Ashley Brown v South Coasts Trucks and Machinery
[2020] FWC 2249
•1 MAY 2020
| [2020] FWC 2249 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ashley Brown
v
South Coasts Trucks and Machinery
(U2019/867)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 1 MAY 2020 |
Application for Relief of Unfair Dismissal – dismissal not harsh, unjust and unreasonable – application dismissed.
[1] Mr Ashley Brown (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 29 January 2019 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by South Coasts Trucks and Machinery Pty Ltd (SCTM – the Respondent) on 8 January 2019 was unfair.
[2] In its Form F3 – Employer response to unfair dismissal application SCTM stated that it had 10 employees at the time of the dismissal. 1 However, SCTM did not raise a jurisdictional objection on the basis that it was a small business employer and that it complied with the Small Business Fair Dismissal Code nor was this issue pressed at the hearing of Mr Brown’s application.
[3] The application was heard on 21 and 22 October and 13 December 2019. At the hearing, Mr Nigel Wines appeared for the Applicant 2, while Mr Brett Heath appeared with permission for the Respondent.
[4] Mr Brown gave evidence on his behalf along with:
• Ms Emily Munro, the Applicant’s former wife;
• Ms Mary Perez, the Applicant’s wife; and
• Dr Rashid Ali, the Applicant’s treating psychiatrist.
[5] Evidence for the Respondent was given by:
• Mr Rocco Papallo, a Director of SCTM;
• Mr Nicholas Papallo, Payroll Clerk at SCTM; and
• Mr Mark Johnson, Sales Manager for SCTM at the time of the Applicant’s dismissal (Mr Johnson has since left the business).
[6] Senior Constable Peter Knowles of the NSW Police Force (Queanbeyan Police Station) gave evidence as a result of an Order Requiring a Person to Attend the Fair Work Commission issued on 9 October 2019.
[7] For the reasons set out below, I find that Mr Brown’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed.
Background
[8] Mr Brown was employed by SCTM as a sales representative located at its Queanbeyan site in New South Wales (NSW). SCTM sells trucks and excavation equipment. While Mr Brown commenced in that capacity in September 2012, he only commenced employment with SCTM in August 2014 when it bought the business previously operated by an entity called Siteworks. Mr Brown was the only employee of the SCTM based at the Queanbeyan site, though mechanics from the Respondent’s Wollongong’s branch visited the site from time to time to perform service work for clients.
[9] On 23 October 2018, Mr Johnson (who had only recently commenced employment with SCTM) made an unannounced visit to the Queanbeyan site accompanied by Mr Adrian Martinello. When they arrived Mr Brown was assisting a client outside so they proceeded to enter the building without him. Upon entering the premises Mr Johnson went to the mezzanine level where there were two bedrooms. The rooms were intended to be used by visiting SCTM mechanics undertaking service work for clients. Stored in one of the bedrooms and the adjacent area were some of Mr Brown’s personal effects. These personal effects included hydroponic lamps among other things. Mr Johnson was concerned about the nature of the items and took several photographs of them. Mr Brown, who by that time had joined Mr Johnson, was asked by Mr Johnson to remove the items by that Friday (26 October 2018). At the time, Mr Brown advised Mr Johnson that he had Mr Rocco Papallo’s permission to store the personal effects on the premises.
[10] Messrs Brown, Johnson and Martinello subsequently adjourned to Mr Brown’s office to discuss an issue relating to Mr Brown’s dealings with a particular client. The discussion saw Mr Johnson issue Mr Brown with a warning letter. During their discussion Mr Brown became quite distressed such that he called Ms Munro and asked her to come to the workplace. Ms Munro subsequently attended the workplace and took Mr Brown home. While Mr Brown returned to the workplace that evening and removed the majority of his personal effects, he never returned to work prior to his dismissal.
[11] Mr Johnson returned to the Queanbeyan site on 30 October 2018 to find some of Mr Brown’s personal effects still on the premises. Mr Johnson contacted the Queanbeyan Police Station given his concerns that Mr Brown may have used the hydroponic equipment to propagate marijuana on the premises. Senior Constable Knowles attended the workplace shortly thereafter and inspected the remaining items. Senior Constable Knowles identified marijuana residue in a dehydrator which was among Mr Brown’s personal effects remaining on the premises.
[12] On 26 October 2018 Mr Rocco Papallo wrote to Mr Brown requiring him to attend a meeting at the Queanbeyan site on 2 November 2018. The letter included the following:
“This letter is notice for you to attend a meeting. The purpose of the meeting is to determine your involvement with the alleged storage of questionable material on company premises.
…
Also present at the meeting will be Mark Johnson. Due to the nature of this meeting, you are entitled to bring a support person …
In the meeting you will have an opportunity to present any clarifying information that you believe is relevant to the matter.
We will consider your response at the meeting and decide if further investigation is required before a decision is made regarding your ongoing employment.” 3
[13] On 30 October 2019 Ms Munro emailed Mr Rocco Papallo advising that Mr Brown had discussed the above meeting request with his doctor earlier that day and had been advised that he was not fit to attend the meeting. 4
[14] On 14 December 2018 Mr Papallo again wrote to Mr Brown requiring him to attend a meeting on 17 December 2018 at SCTM’s Smeaton Grange premises in NSW or via conference call. The letter was otherwise in similar terms to his letter of 26 October 2018.
[15] On 16 December 2018 Mr Brown emailed Mr Rocco Papallo the following correspondence from his treating psychiatrist, Dr Rashid Ali. The correspondence was addressed to Mr Papallo and dated 15 December 2018.
“I am Mr Ashley Brown's psychiatric doctor and I am treating his work-related anxiety and depression.
Mr Brown has advised me that he has received a letter from you to attend a work related meeting on a very short notice on Monday the 17th December.. [sic]
Please note that Mr Brown suffers from Anxiety and depression severe in intensity. He is seeing me for medications and counselling and he also sees a private psychologist Ms Jafri.
Mr Brown's anxiety and depression is so severe at present that attending this meeting will be detrimental for his mental state and his anxiety and depression will get worse which will impact his future recovery. I have advised him not to attend any work related meeting by the employer including on 17th December with you or in the future unless he gets a fitness certificate from me to attend any such meetings.
If SCTM insists on such meetings, SCTM will be responsible for Mr Brown's deterioration in his mental state.
Please do not hesitate to contact me if you have any queries.” 5
[16] On 20 December 2018 Mr Brown received a letter headed “RE: Your alleged conduct during your employment” which signed by Mr Rocco Papallo. The letter stated:
“I am writing to you about your alleged conduct during your employment with South Coast Trucks and Machinery Centre (SCTM).
On 23rd October 2018, Mark Johnson, Sales Manager for Sydney Trucks and Machinery Centre attended our Queanbeyan branch where you work, after I had advised you the day prior you would now report directly to him. It was on this visit Mark discovered equipment used in the cultivation of hydroponic crops and other pressure vessels and other suspicious equipment. Several photos were taken on that day to document this and it is noted none of this equipment is related to the servicing or support of construction equipment we sell.
We note that you are the only employee that works at this branch and have keys to access this branch at that time.
Upon further investigation, it became evident that this equipment is normally utilised for cultivating illicit drugs. Subsequently, SCTMC [sic] has contacted the NSW Police, who attended the premises and filed a report.
Furthermore, the company has made several attempts to meet with you face-to-face and via telephone conference to discuss this incident and your alleged conduct, specifically on the following occasions:
• On 26 October 2018 a letter was sent to you requesting you to attend a meeting at company premises on 2nd November 2018. Your response to this request was that Dr. Balogun informed that you were not fit to attend.
• On 14 December 2018 a letter was sent to you requesting you to attend a meeting at company premises or alternatively to be available for a telephone conference. You responded to this request by providing a letter from your Psychiatrist Dr. Ali, advising you would not be fit to attend a meeting now or in the future.
As such, the company is requesting your written response to the abovementioned allegations by COB 4th January 2019. Please send your response to Rocco Papallo at … or mail to … If you require additional time to prepare your response, please contact Rocco Papallo on … prior to this date.
Please note that these allegations may amount to serious misconduct and may result in the termination of your employment. Your response will be considered prior to any decision being made regarding your employment.” 6
[17] Mr Brown responded to Mr Papallo by email on 4 January 2019 in the following terms:
“Thank you for your letter dated 20th of December 2018. I acknowledge receipt of your email and express posted letter
I note in your letter that you have made a report to the New South Wales police and they have attended the premises and filed and a report. To date I have not been contacted or charged for any illegal activity.
I acknowledge receipt of the companies [sic] two previous emails requesting a meeting in the first request and meeting via conference call in the second request. The first being responded to with a letter from my doctor saying that it was not in the best interest of my mental health to attend such a meeting at that time. And the second request being responded to by my psychiatrist Dr Rashid. In this letter which was addressed to you he clearly indicated that no further requests for a meeting should be send [sic] and that I was not to attend any such meetings without first getting medical clearance from him. Dr Rashid also mentioned that should you have any queries that he was more than happy to speak with you.
Despite this you have ignored advice from my to [sic] professional medical practitioners and sent yet another request on this issue which has negatively impacted on my mental health.
As a result I have lodged bullying complaints against the company with your insurance company EML
I would consider your ongoing letters and demands about meetings and written statements as further and ongoing bullying.
If you have any prove [sic] that I was involved in any illegal activity, please provide this to insurance company and stop writing to me any further letters or email which which [sic] are causing me further stress and effecting my mental health adversely.
I am preparing my statement to the insurance company and you will get a summery [sic] of that statement in due course. Consider this pending statement as my response to your recent letter.
I will reiterate to please stop writing to me demanding to attend meetings or for any written response as I am going through your insurance company in regards to this complaint. Any further correspondence from you would be considered ongoing bullying on your part.” 7
[18] On the 8 January 2019 Mr Rocco Papallo wrote to Mr Brown terminating his employment. The termination letter read:
“I am writing to you about the termination of your employment with South Coast Trucks & Machinery Centre ("the Company").
I refer to the occurrence on the 23rd of October 2018 when the Company discovered drug paraphernalia stored on Company premises at your location of work. We note that you are the only employee that works at this branch and that had keys to access this branch at the time.
The Company has made several requests to discuss this incident with you to which you have advised you could not attend. Specifically, the following attempts have been made:
• On the 26th of October 2018 a letter was sent to you requesting you to attend a meeting at company premises on 2nd November 2018. Your response to this request was that Dr. Balogun informed that you were not fit to attend the meeting.
• On the 14th of December 2018 a letter was sent to you requesting you to attend a meeting at company premises or alternatively to be available for a telephone conference. You responded to this request by providing a letter from your treating specialist advising you were not fit to attend a meeting now or in the future.
• On the 20th of December 2018, instead of requesting for you to attend a meeting, a letter was sent to you requesting you to respond in writing to the allegations.
On the 4th of January 2019 you responded in writing alleging that the Company was bullying you by requesting to meet with you and by requesting your response to the allegations. In this response you also stated that you had not been contacted or charged for any illegal activity, and you further refused to respond to the allegations regarding your conduct.
I note that the Company's requests to meet with you and requests for your response regarding your conduct does not constitute as bullying under the law.
I also note that you were advised in writing that the allegations may amount to serious misconduct, may result in the termination of your employment, and that your response would be considered before any decision was made. The Company had not indicated that it would make its decision on whether the conduct was proven to be illegal; the notice to you about the notification to NSW police indicates the Company views the allegations in a serious degree.
As you have continued to refuse to respond to the allegations and you were the only employee working and with access to the Canberra branch at the time the Company became aware of the drug paraphernalia, the Company believes this conduct was substantiated and amounts to serious misconduct under regulation 1.07 of the Fair Work Regulations 2009 (Cth). In particular, the Company deems you:
• Engaged in wilful or deliberate behaviour that is inconsistent with the continuation of the employment contract; and
• Have refused to comply with a lawful and reasonable instruction.
As you have been terminated for serious misconduct you are not legally entitled to notice or payment in lieu of notice. You will be paid any outstanding annual leave entitlements and a final payslip will be issued to you on 10th January 2019.” 8
[19] As previously noted, Mr Brown lodged his unfair dismissal application on 29 January 2019.
The Applicant’s case
[20] Mr Brown in his written submissions contended that his dismissal was harsh, unjust and unreasonable. Among other things, Mr Brown contended that there was no valid reason for his dismissal, he had not been afforded an opportunity to respond to the allegations due to the effects of his acute mental condition, that given his mental health at the time SCTM was unreasonable in requesting that he attend meetings and in dismissing him SCTM acted without sufficient evidentiary material. As to remedy, Mr Brown did not seek reinstatement but submitted that he should be paid compensation for lost earnings together with various other payments, including outstanding entitlements and commission payments.
[21] At the hearing Mr Brown contended that his dismissal was an open and shut case of unfair dismissal, adding that his dismissal was unjust because he was not guilty of misconduct as he had sought permission to store some of his personal effects at the workplace. Mr Brown described SCTM’s behaviour as extremely capricious in circumstances where it decided to dismiss him only four days after his email response of 4 January 2019. Mr Brown contrasted this with his own behaviour which he described as exemplary, highlighting that he abided with the direction to remove the items from the workplace. Among other things, Mr Brown also posited that there was nothing in any of the evidence that he had engaged in the cultivation of marijuana or any illegal material or drug production on site, adding that there was no evidence of any criminal activity on site. Mr Brown also highlighted what he submitted were false statements in several of the witness statements relied on by SCTM, e.g. inconsistencies between Mr Johnson’s statement and his oral evidence about when the photos annexed to his witness statement were taken. Mr Brown’s submissions regarding the considerations in s.387 of the Act are set out later in this decision. As to remedy, Mr Brown acknowledged that reinstatement was not appropriate, that he was in receipt of workers’ compensation payments at about his salary rate and that he was not fit for work after 23 October 2018.
[22] Mr Brown deposed in his witness statement 9 that he had never committed wilful or deliberate behaviour inconsistent with an employment contract issued by SCTM because he had never received an employment contract from SCTM. Mr Brown added that he had also never acted in a way that could cause an imminent and serious risk to another person’s health or safety. Mr Brown further deposed that he had a number of mental breakdowns prior to 23 October 2018 and that Mr Rocco Papallo was aware of this and the fact that he was seeking psychological help. As to the events of 23 October 2018, Mr Brown deposed inter alia that:
• Messrs Johnson and Martinello arrived unannounced at the Queanbeyan site at around 9:30am as he was assisting a client load some goods onto a truck and they proceeded to enter the premises;
• when he entered the building, Mr Martinello said that Mr Johnson was looking around the premises and was up on the mezzanine level where the bedrooms were;
• when he caught up with Mr Johnson he was in the room where he had stored his personal effects, adding that in response to a question from Mr Johnson he indicated that Mr Rocco Papallo had granted him permission to store the effects on site;
• once in his office Mr Johnson said he was uncomfortable with him storing his personal effects at the premises and asked him to remove them by the end of the week;
• Mr Johnson then asked him to produce the worksheet for a client called TP Dynamics;
• when he produced the worksheet, Mr Johnson berated him for not including the pickup dimensions for the hitch in the worksheet and subsequently handed him a warning letter regarding the matter;
• he became extremely distressed as Mr Johnson explained the reasons for the warning letter;
• when Messrs Johnson and Martinello left his office to attend to a client he contacted Ms Munro and begged her to come and help him, adding that she arrived some 25 minutes later and helped him down the stairs and into her car;
• when he received SCTM’s letter of 26 October 2018 he felt he was being unfairly attacked whilst in a vulnerable mental state;
• on 14 December 2018 he was still in an extremely distressed state, adding that he contacted his psychiatrist for assistance in helping to stop SCTM’s meeting requests; and
• SCTM did not provide sufficient particulars of the alleged misconduct or afford him the opportunity to properly respond prior to it deciding to terminate his employment.
[23] Key aspects of Mr Brown’s oral evidence included that:
• he had stored fishing and camping gear and some dissembled hydroponic equipment at the workplace, adding that he had Mr Rocco Papallo’s permission to do so and that the equipment was not being used for illegal purposes;
• in seeking permission to store the items he had not told Mr Papallo what he was intending to store at the workplace;
• he did not believe that any aspect of his conduct caused a serious and imminent risk to the health and safety of any person on the site;
• he could not attend the proposed meeting of 17 December 2018 with Mr Papallo as he could not deal with any emails from SCTM, adding that Ms Munro and Mr Wines took over his emails for a period of time;
• SCTM could have given him a bit more leeway to get better and respond;
• he was not capable of responding to the letter of 20 December 2018;
• he was charged with the cultivation of “a couple of marijuana plants” in his backyard in mid-March 2018, adding that at the time the police saw everything that he subsequently stored at the workplace;
• the equipment he had stored at the workplace could be used for the manufacture of illegal drugs;
• he did not say to Mr Papallo that he wanted to store some welding gear at the workplace;
• he wanted to store the material at the workplace because his home had been burgled, adding that he could not remember if he had told Mr Papallo that this was the reason for his request;
• he did not tell Mr Papallo that the police had been to his home and found the equipment or that he had been charged with a drug offence;
• he was not agitated when on 23 October 2018 he saw Mr Johnson in the room where he had stored his personal effects;
• Mr Johnson asked him to remove the equipment from the premises by Friday as he was not comfortable with it being on site, adding that he removed the majority of the equipment from the premises that night but left the dehydrator, hydroponic lamps and shelving;
• he was not dismissed on the basis of the warning letter given to him by Mr Johnson on 23 October 2018;
• he worked on his workers’ compensation claim statement over the period November 2018 to January 2019 with Ms Perez;
• he had not provided an explanation to Mr Papallo regarding the equipment stored at the workplace when requested to do so because he was in a position where he could not respond to anything;
• Mr Munro wrote the emails sent using his email address to Ms Markovski (SCTM’s Financial Controller) over the period 8-14 November 2018 10;
• he did not know that his job was at risk as a result of the materials he had stored at the workplace;
• Mr Wines helped him write his email of 4 January 2019 to Mr Rocco Papallo (see paragraph [17] above);
• his Worker’s injury claim form 11, which was filled out by Ms Munro and signed by him, included a mistake when it answered “No” to the question “[h]ave you previously had another injury condition or personal injury claim that relates to this injury condition?”;
• he was receiving workers’ compensation benefits of $1,270.73 per week; and
• some of the equipment stored at the workplace had been used at his house to propagate/cultivate marijuana seedlings, acknowledging that the hydroponic lights stored at the workplace had therefore arguably been used for an illegal purpose.
[24] Ms Munro stated in her witness statement 12 that on 23 October 2018 Mr Brown had a major panic attack, adding that she received a call from him around lunch time in which he said he needed help and asked her to come to his workplace. Ms Munro deposed that she arrived at the workplace around 25 minutes later and was subsequently able to arrange an emergency triage appointment for Mr Brown with a Dr Ghizala over the telephone. Ms Munro further deposed that:
• she received a text message from Mr Brown at 11:19pm on 23 October 2018 which resulted in her going to Mr Brown’s home and among other things contacting Mental Health Crisis for advice before getting Mr Brown to calm down and sleep;
• on 24 October 2018 she emailed SCTM, adding that Mr Brown was supplied with a medical certificate covering the period 25 October to 1 November 2018;
• on 14 November 2018 she emailed Suzanne [Markovski] regarding Mr Brown’s unpaid commissions; and
• also on 14 November 2018 Mr Brown had a serious panic attack while on the telephone to her causing her to contact 000 for assistance.
[25] Key aspects of Ms Munro’s oral evidence included that:
• when she arrived at the Queanbeyan site on 23 October 2018 Mr Brown was really struggling to breathe and appeared as though he were hyperventilating;
• she returned to the Queanbeyan site with Mr Brown at about 8:00pm that evening and left Mr Brown with a friend who met them there, adding that she did not enter the premises;
• on 24 October 2018 she emailed Mr Johnson asking what the process would be going forward;
• she had been involved in helping Mr Brown with his unpaid commissions among other things;
• she had sent emails on Mr Brown’s behalf using his email address, adding that she would normally sign off as Mr Brown if he had told her what to write but otherwise she would sign using her name;
• she was unable to confirm whether she had sent any of the emails Mr Brown sent to Ms Markovski over the period 8-14 November 2018 13; and
• she completed Mr Brown’s Worker’s injury claim form 14 based on instructions she took from Mr Brown.
[26] Among other things, Ms Perez deposed in her witness statement 15 that following the incident of 23 October 2018 Mr Brown was unable to perform any day-to-day tasks such as opening emails, responding to written correspondence, booking medical appointments, attending to household duties, shopping for household goods, looking after his child and attending to his personal hygiene.
[27] In her oral evidence Ms Perez attested that she assisted Mr Brown prepare his workers’ compensation statement 16, adding that Mr Brown would dictate the contents which she then typed up. Ms Perez also stated that the document took months to prepare, that Mr Brown completed the document, that Mr Brown submitted the document and that she was not sure whether she was present when the document was finally submitted. Ms Perez further attested that she did not write or send any of the emails Mr Brown sent to Ms Markovski over the period 8-14 November 201817 nor was she involved with any of the correspondence between Mr Brown and SCTM regarding Mr Papallo’s meeting requests.
[28] Dr Ali’s evidence included that:
• Mr Brown had been referred to him October 2018, adding that when he first saw him Mr Brown was very anxious and quite depressed with suicidal ideation and that his condition had not improved a lot since then;
• he wrote his letter of 15 December 2018 to Mr Rocco Papallo (see paragraph [15] above) after he received either an email or text message from Mr Brown asking him to do so;
• he wrote the letter because he did not want to see Mr Brown’s condition deteriorate as a result of attending the meeting with Mr Papallo and because he considered that even if Mr Brown participated by telephone it would be detrimental to his wellbeing;
• prior to writing the letter he last saw Mr Brown on 8 December 2018;
• at the time the question of how Mr Brown came to store the items on the premises would have been an easy question for Mr Brown to answer;
• he could not recall if Mr Brown advised him of Mr Rocco Papallo’s letter of 20 December 2018;
• Mr Brown would not have been able to respond to that letter on his own but would have been able to do so if he was getting assistance from family or friends; and
• he did not recall Mr Brown asking him after 15 December 2018 for a fitness certificate to attend a meeting with his employer.
The Respondent’s case
[29] In short, SCTM submitted that there was a valid reason for Mr Brown’s dismissal, that Mr Brown was notified of and afforded an opportunity to respond to that reason, that Mr Brown was not denied the opportunity to have a support person present when providing his response and that in the absence of Mr Brown’s response to its justifiable concern that he was engaged in the production of illegal drugs in the workplace that Mr Brown’s dismissal was justified. More specifically, SCTM submitted that:
• when Mr Johnson visited the Queanbeyan site on 23 October 2018 he located Mr Brown’s personal effects stored at the site, a number of which appeared to have been used for the production of illegal drugs;
• Mr Johnson took photographs of the items and reported the matter to the police, with the police visiting the site and identifying marijuana residue on a hydroponic lamp which was among Mr Brown’s effects;
• Mr Brown subsequently took a prolonged leave of absence from the workplace, adding that it issued Mr Brown with multiple notices advising of its intention to convene a disciplinary meeting to discuss the items which he had stored at the Queanbeyan site;
• Mr Brown responded to those notices that he was too unwell to attend such a meeting but did state that he had prepared a written response to its concerns;
• it never received Mr Brown’s written response; and
• in circumstances where Mr Brown had not provided any information to counter the evidence before it, it had no option but to accept that evidence and summarily dismiss Mr Brown for serious misconduct.
[30] SCTM in its closing submissions stated that Mr Brown’s dismissal was not harsh, unjust or unreasonable and that his application should be dismissed. Among other things, SCTM contended that Mr Brown stored drug apparatus at its Queanbeyan site without permission, that when he was found out Mr Brown sought to cover his tracks by removing some but not all of the items, that Mr Brown had no intention of meeting with it to answer its legitimate questions regarding his serious misconduct and that Mr Brown’s workers’ compensation statement provided no explanation at all as to his conduct. SCTM further contended that the Commission should have little difficulty in concluding that Mr Brown’s evidence could not be accepted unless corroborated. SCTM also submitted that Mr Brown’s impairment was not such that it precluded him from corresponding with it regarding his commission payments and his entitlement to sick and annual leave or from submitting his lengthy and detailed workers’ compensation statement. SCTM’s submissions regarding the considerations in s.387 of the Act are set out later in this decision. As to remedy, SCTM posited that reinstatement was obviously an inappropriate remedy in this case and that given the level of workers’ compensation payment which Mr Brown was receiving he had sustained no monetary loss whatsoever.
[31] Mr Rocco Papallo deposed in his witness statement 18 that Mr Johnson called him on 23 October 2018 and informed that while attending SCTM’s Queanbeyan site he had discovered a number of items of concern stored at the site and that Mr Brown had confirmed that the items were his. Mr Papallo also stated that Mr Johnson had said to him that he had taken photographs of the items, instructed Mr Brown to remove the items and that he would be referring the matter to the police, adding that the following day Mr Johnson forwarded him copies of the photographs he had taken. Mr Papallo further deposed that on 30 October 2018 Mr Johnson informed him that the police had attended the site and that the investigating officer [Senior Constable Knowles] had identified one of the photographed items as a pill cutter and another item which remained on the site as a hydroponic lamp which contained marijuana residue. Mr Papallo stated that as a result he sought to convene a meeting with Mr Brown to provide him with an opportunity to respond to his serious concerns regarding the items that had been stored at the premises. To that end, Mr Papallo listed the correspondence he sent to Mr Brown and the latter’s responses in terms consistent with paragraphs [12]-[18] above. Beyond that, Mr Papallo deposed that:
• in circumstances where Mr Brown had repeatedly refused to answer the allegations regarding his storage of questionable items in the workplace and had provided no evidence to counter his reasonable belief that he had engaged in serious misconduct by storing items which had been used for an unlawful purpose, he had no option but to summarily dismiss Mr Brown; and
• he was of the view that the storage of the items in the photographs gave rise to a very real risk of reputational harm to the business together with the risk that the residual contamination of the premises may cause physical harm to other employees and/or customers who visited the premises.
[32] Key aspects of Mr Rocco Papallo’s oral evidence included that:
• Mr Brown had asked him for permission to store welding equipment to do with his welding business at the Queanbeyan site;
• Mr Brown had never sought his permission to store fishing or camping equipment, hydroponic equipment or a home distillery set at the Queanbeyan site, adding that had he been asked for permission to store such items at the site he would have refused the request;
• a copy of Mr Brown’s workers’ compensation statement was provided to him on 22 January 2019 by a Mr/Ms Shannon Wade of Brooksight Investigations, adding that Mr Brown’s statement was false when it said that he had permission to store “substantial amounts of fishing and camping equipment … a home distillery set and some hydroponic equipment” 19 at the workplace;
• he did not await the statement referred to in Mr Brown’s email of 4 January 2019 (see paragraph [17] above) before terminating Mr Brown’s email for several reasons, including that he had no idea of when the statement would be provided;
• it was his decision to terminate Mr Brown’s employment, adding that in coming to that decision he took into account the material which Mr Brown stored on the premises and the lack of a response from Mr Brown to his inquiries as to why the material was stored and what it was for;
• his father, Mr Nick Papallo, advised him of his discussion in late November 2018 with Senior Constable Knowles, including that the Senior Constable had said that Mr Brown was known to the police and that the material he viewed on site was used for cultivating marijuana;
• Mr Brown was receiving workers’ compensation payments of approximately $1,200 per week;
• other than the issue of storing the material on the premises, there were no other issues which he caused to be raised with Mr Brown regarding his conduct;
• he had no issues with Mr Brown’s performance;
• he had no specific evidence of when Mr Brown was provided with a copy of SCTM’s employment pack;
• SCTM does not have a policy regarding the storage of personal items on site, nor does it have a policy regarding employees who have external drug convictions;
• while Mr Brown asked his permission to store some items on site, he had stored items other than those he had sought permission for;
• the material stored on site led him to believe that Mr Brown’s conduct was serious misconduct, later adding that he was concerned that drugs were being cultivated on the premises and what that could mean for him as a Director of SCTM;
• he was aware that the electricity bill for the Queanbeyan site had increased by 50% at the time, adding that this was no different to any other year for that site;
• he was not contending that Mr Brown was cultivating marijuana at the site as he could not make that assertion;
• before he decided to dismiss Mr Brown, he consulted SCTM’s external human resources consultant and the Motor Traders’ Association of NSW;
• subsequent to his letter of 15 December 2018 Dr Ali never provided him with a fitness certificate stating that Mr Brown was fit to attend a meeting with him; and
• with the benefit of hindsight, the conclusion that could be drawn from the increase in the electricity bill for the Queanbeyan site was that the items stored at the site by Mr Brown were in use.
[33] Mr Nick Papallo deposed inter alia that Senior Constable Knowles returned his call 20 in late November 2018 and informed him that:
• Mr Brown was known to the police because he had been convicted of a similar offence in mid-2018;
• the police had previously conducted searches of Mr Brown’s home;
• Mr Brown was also known to go by the alias of ‘Ashley Wells’; and
• he had referred the matter to the Australian Federal Police (AFP). 21
[34] Mr Papallo further deposed that he advised Mr Rocco Papallo of his discussion with Senior Constable Knowles.
[35] In his oral evidence, Mr Nick Papallo attested inter alia that:
• Mr Brown’s average net weekly pay over the period 1 July 2018 until his dismissal was $1,350 taking into account commissions and his retainer;
• as of 3 July 2019, Mr Brown’s Pre-Injury Average Weekly Earnings was calculated $1,270.73 per week by EML (SCTM’s workers’ compensation insurer); 22
• on 29 October 2018 Ms Markovski emailed him a copy of the electricity account for the Queanbeyan site for period 15 June to 13 September 2018 which showed a 40.46% increase over the same period in 2017 23, adding that at the time he did not think much of it because it was not a great amount but with hindsight it became relevant;
• on 3 July 2018 Ms Markovski had sent Mr Brown and email regarding electricity usage at the Queanbeyan site for the previous quarter which indicated that electricity usage had “gone up 55.5% on the same period last year” and asking whether he thought this was an error with the reading or as a result of greater usage, with Mr Brown responding that it was due to “a brutal couple of months weather wise” and him being in the office more; 24
• at the time he did not believe that there was any other reason beyond that stated by Mr Brown as to why the electricity bill had increased for that period;
• he did not make the decision to terminate Mr Brown’s employment, adding that the decision was made between himself, his two partners and Mr Rocco Papallo and that they also spoke with Mr Johnson;
• SCTM took advice from the Motor Traders’ Association of NSW and its insurers regarding the situation involving Mr Brown;
• Mr Brown was sent an employment pack in 2014 when SCTM bought the business, adding that the pack would have included a copy of SCTM’s bullying and intimidation policy;
• SCTM updated its policies and procedures 18 months ago, adding that Ms Markovski probably informed Mr Brown of that and that he was pretty sure Mr Brown had not signed and returned the updated policies; and
• as per his notes 25, Senior Constable Knowles advised him in late November 2018 when they spoke that Mr Brown had been charged with a drug related matter in the Australian Capital Territory.
[36] Mr Johnson deposed in his witness statement 26 that he attended the Queanbeyan site on 23 October 2018 and when he opened the door of bedroom one at the site he saw a large amount of chemicals, liquid fertiliser, a lot of stainless steel equipment with pressure gauges on them and a quantity of large lights usually used for growing hydroponic crops. Mr Johnson further deposed that the presence of the equipment caused him serious concern as he was, among other things, unsure what the items had been used for or if the site was being used for illegal activities. Mr Johnson stated that he took photographs of the items and that when Mr Brown confirmed the items were his he told him that he was suspicious of the equipment and asked him to have it removed by the end of the week. Copies of the photographs which Mr Johnson took were appended to his statement.27 In addition, Mr Johnson deposed that:
• when he returned to SCTM’s Sydney premises he discussed that matter with Mr Rocco Papallo and showed him the photographs he had taken, indicating that as the equipment could be related to illicit drugs it should be reported to the police;
• he met Senior Constable Knowles at the Queanbeyan site on 30 October 2018 and showed him the photographs of the equipment which he had taken the previous week and the items still on the premises, i.e. hydroponic lamps, the dehydrator unit and some other home-made ventilation type equipment; and
• Senior Constable Knowles asked him to provide him with copies of the photographs and advised him that the matter would be referred to the Drug Unit for further investigation.
[37] Mr Johnson’s oral evidence largely reiterated aspects of his witness statement. In his evidence-in-chief Mr Johnson was taken through the photographs annexed to his witness statement. 28 Beyond that, Mr Johnson attested among other things that:
• there were two purposes for his unannounced visit to the Queanbeyan site on 23 October 2018 – the first was to discuss with Mr Brown an issue that had occurred with a hydraulic hitch and the second was to see whether Mr Brown was actually at work as he was not using the timekeeping program on his computer;
• some of the photographs annexed to his witness statement were taken by SCTM mechanics who were at the site on 24 October 2018;
• Mr Brown looked uneasy, anxious and visibly shaken on 23 October 2018 when he greeted Mr Johnson in the room where his personal effects were stored;
• he could not recall any fishing or camping equipment stored on the premises;
• Mr Brown was very anxious when discussing the hydraulic hitch issue, adding that he kept saying the clients were lying;
• he did not call the police on 23 October 2018 because he wanted to get away from the premises as he did not feel comfortable;
• the leaf material he saw in the dehydrator on 30 October 2019 when Senior Constable Knowles attended the site looked to him like marijuana leaf;
• he was “pretty au fait” with hydroponic equipment as he had a farming background and had grown hydroponic tomatoes for Woolworths and Coles;
• the gardening chemicals which he saw on 23 October 2018 had all been removed from the premises when he returned to the site on 30 October 2018;
• during his visits to the Queanbeyan premises he could not see any cultivation going on at the site; and
• the hydraulic hitch issue cost the business more than $20,000 to fix.
Senior Constable Knowles’ evidence
[38] Senior Constable Knowles attested that he attended SCTM’s Queanbeyan site on the morning of 30 October 2018 in response to a call received from the company in relation to suspicious items that were located at the premises, adding that Mr Johnson was at the site but not Mr Brown. Senior Constable Knowles further attested that he was shown halogen lights, a dehydrator, numerous pots with gauges on them, what looked like a pump, various chemicals, different gardening chemicals and an exhaust pipe of some sort which was upstairs, adding that Mr Johnson also showed him about 20 photographs. When questioned about the photographs annexed to Mr Johnson’s witness statement 29 Senior Constable Knowles identified one item as a dehydrator which he stated was usually used to dry out cannabis leaves and buds, adding that there were remnants of cannabis or marijuana in the drawers in the dehydrator which he saw on the premises. As to the foil tube depicted in another of the photographs, Senior Constable Knowles stated that he believed that it was used as some sought of exhaust and that he had seen it at a number of hydroponic set-ups. Senior Constable Knowles also described the hydroponic lamps shown is in the photographs as used in hydroponic set-ups.
[39] Beyond that, key aspects of Senior Constable Knowles’ evidence included that:
• when he returned to the Queanbeyan Police Station he created an intelligence report regarding the matter, adding that he advised local detectives and “our” drug unit of the matter;
• he also contacted the AFP’s drug unit and emailed them the photographs provided to him by Mr Johnson;
• he had told Mr Johnson at the time that the items were highly suspicious and that checks had revealed that Mr Brown had been charged earlier that year for a matter in the ACT in relation to the cultivation of marijuana plants;
• he was aware that halogen lights may be used for other purposes, though in his experience they were used primarily for drug related activity;
• he did not have the cannabis remnants he discovered in the dehydrator laboratory tested;
• the foil ducting he saw could also be used for a wide variety of purposes other than the hydroponic growing of cannabis;
• he informed the AFP of the matter because in doing checks on Mr Brown he noticed that he had been charged earlier in the year for cultivation and as such he thought it would be a good idea to advise the officer in charge of that matter what had been located at the Queanbeyan premises;
• he was aware that Mr Brown had pleaded guilty to the abovementioned charge, with no conviction recorded and that Mr Brown had been given a good behaviour bond;
• he had the reasonable belief that the items he saw on 30 October 2018 had been used in the production of cannabis based on what he found and the smell in the dehydrator, adding that what he observed was consistent with the half a dozen hydroponic set-ups he had seen as part of his duties;
• Mr Brown had not been questioned by the police regarding the matter; and
• Mr Brown was not going to be charged regarding the matter as there was no offence detected at the time.
The Statutory framework
[40] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Brown is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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.”
[41] There is no dispute that Mr Brown was dismissed, so s.385(a) of the Act is satisfied. Mr Brown contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. SCTM is not a small business employer therefore s.385(c) is not relevant. The termination was not a case of redundancy so s.385(d) does not apply. Therefore, in determining whether Mr Brown was unfairly dismissed, I must consider whether his dismissal was harsh, unjust or unreasonable as per s.385(b) having regard to the considerations set out in s.387 of the Act.
Was the dismissal harsh, unjust or unreasonable?
Valid reason – s.387(a)
[42] SCTM must have a valid reason for Mr Brown’s dismissal. The reason should be “sound, defensible and well founded” 30 and should not be “capricious, fanciful, spiteful or prejudiced.”31
[43] Mr Brown contended that there was no valid reason for his dismissal as he had permission to store some of his personal effects at the workplace. Mr Brown also submitted that he had done nothing wrong and had never engaged in illegal conduct, adding that nothing justified the reasons for his dismissal particularly as there was nothing about his conduct which was going to bring SCTM in disrepute or cause it harm. Mr Brown further submitted that there was no evidence of any criminal activity on site and that he had not breached any company policies in storing the material on site. Mr Brown also highlighted that he removed the material when asked to do so by Mr Johnson.
[44] SCTM contended that there was a valid reason for Mr Brown’s dismissal, adding that its conclusion that Mr Brown was engaged in illegal activity referable to the manufacture of drugs in the workplace was supported by several factors including the drug related material stored at the workplace, Senior Constable Knowles’ discovery of cannabis residue on one of the items Mr Brown left at the site and Mr Brown’s repeated refusal to provide an explanation for the items found stored at the workplace. SCTM further submitted that Mr Brown did not have permission to store the items of concern at the workplace and had still not provided an explanation as to why those items were stored at the workplace. As to the absence of a policy regarding the storage of personal items at the workplace, SCTM posited that it was not necessary to have a policy which stated that employees should not bring drug related apparatus onto the property.
[45] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King) 32. In King the Full Bench, drawing on Moore J’s comments in Edwards v Guidice33, stated:
“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[46] In this case it is not disputed that Mr Brown stored personal effects at the Queanbeyan site which included items that Mr Brown attested could be used for the manufacture of illegal drugs and which, in respect of some items (the hydroponic lights), had been used to propagate/cultivate marijuana seedlings at Mr Brown’s residence. However, what is disputed is whether Mr Brown had permission to store those items at the site. Mr Brown contends that he had Mr Papallo’s approval to do so but attested that he did not tell Mr Papallo the nature of the items he wanted to store at the workplace. On the other hand, Mr Papallo’s evidence was that Mr Brown had asked him if he could store some welding gear at the workplace, that he agreed to that request and that had he known what Mr Brown proposed to store on site he would have refused. I prefer Mr Papallo’s evidence in this regard, primarily because Mr Brown’s evidence regarding the drug related items and his conviction was at best circumspect and at worst evasive. Further, I consider it disingenuous for Mr Brown to contend that he had approval to store the drug related items on the premises in circumstances where he never described those items to Mr Papallo in even the most modest of terms.
[47] As previously noted, the termination letter includes the following:
“As you have continued to refuse to respond to the allegations and you were the only employee working and with access to the Canberra branch at the time the Company became aware of the drug paraphernalia, the Company believes this conduct was substantiated and amounts to serious misconduct under regulation 1.07 of the Fair Work Regulations 2009 (Cth). In particular, the Company deems you:
• Engaged in wilful or deliberate behaviour that is inconsistent with the continuation of the employment contract; and
• Have refused to comply with a lawful and reasonable instruction.” 34
[48] With regard to the contention that Mr Brown engaged in wilful or deliberate behaviour that is inconsistent with the continuation of the employment contract, the evidence before that Commission indicates that:
• Mr Brown was the only SCTM employee working at the site on an ongoing basis;
• Mr Brown had been convicted of a drug related offence in 2018;
• Mr Brown had previously used some of the equipment stored at the workplace to cultivate/propagate marijuana seedlings at his home;
• Mr Brown did not advise Mr Papallo of the nature of the items he stored at the workplace or his abovementioned conviction;
• Senior Constable Knowles identified cannabis residue in the dehydrator left on site by Mr Brown and advised Mr Nick Papallo in late November 2018 that Mr Brown had been charged with a drug related matter in the ACT and that he had referred the matter to the AFP; and
• Mr Brown did not provide any explanation to SCTM regarding the items he stored at the workplace.
[49] Conversely, the evidence does not establish that any illegal activities were occurring at the Queanbeyan site. While the spike in electricity bills points to the possibility that the hydroponic equipment may have been in use a the site during the respective billing periods, in the absence of any probative evidence to that effect the bills are nothing more than circumstantial evidence.
[50] Given the factual matrix known to SCTM and in the absence of any explanation from Mr Brown, the Respondent understandably had concerns as to what was happening at the site and what it might mean for the business and its reputation. More importantly, the situation resulted in SCTM’s loss of trust and confidence in Mr Brown as a result of his lack of candour regarding the matter. Having drug related items stored at a workplace without an employer’s knowledge or approval would in my view set alarm bells ringing with even the most understanding employer. The absence of a policy about employees storing personal items on site in this case is not material in my view – one does not need to be Einstein to figure out that storing drug related material at the workplace without the approval of one’s employer is wrong. Further, Mr Brown’s previously mentioned evidence he had never received an employment contract from SCTM does not in my view excuse his conduct, not is it a material consideration in this case.
[51] In summary, the above analysis supports a finding that Mr Brown’s conduct in storing the drug related items at the Queanbeyan site without SCTM’s approval was in the circumstances inconsistent with the continuation of his employment contract because it resulted in SCTM no longer being able to trust him and because of legitimate concerns about the implications of Mr Brown’s conduct for the company’s reputation.
[52] As to whether Mr Brown failed to comply with a lawful and reasonable direction, this goes to Mr Brown’s failure to respond substantively to SCTM’s concerns as set out in Mr Papallo’s letters of 26 October and 14 and 20 December 2018. It was not asserted that the direction was not lawful. However, implicit in Mr Brown’s submissions was the contention that the direction was not reasonable given his health. On that issue, Dr Ali’s evidence included that:
• at the time he wrote his letter of 15 December 2018 the question of how Mr Brown came to store the items on the premises would have been an easy question for Mr Brown to answer; and
• Mr Brown would not have been able to respond to Mr Papallo’s letter of 20 December 2018 on his own but would have been able to do so if he was getting assistance from family or friends.
[53] Beyond that, the evidence on this issue indicates that:
• Mr Brown worked with Ms Perez over the period November 2018 to January 2019 to prepare his workers’ compensation statement;
• Mr Brown either sent emails himself or instructed Ms Munro to send emails to Ms Markovski in early to mid-November 2018 regarding matters such as his commission payments and leave entitlements;
• Mr Wines helped him write his email of 4 January 2019 to Mr Rocco Papallo; and
• Mr Brown submitted his workers’ compensation statement in mid-January 2019; and
• Mr Papallo received a copy of that statement from someone other than Mr Brown.
[54] I note also that Mr Papallo’s letter of 20 December 2018 invited Mr Brown to contact him before 4 January 2019 if he needed more time to prepare his response to the letter. Clearly, Mr Brown did not do so nor did his email of 4 January 2019 respond to the allegations set out in Mr Papallo’s letter. While Mr Brown’s email did indicate that his pending workers’ compensation statement should be considered as his response to Mr Papallo’s letter, the email did not provide any timeframe as to when the statement would be provided other than stating that a summary of the statement would be provided “in due course”.
[55] Taken together, these considerations support a finding that, in addition to being lawful, the Respondent’s direction was also reasonable. In coming to that conclusion, I attached considerable weight to Dr Ali’s abovementioned evidence.
[56] Taking all the above into account, I am on balance satisfied that there was a valid reason for Mr Brown’s dismissal related to his conduct. Further, I am satisfied that the reasons for Mr Brown’s dismissal were “sound, defensible and well founded” 35 and not “capricious, fanciful, spiteful or prejudiced.”36
Notification of the valid reason – s.387(b)
[57] Mr Brown acknowledged that he was informed of the “invalid” reason for his dismissal, describing the reasons for his dismissal as “fanciful”.
[58] SCTM submitted that Mr Brown was informed of the valid reason for his dismissal in Mr Rocco Papallo’s letters of 26 October and 14 and 20 December 2018. In summary, SCTM submitted that Mr Brown was notified of its justifiable concerns regarding his conduct, adding that it made no decision to terminate Mr Brown’s employment until after his response of 4 January 2019 in which he failed to explain his conduct for the third time.
[59] The Full Bench in Crozier v Palazzo Corporation (Crozier) 37 stated as follows in respect of the equivalent provisions to s.387(b) and (c) in the Workplace Relations Act 1996:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[60] Mr Papallo’s letters of 26 October and 14 December 2018 both allude to the issue of concern to SCTM and to a decision regarding Mr Brown’s ongoing employment. However, Mr Papallo’s letter of 20 December 2018 is much more specific in that it sets out the allegations of concern to SCTM, describes the allegations as potentially amounting to serious misconduct and foreshadows that the allegations may result in the termination of Mr Brown’s employment. That letter, particularly when read against the background of Mr Papallo’s earlier letters to Mr Brown, supports a finding that Mr Brown was notified of the valid reason for his dismissal prior to the termination of his employment.
Opportunity to respond related to the capacity or conduct of the person – s.387(c)
[61] Mr Brown acknowledged that he was given a range of opportunities to “atone” for his supposed misconduct, positing that when he did not do so he was subjected to more vindictive and threatening behaviour by the Respondent. Mr Brown described SCTM’s behaviour as particularly harsh in circumstances where it knew he was on sick leave and had lodged a workers’ compensation claim.
[62] SCTM submitted that it was clear that it afforded Mr Brown successive opportunities to respond to its concerns regarding his conduct, adding that Mr Brown chose not to do so.
[63] It is clear from Mr Papallo’s letters of 26 October and 14 and 20 December 2018 that Mr Brown was provided the opportunity to respond in respect of his conduct in storing “questionable material” (as described in Mr Papallo’s first two letters) at the workplace. I note also that across the three letters SCTM altered the means by which Mr Brown could respond, with the first letter proposing a meeting at the Queanbeyan site, the second letter proposing a meeting at the Respondent’s Smeaton Grange premises or a conference call and the third letter inviting a written response (presumably in deference to Dr Ali’s letter of 15 December 2018). One interpretation of this is that it was intended to accommodate Mr Brown’s personal circumstances.
[64] Having regard to the above, I am satisfied that Mr Brown was provided with the opportunity to respond to the reason related to his conduct. As such, this consideration does not point to his dismissal being unfair.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[65] Mr Brown did not address this consideration in his submissions.
[66] SCTM submitted that Mr Brown was informed of his right to attend the proposed meeting of 2 November and 17 December 2018 accompanied by a support person.
[67] Mr Rocco Papallo’s letters of 26 October and 14 December 2018 both stated that Mr Brown was entitled to bring a support person to the meetings proposed in this respective letters.
[68] Against that background, and in circumstances where there were no discussions relating to Mr Brown’s dismissal, I do not consider this factor a relevant consideration in this case.
Warnings regarding unsatisfactory performance – s.387(e)
[69] Mr Brown was dismissed for serious misconduct not unsatisfactory performance. Accordingly, this consideration is not relevant in this case.
Impact of the size of the employer on the procedures followed – s.387(f)
Absence of dedicated human resources management specialist/expertise on the procedures followed – s.387(g)
[70] Mr Brown did not address this consideration in his submissions.
[71] SCTM submitted among other things that as was evident from Mr Rocco Papallo’s letters to Mr Brown the investigation process was conducted in a timely and organised way manner and in a way that was respectful of and sensitive to Mr Brown’s personal circumstances. SCTM further submitted that the investigation process was conducted properly.
[72] I note that Messrs Rocco and Nick Papallo both gave evidence that the Respondent consulted the Motor Traders’ Association of NSW in dealing with the matter, with the former also attesting that he consulted SCTM’s external human resources consultant before he made the decision to dismiss Mr Brown.
[73] There is no material before that Commission which suggests that either SCTM’s size or that the absence of dedicated human resources management specialist/expertise impacted on the procedures followed in effecting Mr Brown’s dismissal. Accordingly, I consider these factors to be neutral considerations in this matter.
Other relevant matters – s.387(h)
[74] Mr Brown did not identify any other relevant matters in his submissions.
[75] SCTM submitted that the Commission should have regard to a number of other matters, including the information provided by Senior Constable Knowles to Mr Nick Papallo, Mr Brown’s demeanour and conduct on 23 October 2018, Mr Brown’s removal of much of the items stored on the site on 23 October 2018, Mr Brown’s persistent refusal to provide any explanation for his storage of drug related items at the workplace and the reliability of Mr Brown’s evidence. SCTM also contended that Mr Brown’s conduct in respect of these matters was consistent with his guilt.
[76] While I note SCTM’s submissions regarding this consideration, to the extent that the other matters identified above are relevant they have largely been taken into account in considering whether there was a valid reason for Mr Brown’s dismissal. Accordingly, I do not consider that there are any other relevant matters.
Conclusion
[77] Drawing on the above analysis, I find that there was a valid reason for Mr Brown’s dismissal, that Mr Brown was notified of the reason prior to his dismissal and given the opportunity to respond to that reason, that there are no other relevant matters and that the remaining criteria in s.387 of the Act are either neutral considerations or not relevant in this case.
[78] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd (Byrne) 38 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[79] Drawing on the language in Byrne I am not satisifed that Mr Brown’s dismissal was either harsh, unjust or unreasonable, particularly as I have determined that there was a valid reason for his dismissal. While it was clear from Mr Brown’s demeanour when giving evidence that he remains unwell, in circumstances where over the period late October 2018 until his dismissal he instructed Ms Munro, Ms Perez and Mr Wines in communications with SCTM regarding Mr Papallo’s letters, his commission payments and leave entitlements and his workers’ compensation statement, I have formed the view that could have responded to Mr Papallo’s letter of 20 December 2018 by explaining why he stored the drug related items at the workplace. As previously mentioned, I attached considerable weight to Dr Ali’s previously noted evidence in coming to that conclusion. Further, Mr Brown’s reliance on the approval Mr Papallo gave him to store some personal items at the workplace is entirely misplaced in circumstances where he gave no indication to Mr Papallo as to the nature of some of the items to be stored.
[80] Against that background and having considered all the criteria in s.387 of the Act, I find that Mr Brown’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.
Appearances:
N. Wines for the Applicant.
B. Heath for the Respondent.
Hearing Details:
Canberra
2019
21, 22 October and 13 December
Printed by authority of the Commonwealth Government Printer
<PR718694>
1 Form F3 – Employer response to unfair dismissal at Item 1.7
2 Mr Wines did not appear as a lawyer or paid agent
3 Exhibit 1 at Annexure AB12
4 Ibid
5 Exhibit 8 at Annexure RP6
6 Exhibit 1 at Annexure AB14
7 Ibid
8 Ibid at Annexure AB15
9 Exhibit 1
10 Exhibit 3
11 Exhibit 5
12 Exhibit 6
13 Exhibit 3
14 Exhibit 5
15 Exhibit 7
16 Exhibit 2
17 Exhibit 3
18 Exhibit 8
19 Exhibit 2
20 Mr Papallo deposed that he had contacted Senior Constable Knowles to obtain an event number regarding his investigation.
21 Exhibit 9
22 Exhibit 10
23 Exhibit 11
24 Exhibit 12
25 Exhibit 9 at Annexure NP2
26 Exhibit 13
27 Ibid at Annexure MJ1
28 Ibid
29 Ibid
30 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
31 Ibid
32 Print S4213
33 (1999) 169 ALR 89 at 92 per Moore J
34 Ibid at Annexure AB15
35 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
36 Ibid
37 (2000) 98 IR 137
38 Ibid
0
4
0