Benjamin Elliot v Australian Rail Track Corporation Ltd
[2019] FWC 3786
•31 MAY 2019
| [2019] FWC 3786 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Benjamin Elliot
v
Australian Rail Track Corporation Ltd
(U2019/1736)
DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 31 MAY 2019 |
Application for relief from unfair dismissal – dismissal harsh – compensation ordered.
[1] Mr Benjamin Elliot commenced employment with the Australian Rail Track Corporation Ltd (ARTC) on 13 January 2014. Mr Elliot’s initial position with ARTC was as a Network Controller. From March 2017, Mr Elliot was employed by ARTC in the position of Terminal Coordinator. In that position, Mr Elliot reported to Mr Anthony May, Train Transit Manager, who reported to Ms Jennifer Turner, Service Delivery Manager. Following interactions with Ms Turner on 18 December 2018, Mr Elliot was summarily dismissed by ARTC on 30 January 2019. Mr Elliot alleges that his dismissal was harsh, unjust and unreasonable. ARTC denies those allegations and contends that its dismissal of Mr Elliot was not in any way unfair.
[2] I decided that it was appropriate to hold a hearing rather than a determinative conference in this matter. In making that decision, I had regard to the views of the parties, together with the fact that a hearing would be the most effective and efficient way to resolve this matter. The hearing was held in Newcastle on 13 and 14 May 2019.
[3] Mr Elliot gave evidence at the hearing. Mr Elliot also tendered (without objection) witness statements made by Mr Brad Ewan, Network Controller, Mr Peter Martin, Network Controller, and Mr Shane Miners, Network Controller.
[4] Ms Turner and Mr May gave evidence at the hearing on behalf of ARTC. Witness statements made by Mr Brett Pennell, Human Resources Advisor, Mr Dave Peterson, Network Controller, and Mr John O’Hare were also tendered (without objection) by ARTC.
Initial matters for consideration
[5] There is no dispute between the parties, and I find on the evidence, that the initial matters set out in section 396 of the Fair Work Act 2009 (Cth) (Act) are, insofar as they are relevant, satisfied in this case.
Background
[6] On 4 June 2015, Mr Elliot was involved in a verbal altercation with his manager, Mr Dean McLeod. Mr Elliot accepts that as he left the office he turned to look Mr McLeod in the eyes and said “fuck you Dean!” As a result of this incident, ARTC provided Mr Elliot with a letter dated 29 June 2015 in the following terms:
“Dear Ben
I refer to my letter of 4 June 2015 regarding allegations about your behaviour on shift on 11 April 2015.
All mitigating circumstances have been taken into account including your written response received 19 June 2015 and your responses in our meeting on 25 June 2015. As a result of the investigation is the Corporation has decided to take no formal disciplinary action against you.
I would like to take the opportunity to remind you of your accountabilities under the ARTC Code of Conduct – Principles of Behaviour.
• Respect – All workers must be respectful and courteous in their communications with others.
• Integrity – All workers must undertake their duties and responsibilities with integrity.
• Reliability – all individuals must undertake their duties with professionalism and diligence in accordance with their contract of employment and position description.
ARTC requires employees to adhere to policies and procedures as well as the requirements of the Code of Conduct. Please be advised that any breaches of ARTC policy or procedure may lead to disciplinary action up to and/or including termination of your employment with ARTC. This correspondence will be stored on your employee file as a record of this action.
Should you have any questions please contact me.
Yours sincerely
Jennifer Turner
Operations Superintendent
Hunter Valley”
[7] At 6:01pm on 16 October 2017, Mr Elliot arrived at the Terminal Coordinators Desk for a handover with a work colleague, Mr Paul Debono. Mr Debono raised an issue about Mr Elliot turning up late. Mr Elliot responded by saying “pick up your gear and go, I don’t need your attitude”. Mr Elliot and Mr Debono then went to the Train Transit Manager’s office and continued their argument before him. During that argument Mr Elliot said to Mr Debono “if you want we can go down stairs and sort it if you like”. Mr Elliot alleges Mr Debono pointed at him and told him to “fuck off”, at which point Mr Elliot said to Mr Debono “I’ll put you in an ambulance cunt”. Following this exchange, Mr Debono said he did not want to make a complaint against Mr Elliot. Mr Debono and Mr Elliot then shook hands and Mr Elliot returned to undertake his job.
[8] On 28 December 2017, Mr Elliot was provided with a first and final written warning by ARTC in relation to his conduct on 16 October 2017. That letter provides:
“… Your behaviour in the workplace on 16 October 2017 was inappropriate as you behaved in an aggressive and threatening manner towards Mr Debono.
I am disappointed and very concerned by your actions and behaviour. Your conduct identified above is unacceptable. The behaviours you have demonstrated constitute a serious breach of ARTC’s Code of Conduct. Based on the information provided, the investigation has found that you breached ARTC’s Code of Conduct specifically in respect to the Principles of Behaviour, Respect, Integrity and Reliability and Harassment.
Clause 2: Principles of Behaviour, including:
Respect – All workers must be respectful and courteous in their communications with others.
Integrity – All workers must undertake their duties and responsibilities with integrity.
Reliability – All individuals must undertake their duties with professionalism and diligence in accordance with their contract of employment and position description.
Clause 3: Harassment, Bullying and Discrimination
• ARTC is committed to ensuring positive working relationships. Harassment, bullying and/or discrimination will not be tolerated. Harassment, bullying and discrimination is unacceptable behaviour between workers whether this occurs at work or out of work.
On this occasion the Corporation has decided to issue you with a First and Final written warning in accordance with the ARTC Discipline procedure. Please be advised that any future breaches of ARTC policy or procedure may lead to further disciplinary action up/to and including termination of your employment with ARTC this correspondence will be stored in your employee file as a record of this action.
Performance Management Plan
To reflect the seriousness of this matter, I have decided to put you on a Performance Management Plan for a period of twelve (12) months to assist you to take responsibility for your own actions and meet the requirements of your role. We will schedule fortnightly meetings to discuss your ongoing performance and behaviours.
It is expected you will adhere to the following under this plan:
• Attend and actively participate in a personal behaviour training course is arranged by ARTC
• Demonstrate the ability to receive and supply and effective handover
• Display behaviours as expected and agreed by the Terminal Coordinator team:
• Respect each other
• Stand by each other’s decisions
• Communicate clearly
• Be flexible and civil
• Be safety focused at all times
• Provide support and show loyalty to each other
• Display behaviours conducive of a professional workplace
• Keep things in perspective despite frustration
• Behave in a way that is productive
• Avoid situations/activities that could compromise your own integrity
• Be polite, helpful and considerate of fellow employees, and co-operating as part of a team
• Treat all persons with dignity and respect
• Remain calm, keep feelings and emotions in check
• Continue to perform effectively in difficult circumstances
• Display an acceptable level of communication when dealing with others
• Contribute to achieve the required team output for each shift
• Work within all ARTC policies, procedures and standards
Failure to Comply with Plan
This plan has been developed with the aim of providing you with clear performance and behavioural expectations in accordance with your role. You must advise me if you experienced difficulty in meeting the expectations of this Plan. Should you fail to meet this plan, or breach any of the expectations outlined above, a formal review of your performance will occur. This review may result in further disciplinary action which will be viewed seriously in the termination of your employment may result.
You will also be required to attend and participate in additional training around personal behaviours.
Please sign this letter below as acknowledgement that you have received a copy….”
[9] Mr Elliot signed the letter dated 28 December 2017 to confirm that he had read and acknowledged the content of the letter.
[10] Mr Elliot participated in the personal behaviour training foreshadowed in the letter dated 28 December 2017.
[11] There is no suggestion that Mr Elliot failed to comply with the performance management plan or otherwise acted inappropriately at any time after receiving the first and final written warning, save for in relation to the events which took place on and leading up to 18 December 2018. I will now turn to address those events.
Relevant events leading to Mr Elliot’s dismissal
[12] I accept Mr May’s evidence that in about November 2018 he observed Mr Elliot looking upset in the workplace. When Mr May asked Mr Elliot what was wrong, Mr Elliot told Mr May that he was not getting a bonus.
[13] On 13 December 2018, Ms Turner sent a meeting invitation to Mr Elliot and other ARTC employees in relation to their participation in a risk assessment meeting planned for 18 December 2018. The risk assessment meeting related to a proposal by Ms Turner to amend ARTC Operations Procedure OPE-PR-012 to, amongst other things, exclude personal mobile phones being permitted within the confines of the Network Control (NC) board workstation areas.
[14] At 4:14pm on 16 December 2018, Mr Elliot sent an email in the following terms to Ms Turner (cc to 6 other ARTC employees as well as the members of the Network Control Centre North (NCCN) Work Health and Safety (WHS) Committee):
“Hi Jennifer,
Could you please clarify how we can be at risk management level before all consultation has been presented and discussed?
The WHS Committee was not engaged sufficiently at the WHSC meeting for consultation to be fully addressed. My recollection of events were whilst the meeting was concluding a question around item 10 on the agenda was jumped to, were [sic] further review of workplace risk and hazard this track and is was raised before meeting ended there was certainly no volume in consultation feedback on this safety matter.
Additionally please note the review of the documents directly by WHS committee has also not been requested only information on the proposed change was requested, your initial email did not request procedural feedback these changes in working arrangements need to be thoroughly consulted as worker wellbeing is affected.
I was also of the understanding a combined risk assessment involving NCCS and NCCW was to be conducted as the roll out was business wide, is this still the case?
Appreciate your time.
Regards
Ben”
[15] At 4:26pm on 16 December 2018, Mr Elliot sent an email to Ms Turner in relation to his performance bonus:
“Hi Jennifer
Could you please advise had outcome of why and how I did not receive a bonus this year please, my last discussion with yourself and Jarred was that you were in discussions with HR and Jonathan and Vandervoort and you would get back to myself at the same time as some other colleagues issues were clarified.
It has been over six weeks since the discussion and I would like some feedback.”
[16] At 4:54pm on 16 December 2018, Ms Turner responded to Mr Elliot’s email sent at 4:14pm concerning the risk assessment in connection with the proposal to exclude personal mobile phones being permitted within the confines of the NC board workstation areas:
“Good Afternoon Ben,
The risk assessment that you, Alex and Tim Shiels are attending on Tuesday is a joint risk assessment with representatives from NCCS and NCCW and will be conducted via skype.
As for the basis of the risk assessment, when discussed at the Committee meeting, the action was for me to send out all of the documents associated with the change (sent 25/9) and for the WHS Committee to discuss with their team members and provide feedback on the change and the documents. If this wasn’t clear in the email I will take that on-board for next time. However I received feedback from teams 4, 1, 2 and only an individual email back from you to your team, and much of it covered the documents as well as the change. This feedback has been provided to the convenor of the risk assessment Mitch Sweeney, to be considered for the risk assessment workshop.
If after the risk assessment there are changes to any of the supporting documentation these will be provided to all for further review and feedback. If they remain the same, they will again be provided to all prior to any of the changes coming into effect. As with any process, procedure and policies, these are reviewed frequently and people can provide feedback at any stage.
Regards,
Jennifer Turner”
[17] At 5:03pm on 16 December 2018, Ms Turner responded to Mr Elliot’s email sent at 4:26pm concerning his performance bonus:
“Hi Ben
I can confirm that you will not receive a bonus this year due to the disciplinary action undertaken in the performance review period, which is in line with the ARTC Performance Bonus Procedure. This was only confirmed late last week by HR advising that Jonathon had made his final decision and as such the bonus outcomes will remain as is. I am in the process of advising all affected team members and was hoping to do this face to face, however did not manage to catch you Thursday after I received the advice.”
[18] At 5:23pm on 16 December 2018, Mr Elliot responded to Ms Turner’s email sent at 4:54pm concerning the risk assessment:
“Hi Jennifer,
I’m sorry I feel your response is quite aggressive.
Thanks for such a prompt response, just clarifying I attend the WHS Committee as the HSR I am not a team representative I engage for awareness of the WHS programs and initiatives. I’m raising concern that consultation not of [sic] been met as the minutes you have provided was not the consultation event as it was tabled in the last meeting for consultation discussion and didn’t quite get there, although it made mention there was a review or change noted in general discussion in Aug meeting.
I would debate that an email does not constitute reasonable attempt for consultation for best practice and WHS Committee is the function that represents the workgroup and requires consultation not source feedback.
Just ensuring I have a clear understanding how we got to the posted meeting really.
Appreciate your time
Regards
Ben”
[19] I do not accept that Ms Turner’s email sent to Mr Elliot and others at 4:54pm on 16 December 2018 was in any way aggressive. It was responsive to the issues raised by Mr Elliot, but did not single Mr Elliot out or criticise him. It was sent to the same recipients as Mr Elliot’s earlier email sent to Ms Turner at 4:14pm on 16 December 2018. The tone of Ms Turner’s email was appropriate, as was the substance of the response she made to the issues raised by Mr Elliot. Ms Turner expressed in her email a willingness to take “on board for next time” Mr Elliot’s concern about the clarity of one of her prior communications. Further, Ms Turner made clear in the final paragraph of her email sent to Mr Elliot and others at 4:54pm on 16 December 2018 that she was open to the possibility of changes being made to the supporting documents after the risk assessment and would accept feedback at any stage.
[20] I am satisfied that by the time he sent his email response to Ms Turner at 5:23pm on 16 December 2018, Mr Elliot was upset with Ms Turner. I find that he was upset with Ms Turner for two reasons. First, Ms Turner had confirmed to Mr Elliot at 5:03pm on 16 December 2018 that he would not be receiving a performance bonus for 2018. On the basis of Mr May’s discussion with Mr Elliot in about November 2018 set out in paragraph [12] above, I am satisfied that Mr Elliot was upset at that time that he would not be getting a performance bonus. It is only natural that Mr Elliot either became upset about that matter again, or remained upset, on 16 December 2018 when Ms Turner confirmed he would not be receiving a performance bonus. Secondly, I accept that Mr Elliot was genuinely upset about what he perceived to be a lack of consultation in relation to the proposal by Ms Turner to exclude personal mobile phones being permitted within the confines of the NC board workstation areas.
[21] Mr Elliot’s feelings of upset towards Ms Turner manifested themselves in the workplace on 18 December 2018. On that day, Mr Elliot was informed in a text message that the risk assessment scheduled to take place at 1pm in relation the use of mobile phones within the confines of the NC board workstation areas had been cancelled. Mr Elliot was concerned and anxious that Ms Turner would blame him for the cancellation. I accept Ms Turner’s evidence that the cancellation of the risk assessment workshop had nothing to do with Mr Elliot; it was cancelled because representatives of Network Control Centre South (NCCS) were not ready to participate in the workshop. 1 Mr Elliot was also concerned that Ms Turner would try and engage with him about the cancellation of the risk assessment workshop. Mr Elliot accepts that he spent the first five hours or so of his shift on 18 December 2018 avoiding Ms Turner. Mr Elliot stated in his contemporaneous email sent to the RTBU on 18 December 2018, “I didn’t feel the need or want to be informally approached” by Ms Turner.2
[22] Ms Turner wanted to speak to Mr Elliot on 18 December 2018. Two days earlier she had received an email from Mr Elliot in which he accused her earlier response as being “quite aggressive”. Having re-read her response, Ms Turner could not understand why Mr Elliot believed it was “quite aggressive”. Further, given that the email communications between Ms Turner and Mr Elliot had not resolved Mr Elliot’s concerns about consultation and his role as a Health and Safety Representative (HSR), Ms Turner wanted to speak to Mr Elliot in person about those matters. In my view, it was entirely reasonable for Ms Turner to speak to Mr Elliot about those issues. Mr Elliot had sufficient time available during his shift on 18 December 2018 to speak to Ms Turner.
[23] After commencing work at 2pm on 18 December 2018, Mr Elliot undertook a terminal inspection and, at about 6:30pm, returned to the Operations Centre where he and Ms Turner were based. Mr Elliot continued trying to avoid Ms Turner by having something to eat and then walking to the other end of the Operations Centre at about 7pm to speak with Mr Peterson. It was there that Ms Turner eventually managed to find Mr Elliot.
[24] After Ms Turner found Mr Elliot on 18 December 2018, two discussions in the workplace took place. There is some dispute between Mr Elliot and Ms Turner as to what was said in their two discussions. My findings, on the balance of probabilities, as to what was said and done in the two discussions between Mr Elliot and Ms Turner in the workplace on 18 December 2018 are set out in paragraphs [25] to [37] below. I have made these findings having considered the oral evidence given by Mr Elliot, Ms Turner and Mr May, together with the documentary evidence contained in the 221 page court book relied on by the parties. In making these findings, I have placed greater weight on the contemporaneous notes made by Ms Turner, 3 Mr Elliot4 and Mr May,5 together with the unchallenged witness statements made by Mr Ewan, Mr Martin, Mr Myers, Mr Peterson and Mr O’Hare, than the contested parts of the witness statements made by Ms Turner and Mr Elliot in April and May 2019 and the oral evidence given by them at the hearing in May 2019, many months after the discussions took place.
[25] In their first discussion on 18 December 2018, Ms Turner told Mr Elliot that she wanted to speak to him about his email in relation to the risk assessment and his role as a HSR. 6 Ms Turner stated that as a HSR, Mr Elliot was part of the WHS committee and he could provide feedback as a representative of employees.7 Mr Elliot disagreed that he was part of the WHS Committee. Ms Turner said that under the WHS Committee Charter the HSR was part of the WHS Committee.8 Mr Elliot said that under the WHS Act he did not have to be part of the WHS Committee.9 Ms Turner said that as an employee of ARTC, Mr Elliot was bound to comply with ARTC policies and procedures.10 Mr Elliot then became animated. Ms Turner contends that he said “I don’t give a shit about what ARTC policies state” and that his tone was condescending. Mr Elliot contends that he said “ARTC policies mean shit against the WHS Act in relation to HSRs and consultation” and denies that his tone was condescending. Mr Peterson recalls Mr Elliot saying “ARTC HRSR policies mean shit, I abide by Comcare”. Mr O’Hare recalls Mr Elliot saying something along the lines of “Doesn’t mean shit”. Given the similarities between the unchallenged evidence given by Mr Peterson and Mr O’Hare and the evidence given by Mr Elliot, I find that Mr Elliot said to Ms Turner “ARTC policies mean shit against the WHS Act in relation to HSRs and consultation” It follows that Mr Elliot swore when speaking to Ms Turner, but did not swear at her. Given that the phrase “ARTC policies mean shit against the WHS Act in relation to HSRs and consultation” is of itself condescending, I am satisfied that Mr Elliot used a condescending tone when he swore.
[26] Ms Turner took offence to that comment made by Mr Elliot and told him she did not appreciate the language he was using. 11 I accept Ms Turner’s oral evidence that following an investigation into bullying in the workplace some time ago, she has taken a strong stance against swearing at ARTC. Ms Turner’s practice is to reprimand any employee who swears in the workplace. Ms Turner acted in a manner consistent with that practice in relation to Mr Elliot’s use of the word “shit” on 18 December 2018.
[27] Ms Turner contends that Mr Elliot apologised in a sarcastic tone of voice, saying “sorry I said the s-word”. Mr Elliot accepts that he apologised, but says his apology was sincere and denies using a sarcastic tone of voice. Mr Peterson recalls that Mr Elliot said: “What you take offence to the S word. I apologise for saying the S word”. This evidence is inconsistent with Mr Elliot’s evidence that his apology was sincere and supports Ms Turner’s contention that Mr Elliot apologised in a sarcastic tone of voice. I find that he did apologise to Ms Turner is a sarcastic tone.
[28] Following Mr Elliot’s apology for swearing, Ms Turner reiterated that Mr Elliot was bound to comply with ARTC policies and procedures. 12 Mr Elliot said he found Ms Turner and her emails aggressive, he was avoiding her because she was obstructive and would not give him the information he wanted, and he would not talk to her about the issues at that time.13 Mr Elliot said he was getting agitated.14 Ms Turner continued to speak about the role of a HSR in the context of consultation.15 Mr Elliot then said it was not the right place to discuss the matter, particularly when Mr Dave Peterson was on a work call.16 Mr Elliot walked away from Ms Elliot towards his work station, and then received a work call.17
[29] I accept Mr Peterson’s evidence that there were no raised voices in the first discussion between Mr Elliot and Ms Turner on 18 December 2018. 18
[30] Mr Elliot contends that Ms Turner spoke to him again on 18 December 2018 after he had received a work call, but before Mr May was present. Mr Elliot contends that he told Ms Turner to leave him alone. Mr Elliot’s evidence in that regard is supported by the witness statement of Mr Miners. 19 However, I do not accept that Mr Elliot and Ms Turner had an additional discussion between their first discussion (in the presence of Mr Peterson and Mr O’Hare) and their second discussion (in the presence of Mr May), for the following reasons. First, Mr Elliot says in his witness statement in chief that he was on the phone at his workstation for some time and when he finished the call he turned around and saw Ms Turner, at which time they had a discussion and he told her to leave him alone.20 Mr Elliot says he then walked towards his cubicle.21 However, according to his own evidence, he was already at his workstation when he saw and spoke to Ms Turner.22 Secondly, Mr Elliot stated in his contemporaneous email that he could not recall what Ms Turner said in this conversation.23 Thirdly, the contemporaneous notes made by Ms Turner and Mr May support Ms Turner’s version of events insofar as she says she had conversations with other employees, including Mr May, immediately before Ms Turner and Mr May went together to speak to Mr Elliot.24 This is inconsistent with Mr Miners’ statement that Mr Elliot asked Ms Turner to leave him alone, at which time Ms Turner “walked away and got the Train Transit Manager, Anthony May to come out from his office”.25
[31] After her first discussion with Mr Elliot on 18 December 2018, Ms Turner spoke to other employees about operational matters. 26 One of the employees to whom Ms Turner spoke was Mr Elliot’s manager, Mr May. Ms Turner asked Mr May to go with her to speak to Mr Elliot at his desk.27 They did so. Mr Elliot was sitting down at his desk. Ms Turner and Mr May stood to one side of Mr Elliot’s work area.
[32] Ms Turner spoke about the fact that Mr Elliot was bound to comply with ARTC policies and procedures and she did not appreciate the language he used earlier. 28 Mr Elliot said that he had not sworn at Ms Turner; he said the ARTC policies don’t mean shit and he works to the WHS Act.29 Mr Elliot said that Ms Turner was agitating him.30 Ms Turner apologised about Mr Elliot getting upset.31 I accept that Ms Turner wanted to arrange another time to meet with Mr Elliot, but he would not let Ms Turner speak.32 Mr Elliot repeatedly told Ms Turner that he did not wish to discuss the matter and wanted to be left alone.33 Mr May said to Mr Elliot that Ms Turner had the right to ask an employee questions.34 Mr Elliot said he did not want to talk to Ms Turner.35 Mr Elliot then said to Mr May words to the effect: “Boss, you are going to have to get someone to cover for me. I’m stressed. I’m going home.”36
[33] I do not accept that Mr Elliot pointed his index finger at Ms Turner during this discussion. Mr Elliot denies Ms Turner’s contention that he did so. There is no suggestion in Mr May’s evidence that he observed any such conduct on Mr Elliot’s part.
[34] I accept Mr May’s evidence, about which he was adamant, that as Mr Elliot walked off towards the kitchen area, he muttered the word “fuck” loud enough for Mr May to hear. 37 There is no suggestion in the evidence that Ms Turner heard this.
[35] I also accept Mr May’s evidence that in the second discussion between Mr Elliot and Ms Turner on 18 December 2018, at which Mr May was present, (a) the volume of Mr Elliot’s voice was only loud at the end of the discussion, but was not unprofessional, (b) the tone of Mr Elliot’s voice was only angry towards the end of the discussion, but was not unprofessional, (c) Mr Elliot’s demeanour throughout the conversation was “worked up”, 38 and (d) Ms Turner’s voice was calm throughout the discussion.
[36] Mr May expressed the following views in his contemporaneous note made on the night of 18 December 2018: 39
“… at no time during all this do I believe that Jen [Turner] has done anything wrong or outside company policies or procedures. I believe Jen’s actions do in no way constitute bullying, harassment or provoking towards Ben [Elliot].
Ben had obviously had it in his mind that there was no way he was going to converse with Jen on that shift and went out of his way to avoid Jen, this to me was all premeditated and as such very childish behaviour.
As adults we should all be able to sit down and discuss issues without harassment or provocation. Ben should of [sic] been able to articulate to Jen that today wasn’t a good time to talk and offer an alternative which he did not and just shut Jen down/out.”
[37] After leaving his workstation, Mr Elliot spoke to his RTBU representative by telephone on the balcony at work. Following that discussion, Mr May asked if Mr Elliot was okay and he said no, he wanted to talk to ARTC’s Employee Assistance Program (EAP), and he did not believe he could perform safety tasks. 40 Mr Elliot spoke to EAP by telephone. Mr Elliot then spoke to Mr May about providing relief for him for the balance of his shift because he did not feel well enough to perform his role. Mr Elliot completed a handover and left the workplace.41
[38] On 19 December 2018, Mr Elliot went to a medical centre and then called Mr Tim Shiels, Train Transit Manager, to inform him that he would not be coming in to work on that day because he was unwell. Mr Elliot subsequently provided ARTC with a medical certificate from his treating doctor in respect of his absence from work on 19 December 2018.
[39] On 24 December 2018, Mr Elliot was provided with a letter of allegations by ARTC. Mr Elliot was stood down on pay and required to respond to the allegations by 28 December 2018. Relevantly, the letter of allegations states:
“…Allegation 1
At approximately 7.10pm you were sitting at the Coast B control board with David Peterson when Jennifer Turner approached you both to discuss feedback from the LCC. Jennifer Turner then turned the conversation to the recent emails between yourselves regarding WHS consultation and of a HSR and how that role fits in within the NCCN WHS committee in ARTC.
It is alleged that during this conversation you appeared agitated and said words to the effect:
“I don’t give a shit what the ARTC policies state”
Jennifer Turner then advised you that she didn’t appreciate the language you had used and again attempted to explain your obligations as an ARTC employee.
It is alleged you then the stated words to the effect, “This is why I have been avoiding you as I find you and your emails aggressive. I have been avoiding you all afternoon because you are obstructive and don’t give me the information I have requested.”
It is alleged you then walked off toward the Terminal Coordinator Board and took a work call.
Allegation 2
Approximately five to ten minutes after the previous incident could Jennifer Turner approached you in the company of Tony May your Train Transit Manager.
During this interaction you stated words to the effect; “You are getting me agitated and you need to go away and not talk to me.”
It is alleged that your demeanour and tone of voice was aggressive and loud which caused Tony May to interject and advise you that Jennifer Turner had the right as your manager to talk to you.
Jennifer Turner attempted to explain that it was not her intention to cause you to get agitated but that you needed to comply with ARTC policies and procedures and that the language you had used previously was inappropriate and she didn’t appreciate being sworn at.
It is alleged that you continued to behave in an agitated state and replied; “Oh, I said the shit word, I said I didn’t give a shit about ARTC policies, I didn’t swear at you”
Jennifer Turner continue to try and apologise for you getting upset but your voice became louder and, you said words to the effect “Stop talking to me, this is why I have been avoiding you, I don’t want to get into conflict.”
You then stood up and said to Tony May words to the effect, “Boss you are going to have to get someone to cover me as I am leaving as I am stressed.”
…
ARTC considers the alleged behaviour as a breach of the ARTC Code of Conduct, specifically Principles of Behaviour. In accordance with the Just and Fair Policy we are now seeking a formal response from you responding to the allegations in outlying reasons why ARTC should not pursue further disciplinary action, up to and including termination of your employment…”
[40] The RTBU arranged for an extension to be given for Mr Elliot to respond to the allegations, with the result that Mr Elliot submitted his response by letter dated 7 January 2019.
[41] On 14 January 2019, Mr Elliot attended a meeting, together with his RTBU representative, with ARTC to discuss his response to the allegations. During the meeting, Mr Elliot’s RTBU representative informed ARTC that Mr Elliot considered Ms Turner had bullied and harassed him in the lead up to and on 18 December 2018, and he was going to, or may, lodge a formal complaint against her. 42 By letter dated 29 January 2019, the RTBU lodged a formal complaint, on Mr Elliot’s behalf, against Ms Turner. That letter was not sent to ARTC until 11pm on 30 January 2019. It contains serious allegations against Ms Turner. On the basis of the very limited evidence adduced in these proceedings about those matters, I am satisfied that Ms Turner did not engage in any bullying or other inappropriate conduct towards Mr Elliot.
[42] At 11am on 30 January 2019, ARTC notified Mr Elliot of its decision to terminate his employment and provided him with a letter of termination. This occurred at a face to face meeting with Mr Elliot and his RTBU representative. Relevantly, the letter of termination states:
“As you are aware ARTC has been investigating alleged misconduct involving you as outlined in correspondence to you on 24 December 2018.
I wish to advise that the investigation has concluded and an outcome has been determined. All relevant information and mitigating circumstances have been taken into account, including your written response, which was received on 7 January 2019.
Allegation 1 – Substantiated
Allegation 2 – Substantiated
Allegation 3 – Not Substantiated
Allegation 4 – Substantiated with no further action recommended
The above substantiated allegations represent significant breaches of ARTC’s Code of Conduct in particular Part 2 – Principles of Behaviour and Part 3 – Harassment, Bullying and Discrimination.
ARTC has formed the view that your actions above amount to serious misconduct.
Having regard to the serious misconduct and taking into account that you have received a First and Final Written Warning for similar behaviour, ARTC has decided to terminate your employment immediately, without notice, effective Wednesday, 30 January 2019…”
Was the dismissal harsh, unjust or unreasonable?
[43] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Elliot’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
Legal principles
[44] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 43 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”44 and should not be “capricious, fanciful, spiteful or prejudiced.”45
[45] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 46 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).47
[46] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.48 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 49 In cases where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.50
[47] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post as follows: 51
“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
Findings re valid reason
[48] ARTC contends that Mr Elliot’s conduct in December 2018, considered in the context of two earlier serious incidents in 2015 and 2017 respectively, provided ARTC with a valid reason for his dismissal. The conduct in December 2018 on which ARTC relies may be summarised as follows:
(a) Mr Elliot avoided Ms Turner on 18 December 2018 in circumstances where Mr Elliot believed that Ms Turner wanted to speak to him and the matters Ms Turner wanted to discuss were, on any objective measure, ordinary matters;
(b) Mr Elliot used the word “shit” when speaking about ARTC’s policies in his first discussion with Ms Turner on 18 December 2018;
(c) Mr Elliot apologised sarcastically for using the word “shit”;
(d) Mr Elliot refused to let Ms Turner speak and spoke over the top of her at various points in their discussions on 18 December 2018;
(e) Mr Elliot’s attitude during his conversations with Ms Turner on 18 December 2018 was dismissive and his tone was condescending;
(f) Mr Elliot walked away from Ms Turner during both of their discussions on 18 December 2018;
(g) Mr Elliot swore when leaving his second discussion with Ms Turner on 18 December 2018; and
(h) Throughout the investigation process Mr Elliot made spurious and improper allegations against Ms Turner.
[49] For the reasons set out in paragraphs [24] to [38] above, I am satisfied that Mr Elliot engaged in the conduct described in subparagraphs [48(a) to (d) and (f) to (h)]. As to the conduct described in subparagraph [48(e)], I am satisfied that Mr Elliot was dismissive of ARTC policies and spoke in a condescending tone when he said to Ms Turner “ARTC policies mean shit against the WHS Act in relation to HSRs and consultation”, but not otherwise.
Conclusion re valid reason
[50] After saying “fuck you” to his manager in 2015, Mr Elliot was reminded in writing of his obligations and accountabilities under ARTC’s Code of Conduct, including being respectful and courteous in his communications with others and undertaking his duties with professionalism. During an argument with a colleague on 16 October 2017, Mr Elliot suggested they should take the matter “down stairs and sort it” and then threatened to put his colleague in an ambulance. Mr Elliot was given a first and final written warning for engaging in that conduct and was reminded, again, of his obligations under ARTC’s Code of Conduct. Further, Mr Elliot was put on a 12 month performance management plan, which required him to undertake a personal behaviour training course and adhere to particular behavioural requirements. Notwithstanding Mr Elliot’s disciplinary history and the explicit warning given to him, on 18 December 2018 (within the 12 month period of the performance management plan) Mr Elliot once again failed to conduct himself in a respectful and courteous manner and contravened the performance management plan by engaging in the conduct summarised in paragraph [48] above. As a result and in light of the context to which I have referred, ARTC had a sound, defensible and well-founded reason for Mr Elliot’s dismissal.
Was Mr Elliot notified of the reasons for his dismissal and given an opportunity to respond (s 387(b)&(c))?
[51] It is necessary to consider and take into account whether Mr Elliot was notified of any valid reason(s) for his dismissal and whether he was given an opportunity to respond to any reason(s) related to his conduct.
[52] In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the 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 170(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.”
[53] The criterion concerning whether an employee was provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity should be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 52
[54] Mr Elliot was notified of, and given an opportunity to respond to, the allegations set out in ARTC’s letter dated 24 December 2018. However, he was not told which particular Principles of Behaviour he was alleged to have contravened, nor was he told how any particular alleged conduct contravened any particular Principle(s) of Behaviour. Moreover, there are some differences between the conduct that is the subject of Allegations 1 and 2 in ARTC’s letter dated 24 December 2018 and the conduct relied on by ARTC at the hearing (as summarised in paragraph [48] above) as the valid reason for Mr Elliot’s dismissal. In particular, Mr Elliot was not notified of, nor given an opportunity to respond to, the following parts of the conduct summarised in paragraph [48] above:
(a) Mr Elliot avoided Ms Turner on 18 December 2018 in circumstances where Mr Elliot believed that Ms Turner wanted to speak to him and the matters Ms Turner wanted to discuss were, on any objective measure, ordinary matters;
(b) Mr Elliot apologised sarcastically for using the word “shit”;
(c) Mr Elliot’s attitude during his conversations with Ms Turner on 18 December 2018 was dismissive and his tone was condescending;
(d) Mr Elliot swore when leaving his second discussion with Ms Turner on 18 December 2018; and
(e) Throughout the investigation process Mr Elliot made spurious and improper allegations against Ms Turner.
[55] Accordingly, I accept that Mr Elliot was not notified of, nor given an opportunity to respond to, the valid reason for his dismissal insofar as it was based on the conduct set out in subparagraphs [55(a) to (e)] above. These matters weigh to some extent in favour of a finding that Mr Elliot’s dismissal was unfair. In assessing the weight to be accorded to these factors, it is relevant that Mr Elliot was given an opportunity to respond to the conduct set out in subparagraphs [55(a) to (e)] above during the course of these proceedings. Having regard to Mr Elliot’s responses to those matters during the course of these proceedings and ARTC’s reply thereto, I am satisfied that even if those matters had been raised with Mr Elliot prior to ARTC’s decision to summarily dismiss him, ARTC’s decision would, in all likelihood, not have been any different. Accordingly, the weight to be accorded to s 387(b) and (c) in my overall determination of whether Mr Elliot’s dismissal was harsh, unjust or unreasonable is less than it would be in a case in which a failure by an employer to give an employee a fair opportunity to respond to a reason for dismissal would, or might realistically, have given rise to a different decision by the employer.
Was there an unreasonable refusal to allow Mr Elliot to have a support person present (s 387(d))?
[56] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, it is relevant to consider and take into account whether the employer unreasonably refused the support person being present.
[57] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”53
[58] Mr Elliot had a support person with him during his meetings with ARTC on 14 and 30 January 2019. I am satisfied that there was no unreasonable refusal by ARTC to allow Mr Elliot to have a support person present to assist at any discussions relating to his dismissal.
Warnings about unsatisfactory performance (s 387(e))
[59] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.
[60] In this case, the reasons for dismissal related to Mr Elliot’s conduct, rather than his performance, so this consideration is not relevant.
Impact of size of ARTC on procedures followed in effecting the dismissal (s 387(f))
[61] ARTC is a reasonably large business enterprise, so that I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Elliot’s dismissal.
Absence of dedicated human resource management specialists or expertise (s.387(g))
[62] ARTC has dedicated human resource management specialists and expertise, so this consideration is not relevant.
Other relevant matters (s 387(h))
[63] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[64] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Postin the following terms: 54
“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]
[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.
...
[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):
“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”
[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”
Length and quality of Mr Elliot’s employment with ARTC
[65] Mr Elliot was employed by ARTC for about five years prior to his dismissal. During that time, Mr Elliot received a reminder of his obligations under the ARTC Code of Conduct in 2015 and a first and final warning in December 2017. The first and final warning issued to Mr Elliot in December 2017 was the only disciplinary action taken by ARTC against Mr Elliot prior to his dismissal. The length and quality of Mr Elliot’s employment with ARTC does not lend much weight to his argument that his dismissal was harsh.
Mr Elliot’s personal circumstances
[66] Mr Elliot is in his late 30’s. He has two young children. His partner does not work. His family is solely reliant on his income to provide for them. Mr Elliot has a significant mortgage over his house. He has not been able to secure full-time employment following his dismissal with ARTC. He has, however, found ongoing casual employment in the rail industry.
[67] The consequences of the dismissal for Mr Elliot and his dependents have been significant. They support his argument that his dismissal was harsh, but must be balanced against all other relevant circumstances, including the gravity of Mr Elliot’s conduct.
Summary dismissal and gravity of Mr Elliot’s conduct
[68] Mr Elliot was summarily dismissed by ARTC on grounds of serious misconduct. The proportionality of the summary nature of Mr Elliot’s dismissal must be weighed against the gravity of his misconduct in respect of which ARTC acted in deciding to dismiss him. 55
[69] In Sharp v BCS Infrastructure Support Pty Ltd, 56 a Full Bench of the Commission discussed the question of whether particular conduct by an employee warranted their summary dismissal as an “other relevant matter” within the meaning of s 387(h) of the Act (references omitted):
[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.
[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:
“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955(NSW) s 4(2)(a)(iii); Workers Compensation Act 1987(NSW) s 14(2).”
[35] In the Decision, the Vice President, correctly, did not attempt to address the parties’ submission concerning “serious misconduct” in the context of his consideration of whether there was a valid reason for the dismissal, but only as a relevant matter under s.387(h). His findings at paragraph [55] and [56] that Mr Sharp’s conduct was “serious misconduct” was, we consider, responsive to the submission of BCS noted in the first sentence of paragraph [52] that “the Applicant’s conduct constituted serious misconduct justifying immediate dismissal”. That is, “serious misconduct” was used as a shorthand expression to described misconduct of a nature that justified summary dismissal. A finding of that nature was a matter which was open to be taken into account as relevant under s.387(h) because it involved an assessment of the seriousness of the conduct in question.”
[70] I will now consider whether Mr Elliot’s conduct warranted his summary dismissal.
[71] If one were to examine Mr Elliot’s conduct on 18 December 2018 in isolation and not in the context of his earlier conduct in 2015 and 2017, there could be little argument that Mr Elliot’s conduct on 18 December 2018 was at the low end of the scale of seriousness. However, once the earlier events are considered, together with the reminders Mr Elliot received about ARTC’s behavioural expectations of him, the final written warning issued to Mr Elliot in December 2017, and the 12 month performance management plan he was under at the time of his interactions with Ms Turner on 18 December 2018, the gravity of Mr Elliot’s conduct becomes more serious.
[72] Also relevant to the gravity of Mr Elliot’s conduct on 18 December 2018 is the fact that Mr Elliot was anxious, agitated, and upset during his discussions with Ms Turner. I do not consider that any conduct or behaviour on Ms Turner’s part gave Mr Elliot a reasonable basis to be anxious, agitated or upset. In my view, Ms Turner’s email to Mr Elliot was not aggressive and it was reasonable for Ms Turner to want to speak to Mr Elliot during his shift on 18 December 2018 about his assertion that Ms Turner’s response had been “quite aggressive”, his role of HSR, and his concerns about consultation. However, I accept that Mr Elliot was genuinely anxious, agitated, and upset during his discussions with Ms Turner. Many employees have such feelings at work about managers or work colleagues. Further, it is unremarkable that Mr Elliot had different views to that of Ms Turner about matters such as consultation and the requirements of his role as HSR. What is important is how an employee in these types of circumstances conducts themselves, and ensure compliance with reasonable standards of behaviour, such as those set out in ARTC’s Code of Conduct.
[73] Mr Elliot sought to avoid further conflict with Ms Turner on 18 December 2018 and de-escalate the situation by attempting to shut down his discussions with Ms Turner. He did that by telling Ms Turner that he did not want to speak to her and, eventually, walking away from Ms Turner on two separate occasions. While Mr Elliot’s conduct in that regard avoided further immediate conflict with Ms Turner, it was not respectful and courteous, nor was he respectful and courteous throughout his discussions with Ms Turner on 18 December 2018. It would, for example, have been respectful and courteous for Mr Elliot to inform Ms Turner that he was happy to discuss the matters she raised with him, but to explain that he was not feeling well at the time and would appreciate organising another time to discuss the matters.
[74] On balance, the fact that Mr Elliot was genuinely anxious, agitated, and upset during his discussions with Ms Turner and he took action, albeit not the preferable course of action, to avoid further conflict with Ms Turner on 18 December 2018, reduces the gravity of his misconduct on 18 December 2018.
[75] In my assessment, Mr Elliot’s conduct in December 2018 and throughout the investigation in January 2019, including his allegations against Ms Turner, viewed in the context of his earlier misconduct in 2015 and 2017 and the reminders and warning he received during the course of his employment with ARTC, was not of such a grave nature as to be repugnant to the employment relationship. While Mr Elliot breached ARTC’s Code of Conduct, he did not engage in wilful disobedience and his conduct was not incompatible with the employment in which he had been engaged by ARTC.
Remorse and acknowledgement of wrongdoing
[76] It is plain from Mr Elliot’s response dated 7 January 2019 to the allegations put to him, together with his evidence in these proceedings, that he does not acknowledge any wrongdoing or remorse for his conduct on 18 December 2018. Instead, as he has in the past during his employment with ARTC, 57 Mr Elliot seeks to blame others and make allegations of wrongdoing against others. On this occasion, Mr Elliot denied the allegations made against him by ARTC and made serious allegations of ongoing bullying and harassment, potential adverse action, potential breaches of the Rail Safety Act 2012 (NSW) and potential breaches of the Work Health and Safety Act 2011 (NSW) against Ms Turner.58 The absence of any acknowledgement of wrongdoing or remorse by Mr Elliot weighs against his contention that his dismissal was harsh in all the circumstances.
Conclusion on harsh, unjust and unreasonable
[77] After considering and taking into account each of the matters specified in section 387 of the Act, my value judgment is that ARTC’s dismissal of Mr Elliot was harsh, but was not unjust or unreasonable. I consider that the dismissal was harsh because, although there was a valid reason for Mr Elliot’s dismissal, his conduct did not warrant his summary dismissal and he was not notified of, and given an opportunity to respond to, part of the conduct which formed the valid reason for his dismissal.
Reinstatement
[78] Having found that Mr Elliot was protected from unfair dismissal, and that his dismissal was harsh, it is necessary to consider what, if any, remedy should be granted to him. Mr Elliot seeks the remedy of reinstatement. As a result, I need to consider whether reinstatement of Mr Elliot is appropriate.
[79] ARTC submits that, should the Commission find that Mr Elliot’s dismissal was harsh, unjust or unreasonable, he should not be reinstated because it has no trust or confidence in him.
[80] A Full Bench examined the relevant principles concerning an alleged loss of trust and confidence in the context of an application for reinstatement in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (references omitted): 59
“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
• The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
[28]Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”
[81] Put another way, it is necessary when assessing the appropriateness of an order for reinstatement to consider whether Mr Elliot has demonstrated sufficient understanding that his behaviour was inappropriate and unacceptable such as to give rise to a sufficient level of confidence that conduct of that type will not recur if he is reinstated and the employment relationship will be viable and productive. 60 I am not satisfied that Mr Elliot has demonstrated enough self-awareness as to his conduct on 18 December 2018 to give rise to sufficient confidence that Mr Elliot would, if reinstated, not engage in the same or similar conduct in the future. Mr Elliot has not acknowledged that his conduct was inappropriate on 18 December 2018, nor has he expressed any remorse or contrition for his conduct on that day. These factors, coupled with Mr Elliot’s history of inappropriate conduct in the workplace (in 2015 and 2017), lead me to conclude that Mr Elliot would be likely to engage in further inappropriate conduct in the workplace if he were reinstated.
[82] In addition, I am satisfied that there has been a loss of trust and confidence between Mr Elliot and ARTC given the serious allegations of ongoing bullying and harassment and the like Mr Elliot made against Ms Turner during the investigation process. Mr Elliot maintained those allegations during these proceedings, but did not adduce any evidence which satisfies me that there was a proper basis to make those allegations against Ms Turner. In his formal complaint against Ms Turner dated 29 January 2019, Mr Elliot demanded (through the RTBU) that Ms Turner have no further contact with Mr Elliot. 61 It would be impractical for Mr Elliot not to have contact with Ms Turner, given (a) her role as the manager of Mr Elliot’s manager (Mr May), which involved her interacting with Mr Elliot in the workplace, both in relation to operational matters and in connection with Mr Elliot’s role as HSR and (b) the fact that Ms Turner’s office is in close proximity to Mr Elliot’s workstation.62
[83] Having regard to all the circumstances, I am satisfied that reinstatement would be inappropriate in this case.
Compensation
[84] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 63
[85] Having regard to all the circumstances of the case, including the fact that Mr Elliot has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate.
[86] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Elliot. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.
[87] In undertaking this task, I shall use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases. 64 The approach to calculating compensation in accordance with these authorities is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
Remuneration Mr Elliot would have received, or would have been likely to receive, if he had not been dismissed (s 392(2)(c))
[88] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 65
[89] In light of my findings and conclusions in relation to the factors under s 387, including that ARTC had a valid reason for Mr Elliot’s dismissal but his conduct did not warrant summary dismissal, I find that had Mr Elliot not been summarily dismissed on 30 January 2019, ARTC would have dismissed him on notice or by payment in lieu of notice. Mr Elliot was employed by ARTC for just over 5 years. He was therefore entitled to four weeks’ notice under s 117 of the Act. Accordingly, I find that Mr Elliot’s dismissal would have taken place four weeks after 30 January 2019 had he not been dismissed on that day.
[90] It follows that the remuneration Mr Elliot would have received, or would have been likely to receive, if he had not been dismissed would have been another four weeks’ remuneration. Mr Elliot’s gross remuneration (including super) with ARTC was $2,701.04 66 per week. It follows that in four weeks he would have received $10,804.16 gross.
Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f) and (g))
[91] Mr Elliot finished employment with ARTC on 30 January 2019. If he had remained in employment with ARTC for a further four weeks, his employment would have come to an end on 27 February 2019.
[92] He commenced casual employment in the rail industry in February 2019. The payslips tendered by Mr Elliot show that he earned $2,980 gross (including super) in the period from 31 January 2019 to 24 February 2019. Mr Elliot’s next pay slip covers the period from 25 February 2019 to 3 March 2019. It shows that Mr Elliot earned $560 gross in that week, but does not show the day(s) on which Mr Elliot worked during that week. No other evidence was adduced in relation to this issue. Accordingly, I will take 3/7ths of Mr Elliot’s earning in the week from 25 February 2019 to 3 March 2019 as having been earned prior to the end of the four week notional notice period on 27 February 2019. It follows that Mr Elliot’s gross earnings (including super) in the four week period from 31 January to 27 February 2019 were $3,220 ($2,980 + (3/7 x $560) = $3,220).
[93] Accordingly, in the four week period following his dismissal from ARTC, Mr Elliot suffered a loss of remuneration in the gross sum of $7,584.16 ($10,804.16 - $3,220 = $7,584.16).
Any other relevant matter (s 392(2)(g))
[94] It is necessary to consider whether to discount the remaining amount ($7,584.16) for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Elliot was subject might have brought about some change in earning capacity or earnings. 67 Positive considerations which might have resulted in advancement and increased earnings are also taken into account. Ordinarily, the discount for contingencies is only applied in respect to an “anticipated period of employment” that is not actually known.68
[95] In the present case, there is no “anticipated period of employment” that is not actually known. That is, the evidence discloses the remuneration Mr Elliot received in the four week period following his dismissal. In the circumstances, therefore, I will not discount the remaining amount ($7,584.16) for contingencies.
[96] Save for the matters referred to above, there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.
[97] I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.
Viability (s 392(2)(a))
[98] ARTC is a reasonably large organisation. No submission was made nor was any evidence adduced on behalf of ARTC, that any particular amount of compensation would affect the viability of ARTC’s business. No adjustment will be made on this account
Length of service (s 392(2)(b))
[99] In all the circumstances, I consider that Mr Elliot’s period of service with ARTC (about five years) does not in all the circumstances justify any increase or reduction to any amount of compensation otherwise calculated.
Mitigation efforts (s 392(2)(d))
[100] I am satisfied that Mr Elliot acted reasonably to mitigate his loss by finding alternative employment in the rail industry and do not consider it appropriate to reduce the compensation on this account.
Misconduct (s 392(3))
[101] Section 392(3) of the Act provides that if the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order under s 392(1) of the Act by an appropriate amount on account of the misconduct.
[102] For the reasons stated above, I am satisfied that Mr Elliot engaged in misconduct and that his misconduct contributed to ARTC’s decision to dismiss him. In my view, however, there is no appropriate amount by which I must reduce the amount of $7,584.16 on account of Mr Elliot’s misconduct in circumstances where I have already taken into account Mr Elliot’s misconduct and the fact that it gave ARTC a valid reason for his dismissal in determining that Mr Elliot would have been employed for a further 4 weeks if he had not been summarily dismissed (see paragraphs [88] to [89] above). It is from this figure that the remuneration earned by Mr Elliot was deducted to provide the remaining amount of $7,584.16. To reduce this amount by a further amount on account of Mr Elliot’s misconduct would have the effect of penalising him twice for the same conduct and thus, not accord Mr Elliot with “a fair go all round” as required by section 381(2) of the Act. Further, I consider it is in the interests of justice that Mr Elliot obtain an order for compensation reflecting the notice period he would have received had he been terminated on notice, less moneys earned in the 4 week notice period. 69
Shock, distress or humiliation, or other analogous hurt (s 392(4))
[103] I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress
Compensation cap (s 392(5)-(6))
[104] The amount of $7,584.16 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Mr Elliot was entitled in his employment with ARTC during the 26 weeks immediately before his dismissal. In those circumstances, I am satisfied that there is no basis to reduce the amount of $7,584.16 by reason of s 392(5) of the Act.
Instalments (s 393)
[105] No application was made by ARTC for any amount of compensation awarded to be paid in the form of instalments.
Conclusion
[106] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate.
[107] For the reasons I have given, I am satisfied that a remedy of compensation in the sum of $7,584.16 in favour of Mr Elliot is appropriate in the circumstances of this case. I will issue an order PR708908 to that effect.
DEPUTY PRESIDENT
Appearances:
Mr A Guy, counsel, on behalf of Mr Elliot.
Mr O Fagir, counsel, on behalf of ARTC.
Hearing details:
2019.
Newcastle:
13 and 14 May.
Printed by authority of the Commonwealth Government Printer
<PR708907>
1 Ex R1 at [51]
2 Ex R3 at BP-12; Ex A5 at BE9
3 Ex R1 at JT-7
4 Ex R3 at BP-12
5 Ex R2 at AM-1
6 Ex R1 at JT-7; Ex R3 at BP-12
7 Ex R1 at [69]; Ex A1 at [33]
8 Ex R1 at JT-7 and [69]
9 Ex R1 at JT-7; Ex R3 at BP-12
10 Ex R1 at JT-7; Ex R3 at BP-12
11 Ex R1 at JT-7; Ex R3 at BP-12; Ex R5 at [4]; Ex R4 at [4]
12 Ex R1 at JT-7
13 Ex R1 at JT-7; Ex R3 at BP-12
14 Ex R4 at [5]; Ex R3 at BP-12
15 Ex R1 at JT-7; Ex R3 at BP-12
16 Ex R1 at JT-7; Ex R3 at BP-12
17 Ex R1 at JT-7; Ex R3 at BP-12
18 Ex R4 at [4]-[5]
19 Ex A3 at [3]-[4]
20 Ex A1 at [34]
21 Ibid
22 Ibid
23 Ex R3 at BP-12
24 Ex R1 at JT-7; Ex R2 at AM-1
25 Ex A3 at [4]
26 Ex R1 at JT-7
27 Ex R1 at JT-7; Ex R2 at AM-1
28 Ex R1 at JT-7; Ex R2 at AM-1; Ex R3 at BP-12
29 Ex R1 at JT-7; Ex R2 at AM-1; Ex R3 at BP-12
30 Ex R1 at JT-7; Ex R3 at BP-12
31 Ex R1 at JT-7; Ex R2 at AM-1; Ex A1 at [5]
32 Ex R2 at AM-1; Ex R1 at JT-7
33 Ex A3 at [4]; Ex A2 at [4]; Ex A1 at [4]; Ex R1 at JT-7; Ex R2 at AM-1; Ex R3 at BP-12
34 Ex R2 at AM-1
35 Ibid
36 Ex R1 at JT-7; Ex R2 at AM-1; Ex R3 at BP-12
37 Ex R2 at AM-1
38 Ex R2 at [4(b)]
39 Ex R2 at AM-1
40 Ex R2 at AM-1; Ex R3 at BP-12
41 Ex R2 at AM-1; Ex R3 at BP-12
42 Ex A1 at [41]; Ex R3 at [19]
43 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
44 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
45 Ibid
46 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
47 Ibid
48 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
49 Ibid
50 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
51 [2013] FWCFB 6191
52 RMIT v Asher (2010) 194 IR 1 at 14-15
53 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].
54 [2013] FWCFB 6191
55 Johnson v Northwest Supermarkets Pty Ltd[2017] FWCFB 4453 at [5]; Sharp v BCS Infrastructure Support Pty Ltd[2015] FWCFB 1033 at [34]
56 [2015] FWCFB 1033
57 Ex R3 at BP-6 (Court Book at p 185) & BP-9 (Court Book at pp 193-4)
58 Ex R3 at BP-14 and BP-16
59 [2014] FWCFB 7198
60 Gurdil v The Star Pty Ltd[2013] FWC 6780 at [101]; Hatwell v Esso Australia Pty Ltd[2019] FWCFB 2895
61 Ex R3 at BP-16 (Court Book at p 219)
62 Ex A7
63 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]
64 Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431
65 Double N Equipment Hire Pty Ltd v Humphries[2016] FWCFB 7206 at [16]-[17]
66 ARTC’s Employer Response (F3) at 1.5
67 Ellawala v Australian Postal Corporation Print S5109 at [36]
68 Enhance Systems Pty Ltd v Cox PR910779 at [39]
69 Johnson v Northwest Supermarkets Pty Ltd[2017] FWCFB 3897 at [24]
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