failed to provide a medical certificate as directed by his employer, discussed his dissatisfaction with his employment conditions with clients, and deleted material from his personal computer and other machines after his dismissal contrary to employer directions.
Employer Submissions
[9] The employer submitted that there was a valid reason for termination of the applicant’s employment because of his:
1. Insubordination and termination for threat and abuse to a manager.
2. Discussions with customers and clients regarding employment conditions.
3. Bullying, harassment and mistreatment of employee under his supervision.
4. Breach of the company ‘values policy’.
5. Abuse and unacceptable language in emails, which included material derogatory to Mr.Kazi and other employees, and repeated use of unacceptable language. His language included statements in the emails such as ‘Hey cunt face’, ‘Fuckn wanker’, ‘Cock Smoker’, ‘Kazi still a wanker’ 7.
17 December 2012 Warning
[10] The employer submitted that the applicant was warned on 17 December 2012, after a meeting when several issues were raised including 8:
1. Disregard for customers;
2. Lack of respect for Position Partners;
3. Current work circumstances.
[11] It submits that the applicant was then absent on personal leave for four days and failed to provide a medical certificate despite directions to do so.
30 January 2013 Meeting
[12] It submits that on 30 January 2013 the applicant instigated a meeting with Mr.Sherwell, his manager, at which he confronted Mr.Sherwell about his entitlements in comparison to another employee, who he considered was receiving more pay with less experience. Mr.Sherwell described the applicant’s conduct as ‘demanding’, ‘forceful’, ‘insubordinate’, ‘disrespectful’, and ‘inappropriate’.
[13] Following the meeting the applicant again was absent claiming illness on 31 January and 1 February.
4 February Meeting
[14] The employer submits that on 4 February the applicant was called to a meeting with his managers, Messrs. Sherwell and Bent. The company submits that the managers raised a number of issues with the applicant including his loss of licence, unacceptable and unprofessional behaviour with customers, his behaviour at the 30 January meeting and a lack of respect for a manager. The company submits that Messrs. Bent and Sherwell then decided to terminate the applicant.
4 February 2012 Letter of termination
[15] A letter of termination was issued to the applicant on 4 February 2012, which referred to 9:
1. Inappropriate and threatening behaviour by Mr.Allister on 30 January 2013;
2. General lack of respect for Position Partners and company values;
3. Refusal to communicate effectively with work colleagues and line manager;
4. Inappropriate and unacceptable use of language and content in company emails.
Deletion of emails contrary to employer directions
[16] The company submits that the applicant then deleted material from his computer, iPad and phone contrary to employer directions.
Company values
[17] The company submitted that the applicant was trained in and aware of the company ‘values policy’ 10, which lists certain conduct which is encouraged (eg. positive attitude, speak up - respectful, team player), and conduct which is not acceptable (eg. negative attitude, non supportive, non team player), and its policy on email and internet usage. The applicant admits that he was trained in and aware of the values policy, but denies any knowledge of its email and internet usage policy.
(a) Valid Reason
[18] The term ‘valid reason’ was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 11 , in relation to s.170DE of the Industrial Relations Act 1988. He said:
“Section 170DE(1) refers to a `valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is” `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s170DC.”
[19] Mr.Allister’s evidence is inconsistent in many respects with that given by Mr.Sherwell and Mr.Kazi. The issue of which evidence is to be preferred is of importance in this matter. The approach taken by this Commission to evidence was discussed in King v Freshmore 12, in which aFull Bench of the Australian Industrial Relations Commission, said:
‘[60] We note at the outset that the Commission is not bound by the rules of evidence. In this regard s.110 of the Act relevantly provides:
"(1) Where the Commission is dealing with an industrial dispute, it shall, in such manner as it considers appropriate, carefully and quickly inquire into and investigate the industrial dispute and all matters affecting the merits, and right settlement, of the industrial dispute.
(2) In the hearing and determination of an industrial dispute or in any other proceedings before the Commission:
(a) the procedure of the Commission is, subject to this Act and the Rules of the Commission, within the discretion of the Commission;
(b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just; and
(c) the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal
forms. . . ."
[61] But s.110(2)(a) does not mean that the rules of evidence are irrelevant. As the then President of the Industrial Relations Commission of Western Australia said in respect of a similar provisions in the then WA Act:
"However, this is not a licence to ignore the rules. The rules of evidence provide a method of enquiry formulated to elicit truth and to prevent error. They cannot be set aside in favour of a course of inquiry which necessarily advantages one party and necessarily disadvantages the opposing party (R. v War Pensions Entitlement Appeal Tribunal: ex parte Bott[1933] HCA 30; [1933] 50 CLR 228 Evatt J. at 256 (dissenting)). The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful control over a tribunal which is not bound by the rules of evidence."[59]
[62] A similar observation was made by the Industrial Commission of New South Wales in PDS Rural Products Ltd v Corthorn:
"First, it is correct to say, as the commissioner did, that he was not bound to observe the rules of law governing the admissibility of evidence (s 83). It should be borne in mind that those rules are founded in experience, logic, and above all, common sense. Not to be bound by the rules of evidence does not mean that the acceptance of evidence is thereby unrestrained. What s 83 does do in appropriate cases is to relieve the Commission of the need to observe the technicalities of the law of evidence. Common sense, as well as the rules of evidence, dictates that only evidence relevant to an issue which requires determination in order to decide the case should be received. This means that issues must be correctly identified and defined. This did not happen in this case."[60]
[63] We agree with the above observations.
...
[69] The application of the similar fact rule in an unfair dismissal case was considered by the Industrial Commission of New South Wales in Court Session in Amalgamated Metal Workers Union v Electricity Commission (NSW). In that case the Commission said:
"The primary question which arises in relation to the admissibility of any evidence concerns its relevance to the issues in the proceedings. All relevant evidence, that is, evidence probative of a fact or matter in issue, is prima facie admissible. The converse, that irrelevant evidence is not admissible, is also true.
It is, and has been for some time, a matter of some debate as to whether or not the similar fact rule is nothing more than an expression of the primary rule that evidence is admissible only if it is relevant. There is much to be said for the view that the question of whether evidence of `similar facts' is admissible in any case ultimately boils down to the question (by no means simple of answer in many cases) of whether or not the particular evidence is relevant to the issues in that case."
[20] The applicant submitted that Mr.Allister’s evidence should be preferred over that of Mr.Sherwell and Mr.Kazi, for a range of reasons put in different parts of its final submissions, and submissions in reply. I have taken those submissions into account in the decision I have made, and many are discussed below. The respondent chose to respond mainly by repeating the alleged sequence of events.
[21] Overall I had the opportunity to observe the three witnesses giving evidence, and their cross examination. I prefer the evidence given by Mr.Sherwell and Mr.Kazi to that of Mr.Allister where it is inconsistent. Mr.Allister’s evidence was unconvincing on issues which would not be of assistance to him. He denied using inappropriate language to Mr.Kazi, while using inappropriate language in emails he sent to other employees. He denied making negative comments about Mr.Kazi to his face, while making negative comments about Mr.Kazi in his emails. In contrast, Mr.Sherwell gave evidence about what he recalled, even if this was not in his witness statement. He simply truthfully told what happened rather than reading from a script or tailoring his evidence to what would serve his case, and as to be expected his recall was not always entirely perfect. Mr.Kazi simply gave his version of events in a truthful manner, and was also a convincing witness.
Mr.Allister’s Conversations with Clients
[22] Mr.Sherwell gave evidence that Mr.Allister told an internal employee meeting that he had advised a customer he would not come to a jobsite as requested because he would not get paid for that time. He also told the group he would not work any hours outside 8.30 am to 5 pm. Mr.Sherwell said he spoke to the customer in question who expressed disbelief that an employee would so openly communicate pay and conditions in such a negative manner 13. Mr.Allister confirmed that he raised problems with his employment conditions with a customer, namely the fact that ‘we don’t get paid overtime’ and refused the customer’s request to attend the job at 7 am, instead stating that he would not be there until 8.30 am14. He says the overtime matter was raised at the employee meeting, and that he got a written warning for raising the issue with the customer, and was angry about the warning15.
[23] Mr.Sherwell gave evidence that he arranged a meeting with Mr.Allister on 10 December 2012 and raised this issue with the applicant. Mr.Allister then told Mr.Sherwell that conversations of a similar nature were commonplace with customers. He said that he felt that the applicant did not accept that his behaviour was not acceptable and inconsistent with the business culture of respect and customer service 16.
[24] Mr.Sherwell then met again with Mr.Allister on 17 December 2012 and gave Mr.Allister a first written warning. He said that Mr.Allister tore the paper up without reading it, and stated he had done much worse at previous jobs and never received a warning, or words to that effect 17. Mr.Sherwell says that Mr.Allister tore and screwed up a warning he provided at the December 2012 meeting18. Later Mr.Sherwell said that Mr.Allister may not actually have torn it up but continued to say that he had screwed it up19.
[25] Mr.Allister only briefly deals with this meeting and the warning he received. He states that he told Mr.Sherwell he could not believe he received a warning for ‘speaking out’, and that he ‘signed the warning but was angry’ 20. He said that he did not tear up the December 2012 warning but scrunched it or folded it21.
[26] I accept Mr.Sherwell’s evidence that Mr.Allister told him that he had made such comments to customers on more than one occasion. Further, Mr.Allister did not receive a warning for ‘speaking out’ at a meeting, but for raising the issue with a customer, and refusing that customer service at 7 am, and for raising the issue with other customers. Mr.Allister did not behave as he should when receiving a warning, but instead was defiant, whether or not he tore up or screwed up the warning he was given. In my view Mr.Allister showed a lack of understanding of the conduct which was appropriate in the workplace. Mr.Sherwell could not be confident that such behaviour would not be repeated.
[27] Mr.Allister explained the circumstances, namely that he was not paid overtime, and had no obligation to work the overtime or out of times work 22. However, his employment contract included an all in rate for some overtime. No attempt was made to demonstrate to me that Mr.Allister was entitled to overtime under an award, or was covered by an award. Even if he was, it is not appropriate for an employee to disparage the business to a customer or customers. The fact that he did so constitutes a valid reason for termination of his employment. The fact that he was warned about it does not somehow remove it as a ground for termination of his employment. On the contrary, this shows that he was given proper notice of problems with his conduct as an employee, and the opportunity to respond and improve his conduct overall. Overall many of the alleged valid reasons for termination of Mr.Allister’s employment relate to his defiant attitude to his employer.
Mr.Allister Not Providing a Medical Certificate as Directed
[28] Mr.Sherwell gave evidence that Mr.Allister was absent on personal leave for four days (18-21 December 2012) after receiving the warning, he was repeatedly asked to provide a medical certificate. He said that he agreed to do so, and did not do so 23. Mr.Allister did not deal with that issue in his witness statement. Mr.Dircks submitted that it was not possible to obtain one retrospectively24, and Mr.Allister gave evidence to similar effect25. He admits that he did not obtain from his doctor an explanation to that effect, which he presumably could have done26, and admits that he breached an employer’s lawful direction regarding his employment27. Mr.Sherwell gave evidence that this failure was discussed with Mr.Allister28.
[29] Mr.Allister could have obtained either a medical certificate from his doctor, or a statement that it was too late to provide a medical certificate. He was given a lawful and reasonable direction by his employer and simply refused to comply with it, or adequately explain why it was not possible to comply with it. Submissions that he could not have complied with it because he left it too late to request one are not to the point 29. In fact he agreed to comply with it and then did not do so. Mr.Allister’s breach of the employer’s lawful and reasonable direction to obtain a medical certificate, or failure to adequately explain his inability to comply with the direction, was a valid reason for termination of his employment.
Mr.Allister’s ‘Confrontation’ with Mr.Sherwell on 30 January 2013
[30] Mr.Sherwell gave evidence that on 30 January 2013 Mr.Allister phoned him and asked to meet with him. Mr.Allister then met with Mr.Sherwell. Mr.Sherwell said that Mr.Allister stood and chose to remain standing and raised with him the salary level of another employee. Mr.Sherwell said that Mr.Allister was ‘excited and agitated’, was eating, was ‘demanding and forceful’ in his questioning, and left to he said seek to either ‘confirm or deny my response and said that if he discovered I was not telling the truth, he had his resignation letter and would resign immediately’. Mr.Sherwell said that Mr.Allister’s behaviour showed total disrespect for him as manager, and non-acceptance of the workplace culture. Mr.Sherwell said that he was rung later by Mr.Allister, and again later when Mr.Allister apologised for the first call.
[31] Mr.Allister denied many aspects of Mr.Sherwell’s evidence 30. Submissions were put justifying his conduct, and to the effect that no ultimatum was put, and no aggression31. However, on Mr.Sherwell’s evidence there was an ultimatum and aggression, and an inappropriate and disrespectful attitude towards him as a manager.
[32] I prefer the evidence of Mr.Sherwell to that of Mr.Allister. I find that Mr.Allister was disrespectful in his conduct towards his manager Mr.Sherwell, and showed a lack of understanding of the appropriate way in which to raise problems with his employment conditions. This was a valid reason for termination of his employment.
Emails Sent by Mr.Allister
[33] Mr.Sherwell gave evidence that Mr.Allister sent emails which showed unacceptable behaviour, in particular an unacceptable treatment of Mr.Kazi 32. The emails include various swear words, including some already quoted, and negative statements about Mr.Kazi and other employees and the company processes (25 January 2013 9.10 am, 25 January 2013 9 am, 18 January 2013 1.35 pm, 14 January 2013 8.49 am, 19 November 2012 at 17.11 pm). Other statements are referred to by the employer in its final submissions, such as ‘never ever ever fuckn ever will I be a friend to that wanker’ (referring to an email sent by colleague Mr.Robert Klaric), and ‘get to miss another boring shit waste of time team development meeting’33. Mr.Sherwell gave evidence that others might be subject to disciplinary action for sending inappropriate emails.
[34] Mr.Allister admits that he sent the emails, but Mr.Dircks submitted that some material such as a heading might have been first sent by others, and others sent inappropriate emails. He submitted that others used similar language, Mr.Allister did not abuse any person directly, some of this was laconic and humorous, other employees behaved in a similar manner, it was a workplace where people swore, emails were generally of a private sort of gossipy nature, the applicant was not given the opportunity to explain or provide any defence 34. The emails were not bullying of Mr.Kazi35. The applicant put further submissions that with hindsight some of his emails were inadvisable, no email policy was put in evidence and the applicant had not been trained in it, the emails were jocular and jesting in content and others used swear words, some email headings might have been started by others (Cock Smoker)36. There was also a dispute about the date at which the emails came to the attention of the employer37. In relation to that last issue it appears only some of the inappropriate emails sent by Mr.Allister were known before termination, but more were discovered after termination when Mr.Allister’s accounts were searched by the regional manager, Mr.Bent38. In any event the most important issue is the content of the emails.
[35] The issue of unacceptable language has been considered in many tribunal decisions 39. Such language has to be considered in the context of the particular workplace and other matters. In my view the language used in the emails constitutes a valid reason for termination of Mr.Allister’s employment, even if it is the sort of workplace where some form of rough and tumble language is used more often than in other workplaces. None of the factors advanced by Mr.Allister explain or justify the sort of language he deliberately used, and put in writing in business emails to business colleagues. I do not accept that there is any inconsistency in treatment of employees in relation to such matters. Mr.Sherwell said that he would be disciplining another employee for inappropriate email content that had come to light40. Even if there is some inconsistency, the employer in this case has not lost the right to attempt to enforce appropriate standards in email conduct and language. As with other valid reasons for termination of employment, the email language of itself might not necessarily be sufficient to mean that the dismissal is not harsh, unjust or unreasonable. However, this valid reason must be considered in the context of a number of other valid reasons and the full circumstances.
The Conduct of Mr.Allister towards Mr.Kazi
[36] The employer it appears overall treated Mr.Allister well. When Mr.Allister lost his licence for excessive speeding, the employer took special steps to enable him to continue to work, given that it was essential to his work that he travel. The employer arranged for Mr.Kazi to work as Mr.Allister’s driver, and for Mr.Allister to train Mr.Kazi.
[37] Mr.Kazi gave evidence that he worked with Mr.Allister as a designated driver, in order to learn about Technical Services and Machine Control Support as a trainee. He said that Mr.Allister was ‘short’ with him, showed no interest in teaching him, took little time to teach him on the job, would regularly get frustrated with him and call him an ‘idiot’ and swear, make ‘snide and condescending comments about me’, was often hung over at work, would refer to other colleagues with ‘rather crass language’ if they made a mistake. He said that Mr.Allister was a negative disrespectful person, who made rude comments about a number of people, and ‘often treated me poorly’ 41.
[38] Mr.Allister denied much of this evidence, and said that he complained about Mr.Kazi’s poor aptitude to do the technical work, and poor driving 42.
[39] The applicant challenged the evidence of Mr.Kazi on a number of grounds 43. However, the fact that some teaching of Mr.Kazi took place, and that Mr.Kazi for example made mistakes44, does not change the force and context of Mr.Kazi’s evidence. It is possible for some teaching to take place while still the teaching is not sufficient, as Mr.Kazi contended. It is possible for mistakes to be made because a learner is learning. I do not accept that Mr.Allister attending work hung over would necessarily not be able to perform work to an acceptable standard and that therefore he was not hungover. On balance the better view is that Mr.Allister was observed to be hungover. The fact that Mr.Kazi did not complain about bullying does not meant that bullying did not occur45. It is understandable that someone being trained would attempt to put up with the conduct engaged in by his supervisor, who is senior to him and has some standing in the business. Overall the objections have little or no substance.
[40] I prefer the evidence given by Mr.Kazi to that of Mr.Allister. I am satisfied that Mr.Allister’s treatment of Mr.Kazi in language and behaviour was inappropriate, and this constitutes a valid reason for the termination of Mr.Allister’s employment.
Termination Meeting
[41] Mr.Sherwell gave evidence that he met with Mr.Allister on 4 February 2012 after further personal leave, with Mr.Bent present. He said that he raised with Mr.Allister a number of issues, his loss of a drivers licence, his expressions of discontent and challenges, communication with customers over his employment conditions, his failure to provide a medical certificate despite repeated requests, and the manner of his approach to Mr.Sherwell. He asked Mr.Allister to respond. Mr.Allister indicated his frustration with Mr.Kazi as a driver. He was given the opportunity to think matters through. Later that day Mr.Sherwell read out to Mr.Allister a termination letter 46.
[42] Mr.Sherwell gave evidence that when Mr.Allister was terminated he told a meeting of staff that he’d ‘just received the arse’, and said this in front of a customer 47. Again, this is inappropriate conduct on the part of Mr.Allister.
[43] Mr.Allister disagreed with many aspects of this evidence 48. The applicant submitted that I should prefer the evidence given by Mr.Allister for a range of reasons. The applicant submitted that there were different versions of the dismissal meeting and that the version given by Mr.Sherwell does not ring true for various reasons, and that the dismissal had been determined beforehand49. The failure to cross examine Mr.Allister about what happened at the dismissal meeting on 4 February 201250 is something I need to take into account, but Mr.Sherwell was extensively cross examined on his version of events. In relation to the failure to call a Mr.Bent51, a witness to the dismissal meeting, Mr.Sherwell was present at the meeting and gave satisfactory sworn evidence. In relation to the failure to provide any evidence of a previously undisclosed alleged communication between Mr.Allister and a Mr.Josh Allen52, Mr.Sherwell honestly gave evidence about his recollection rather than simply reading out at self serving script, which is consistent with the impression I gained on hearing his evidence that he endeavoured to tell the truth about the events in question. In relation to the dismissal meeting, again too much is made of small differences in evidence, and the leap is then made that Mr.Sherwell’s evidence is ‘fiction’53. Again while Mr.Bent was not called, Mr.Sherwell was and he gave persuasive sworn evidence. In relation to claims about a drivers licence, again I see no reason to not believe Mr.Sherwell54.
[44] Overall I prefer the evidence given by Mr.Sherwell. The meeting was conducted in a proper manner, and the substance of the employer’s dissatisfaction with Mr.Allister’s conduct was communicated to him.
[45] The conduct of Mr.Allister after the termination of his employment is consistent with evidence given about his earlier conduct.
Mr.Allister Wiping His Computer
[46] Mr.Sherwell gave evidence that Mr.Allister wiped material from his company computer, iPhone and iPad. He told him to stop doing this, but Mr.Allister continued to do it 55. He denied that Mr.Kazi did it, because he saw Mr.Allister do it56. Mr.Kazi said that Mr.Allister asked him how to wipe everything off the computer, but that he did not do so57. Mr.Allister said that he asked Mr.Kazi to delete personal material, because he himself was unable to do so58.
[47] The applicant submitted that there were problems with Mr.Sherwell’s evidence including inconsistency about whether he was there or not when the applicant was finishing on the company computer, and other matters 59.
[48] I prefer the evidence given by Mr.Sherwell and Mr.Kazi, although there was on occasion some vagueness as to a specific detail. However, I am satisfied that Mr.Sherwell told Mr.Allister not to delete material from his company computer and other devices, and that Mr.Allister then proceeded to do so in breach of that request.
[49] The applicant submitted that an event that occurred after dismissal cannot become a valid reason for dismissal 60. There is prima facie no reason on the face of the legislation to accept such a submission. The terms of s.387 refer to a valid reason ‘related to the person’s capacity or conduct’, which could for example include conduct at the workplace immediately following a termination and during a notice period or finishing up arrangements. In this case Mr.Allister was paid in lieu of notice, did not have to work out his notice period, but did have to engage in final actions to finish his employment, such as returning his computer and other equipment. The misconduct occurred during this final period. Even if the submission is correct, the conduct of Mr.Allister after termination reveals the same defiant attitude to his employer which is at the heart of other valid reasons for termination of his employment.
[50] This conduct is a valid reason for termination of Mr.Allister’s employment.
Other Matters
[51] In relation to other submissions not dealt with, such as previously undisclosed hearsay evidence 61, again Mr.Sherwell honestly gave evidence about his recollection rather than simply reading out a self serving script. In relation to the Josh Allen claim, again Mr.Sherwell was endeavouring to give honest evidence about what actually happened. The applicant claims that this was an ‘extraordinary claim’, and complained that it was not raised before62. This was a factor in the decision to dismiss Mr.Allister and was not put to the applicant as it should have been. However, it simply added to the overall impression of unsatisfactory conduct and attitude of Mr.Allister.
[52] In relation to the submissions about a laminated copy of the values policy 63 this is of little practical importance. Mr.Allister knew about the policy. In relation to a statement that Mr.Allister allegedly made about there being no need to pay him64, I do not agree that this might not have been said. Mr.Sherwell was a credible witness, while Mr.Allister was not. In relation to the claims about ringing back, and consultation with HR65, some imprecision in such accounts is entirely to be expected. Again the applicant makes too much of the issue. I see little or no reason not to believe in broad terms the account given by Mr.Sherwell and Mr.Kazi, having regard to the fact that there will always be some degree of imprecision in memory and other matters. I have had regard to all the submissions put by the applicant and in my view it is necessary that I prefer the evidence given by Mr.Sherwell to contrary evidence given by Mr.Allister.
Conclusion
[53] I find that there were valid reasons for the termination of the applicant’s employment. These are set out above.
(b) Person Notified of that Reason
[54] The applicant was notified of most of these reasons for the termination of his employment. Mr.Allister’s inappropriate conversations with clients, and failure to provide a medical certificate, were raised not in the termination letter except in general terms referring to the values of the company, but were raised in the termination meeting. Mr.Allister’s conduct towards Mr.Sherwell on 30 January 2013 was raised in the meeting and letter. Inappropriate emails were referred to in the termination letter. Mr.Allister’s conduct towards Mr.Kazi was not directly raised. Mr.Allister had not deleted files from his computer and other devices until after his termination. The applicant sought to make these points and others in his submissions 66. However, overall not every reason was notified to Mr.Allister but the broad thrust of the valid reasons for termination of his employment were. Mr.Allister was generally aware of the problems that the employer had with his conduct, and was in general in a position to respond to those alleged difficulties.
(c) Opportunity to Respond to any Reason
[55] The applicant was given an opportunity to respond to the concerns that the company had with his conduct on several occasions. He took advantage of those opportunities and did respond. Mr.Allister should have been in no uncertainty as to the general nature of the employer’s concerns with his conduct, which arose out of his generally defiant attitude to his employer. Specific issues were mentioned on some occasions but not others, but in substance there was no denial of an opportunity to respond, or there was a denial which in this case should not be given great weight. Mr.Allister was a forthright witness, capable of raising his concerns if he wished to.
(d) Unreasonable refusal to allow support person
[56] Mr.Allister did not request a support person.
(e) Warnings of Unsatisfactory Performance
[57] Mr.Allister was given a formal warning of unsatisfactory performance.
(f) Size of Business, (g) Dedicated Human Resource Specialists
[58] There is no evidence of this before me.
(h) Any Other Matters
[59] I have had regard to all matters raised by the parties.
Harsh Unjust or Unreasonable
[60] In my view Mr.Allister was accorded a ‘fair go all round’. His dismissal was not harsh, unjust or unreasonable. An order dismissing the application is contained in PR537771.
DEPUTY PRESIDENT
Appearances:
Mr G Dircks for the applicant
Mr M Ritchie and Mr N Barkatsas for the respondent
Hearing details:
Melbourne
2013
4 June
Final written submissions:
2013
14 June, 21 June, 26 June
Schedule 1
Schedule 2
1 Applicant Final Submissions, paragraphs 2 onwards
2 PN15-116;
3 Exhibit A2, paragraphs 34-38
4 Applicant Final Submissions, paragraphs 5-219
5 Applicant Submissions in Reply
6 Applicant Submissions in Reply, paragraphs 2-3
7 Exhibit P1
8 Schedule 1
9 Schedule 2
10 Exhibit P3, Attachment TS1
11 (1995) 62 IR 371 at 373
12 Print S4213
13 Exhibit P3, paragraphs 18-20
14 Exhibit A2, paragraphs 34-37
15 Exhibit A2, paragraphs 40-46
16 Exhibit P3, paragraphs 22-24
17 Exhibit P3, paragraphs 34-36
18 Exhibit P3, paragraphs 35-36
19 PN1141-1148
20 Exhibit A2, paragraphs 44-47
21 PN362-3
22 Applicant Final Submissions, paragraphs 17-22
23 Exhibit P3, paragraphs 37-38
24 PN61-66
25 PN393
26 PN502-503
27 PN516
28 PN1137
29 Applicant Final Submissions paragraphs 128-131
30 PN345-386
31 Applicant Final Submissions paragraphs 99-110
32 Exhibit P3, paragraph 83
33 Respondent Submissions paragraph 46
34 Applicant Final Submissions paragraphs 132-146
35 Applicant Final Submissions paragraphs 80-98
36 Applicant Final Submissions paragraphs 64-79
37 Applicant Final Submissions paragraphs 205-210
38 Exhibit P3, paragraph 82
39 Eg. Linfox v. Stussel PR517531; Ford v. Vita Group Limited [2010] FWA 4630, Connor C, 28 June 2010
40 PN1442
41 Exhibit P2, paragraphs 2-12
42 Exhibit A2, paragraphs 30-33; PN743-756; PN559-712
43 Applicant Final Submissions, paragraphs 34-63, paragraphs 157-174
44 Applicant Final Submissions, paragraphs 39, 41, 43, 44, 45
45 Applicant Submissions in Reply, paragraph 2
46 Exhibit P3, paragraphs 68-77
47 PN1412-1417
48 Exhibit A2, paragraphs 57-66; PN402-416
49 Applicant Final Submissions paragraphs 121-127
50 Applicant Final Submissions, paragraphs 5-7
51 Applicant Final Submissions paragraph 11
52 Applicant Final Submissions, paragraph 12
53 Applicant Final Submissions, paragraphs 186-196
54 Applicant Final Submissions, paragraph 197
55 Exhibit P3, paragraph 79
56 PN1071-1074
57 PN853-859
58 PN811-824
59 Applicant Final Submissions paragraphs 198-203; paragraphs 111-116
60 Applicant Final Submissions paragraph 111
61 Applicant Final Submissions, paragraph 13
62 Applicant Final Submissions, paragraphs 147-154
63 Applicant Final Submissions, paragraph 175
64 Applicant Final Submissions, paragraph 176
65 Applicant Final Submissions, paragraphs 181-185
66 Applicant Final Submissions paragraphs 212-215
Printed by authority of the Commonwealth Government Printer
<Price code C, PR537509>
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