Bret Fishley v Inclusion Works Association Inc - [2013] FWC 2104

[2013] FWC 2104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bret Fishley
v
Inclusion Works Association Inc
(U2012/16231)

COMMISSIONER SPENCER

BRISBANE, 21 JUNE 2013

S.394 - Application for an unfair dismissal remedy.

Introduction

[1] This decision relates to an application made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Bret Fishley (the Applicant) on 3 December 2012 in relation to the termination of his employment on 23 November 2012 by Inclusion Works Association Inc (the Respondent).

[2] The matter was listed for conciliation before a Fair Work Conciliator, but the matter was not able to be resolved. The matter was then allocated to the Commission as currently constituted, for Arbitration.

[3] After several conferences the Commission issued directions pursuant to which the parties filed their submissions and witness statements. A hearing was held on 7 May 2013 in Townsville, at which the Applicant appeared for himself and Mr Gil Muir of Employer Services Pty Ltd appeared, by consent, for the Respondent. The parties relied on their written submissions and made some further submissions during the hearing.

[4] The Commission notes that due to the volume of materials provided by the parties that not all evidence or submissions are referred to in this decision — however, all of such evidence and submissions have been considered.

[5] The Applicant expressed on a number of occasions, prior to the hearing, regarding his general concern as to his inability to properly conduct his case. Considerable time (by consent of the Respondent) was taken by the FWC Associate, in providing guidance on the hearing procedure and associated materials. Given the Applicant’s concerns in this regard, after consultation with the parties, a determinative conference approach was adopted at the hearing. The Applicant and his support person were given considerable latitude throughout the process to present additional material, and to ask questions at the times that they sought to raise issues and material. At the conclusion of the hearing, both parties confirmed they were content, that they had put all material, before the Commission. 1

[6] At the request of the Applicant and by consent, the Respondent’s witness statements have been considered in conjunction with all of the Applicant’s written submissions that critique, such evidence. This consent process was adopted at the request of the Applicant and in lieu of the Applicant undertaking cross-examination, however it is noted that both parties had the opportunity to put questions to the relevant witnesses.

[7] The Applicant indicated in his submissions and at the hearing, that reinstatement was not sought, and that he sought an order for compensation, if the Commission found the dismissal to be harsh, unjust or unreasonable.

Issues for determination

[8] The Respondent did not raise any jurisdictional or procedural objections to the application. The Respondent did note that it had only eight employees at the time the Applicant’s employment was terminated, and accordingly, the Small Business Fair Dismissal Code (the Code) was applicable.

[9] It is not in dispute between the parties, and the Commission is satisfied, that the Applicant was a person protected from unfair dismissal, at the time he was dismissed.

[10] Further it is not in dispute between the parties, and the Commission is satisfied, that the Applicant was dismissed by the Respondent and that the dismissal was not a case of genuine redundancy.

[11] The issues for determination are, whether the Commission is satisfied that the dismissal was harsh, unjust or unreasonable and whether the dismissal was consistent with the Code.

[12] If the Commission is satisfied of the above, then the Commission may order the Applicant’s reinstatement or, if the Applicant’s reinstatement would be inappropriate, order the payment of compensation to the Applicant, if it is appropriate in all the circumstances of the case.

Legislative scheme

[13] The relevant provisions of the Fair Work Act 2009 (the Act) and the Code, as they stood at the time the Applicant was dismissed, are set out for convenience.

[14] Section 385 stated:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; 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.

[15] Relevant to the issues for determination, s 387 contains the criteria for considering harshness etc:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.

[16] Relevant to the issues for determination, s 388 outlines compliance with the Code:

388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[17] Section 23 of the Act defines a small business employer:

23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

...

[18] On 1 July 2009 the Code, as issued by the Minister for Employment and Workplace Relations on 24 June 2009, came into effect. The Code is as follows:

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

Factual background

[19] The Applicant was employed by the Respondent as a Community Development Worker from February 2010. From then until June 2012, the Applicant stated he did not have any issues at work. The Respondent dismissed the Applicant on 23 November 2012. The circumstances that lead to the dismissal are in dispute between the parties.

[20] The divergence in the facts commence from June 2012, when the Applicant claimed he began to be bullied at work.

Summary of Applicant’s evidence and submissions

[21] The Applicant submitted he was dismissed solely for raising concerns regarding workplace health and safety issues, relating to issues of harassment, intimidation and bullying that he alleged, he was subjected to during his employment.

[22] The Applicant submitted that the Commission should consider a number of events from June 2012 onwards, leading up to the dismissal, which are intertwined with his claims of workplace harassment, intimidation and bullying, and the resulting breakdown of the relationship between him, his supervisors and a number of colleagues.

[23] In addition, the Applicant claimed that an independent report prepared for the Respondent by HRBE Consulting into his grievances and complaints, and upon which the Respondent relied in dismissing the Applicant, was flawed and inaccurate. The Applicant submitted:

“IW then initiated a process by which they could legitimise my dismissal. They asked Fiona and I to go to mediation and also made a counsellor available, the same person they were using to conduct the mediation. I loved my job and desperately wanted to work things out so that I could continue however Fiona refused to engage further after the first mediation session.

IW then appointed an investigator Mary Stevenson from HRBE Consulting (Mary).

The IWCoM in their letters to me have always referred to this process as an “Independent Investigation” and one would assume from this that the investigator would act independently. This submission will provide evidence of dozens of instances where the investigator has conclusively demonstrated that they have been anything but independent.

After speaking with a number of other previous IW staff I found out that this was what they had also done to successfully legitimise the dismissal of others before.” 2

Workplace harassment

[24] The Applicant claimed a pattern of workplace harassment emerged around June 2012 when: Fiona Saunders, a colleague, began to confront him at work; issues with his managers about his use of time-off-in-lieu (TOIL) emerged; and issues with his managers about being directed to take leave emerged. He also perceived that his supervisors and colleagues were deliberately trying to ruin projects he was working on. He perceived that he was being treated differently to other colleagues. He also considered that he was not trusted by his supervisors and over time other colleagues and supervisors began to confront him at work and, in the Applicant’s view, mistrust him.

Claims regarding the HRBE report

[25] In relation to the report undertaken by Mary Stevenson of HRBE Consulting, the Applicant stated:

“It quickly became clear that Mary had no interest whatsoever in finding anything that might vindicate my position that there is a culture of bullying in the organisation. Indeed Mary’s every action indicated her very clear focus on finding the opposite thus betraying her ‘so called’ independent status by not properly weighing the question of where the balance of probability should lay in relation to her acceptance of testimony.

It was thus no surprise to me upon receiving the completed report that it had the following characteristics:

● One sided interpretations of what had happened that don’t present a balanced picture of events
● Complaints are ignored.
● Explanations that I had provided are distorted and quoted out of context to impugn me.
● Illogical justifications for things that Fiona or Ric have done are invoked to serve the purpose of vilifying myself and legitimising the action of Inclusion Works
● Mary neglects to interview Fiona Williamson who has told me she had been bullied. She also refuses to interview Ross Anderson who has also complained to me of being bullied and has told me he is aware of many others being bullied as well.
● Even though I lodge in excess of 60 complaints illustrating how Inclusion Works are in violation of Work Health Safety Queensland anti bullying legislation the Mary the investigator (sic) finds that there was no wrong doing on the part of Inclusion Works.
● Mary ignores Fiona contradicting herself in her two statements in one admitting wrongdoing and in the next denying it.
● Even though I lodge a similar number of complaints where I explain how actions taken by Fiona, Ric, Leigh & Sarah against myself are in violation of the Inclusion Works Code of Conduct none of these wrong doings are upheld by Mary and many are simply ignored.

Accompanying the report from Mary was a letter from IW expressing their approval of the contents of the report asking me to show cause why my employment should not be terminated.

All I could do at this point was reject the report based on the more general grounds mentioned in the email I sent to Gil and continue working on a detailed unfair dismissal claim that would provide clear evidence of the unfairness of what IW was doing to me. I knew it would require many months of work in order for me to properly address each point raised in the report upon which they were justifying their view that I should be dismissed the scope of their allegations being as heinous and vast as they were.” 3

[26] In relation to his dismissal, the Applicant stated:

“It was clear from everything that had gone before that IW had already made up their mind to dismiss me regardless of what I said. Since it was Mary’s report was being used to justify my dismissal it was clear that the IWCoM had accepted the approach and reasoning put forward by Mary so any attempt to discredit it would have to be well thought out, properly evidenced and put forward to an independent authority.

What happened next has never really made sense to me. I sent Gill and (sic) email and gave IW a number of reasons explaining why I felt that I should not be dismissed. I also told them that I had prepared a more detailed response as to why I should not be dismissed but that I would not be supplying it to them at this time. The reason being that I had no hope of addressing this fully within the alloted timeframe.

A few hours after I sent my email IW issued me with a dismissal letter. I was somewhat confused to see that even though I had supplied them with reasons justifying why I felt that I should not be dismissed that they were ignoring this and asserting a contrary notion. I sent Gil an email asking him for an explanation however he refused to respond. I then went ahead with the filing of a claim for unfair dismissal.

...

My reasoning for this was that it seemed to me that I had complaining about being bullied and that IW had then hired an investigator to write a report in their favour arguing that my complaints were vexatious and frivolous to justify my dismissal. So, providing it can be proved that my complaints were legitimate, I was dismissed for complaining about being bullied and this is a violation of my workplace rights.” 4

[27] Prior to his dismissal the Applicant wrote the following letter:

“Gil Muir
Director
Employer Services P/L
PO Box 6369
Mitchelton QLD 4053

Re: Inclusion Works

Dear Gil,

I am writing in relation to your client Inclusion Works (IW) in Townsville. As you are aware I have been an employee of IW for a period of almost two years. I was, up until the time that I began to be bullied by Fiona Saunders, highly regarded for my work making a difference in the lives of vulnerable people.

I am deeply disappointed by the way that IW has treated me since the time that I first raised the issue of harassment. This is of course not the first time that a staff member has been harassed at IW and I have no doubt that it will not be the last time either so long as the present management team remains in place.

I have gone into a great deal of detail discussing the issues that I have come up against. I have also gone into a great deal of detail writing a 17 page rebuttal of the so-‐called “Independent Investigation” conducted by Mary Stevenson from HRBE. I am not going to make that available to IW or yourself at this time.

Suffice to say, that I think the investigation was biased in the way that it has selectively chosen to either use or discard information based solely on whether or not it serves IW purpose to vilify me and give the appearance of no wrongdoing having been done on the part of anyone else. This was a very deliberate attempt to pervert what happened and bore very little relation to truth.

Furthermore, this investigation has been myopic in relation to its terms of reference refusing to look into my principle allegation that there is an ongoing culture of harassment within IW. Despite the fact that two (so far of many) former employees have come forward and told their stories via email to the investigator, and quite inappropriately, this information has been completely ignored and dismissed as a mere inability on my part to follow instructions. This excuse is unjustifiable.

The refusal of IW to lift a finger during the very public humiliation of Paul Reepsdorff their client who would not have been involved with Brian Arnold setting up a social enterprise to promote Townsville utilising “The Saint” icon were it not for our involvement with him, is yet another illustration of the lack of professional ethics of IW. Not only do they happily bully staff, but also in this instance they have happily stood by whilst people involved in a project they have initiated were trampled. IW was very happy to accept accolades for this project before it all went pear shaped, but as soon as the going got tough they did not advocate. Instead they stood by whilst Brian lost $7,500.00 of his own money and his employment as the manager at Nth Qld Small Business Development Centre and had to leave town and Paul was left stripped of all hope, isolated from the only person that was providing him with support, that person being me. In Paul’s own words: “Bret is the only person who tried to do anything”.

The termination of my employment is imminent because I chose to make a complaint of harassment and this is in, and of itself, fraught. I have never been given a formal warning related to any type of misconduct or poor behaviour. I have never been disciplined till this fiasco of a process that IW launched against me was initiated.

If the full facts had have been considered, the notion that I have made “vexatious and frivolous” complaints would not have been able to be entertained. Thus this notion purported by IW that I have made vexatious and frivolous complaints is unfounded, the process was tainted, and IW conducted this investigation in such a way as to deliberately arrive at a predetermined outcome. This is supported by the communications between the IW Committee of Management and myself in the early stages of the investigation and even before it was formally announced.

I am not prepared to negotiate a deal as doing so would exonerate IW from any wrongdoing and would be an acceptance on my part that my dismissal is justified. My legal advisor has informed you that I will be fighting this injustice that has been perpetrated against me tooth and nail and I am here to confirm that this is my intention.

In the meantime, I will be taking proactive steps to ensure that my dignity and reputation is not besmirched.

Yours Sincerely,

Bret Fishley”
(emphasis added)

[28] The main points of the Applicant’s case were the refusal by the Respondent to examine evidence presented by previous employees and the failure to recognise or resolve the issues that arose in relation to “The Saint” project, as outlined above in relation to the Applicant’s concerns regarding the treatment and lack of support for those other people involved. Significantly, the Applicant stated that the dismissal arose because he made a complaint about harassment and that previous to the alleged bullying he stated he had never been subject to disciplinary measures or formal warnings related to misconduct or poor behaviour. He further stated that if the full facts had been considered, it could not have been found that he had made vexatious and frivolous complaints and that such was an unfounded conclusion based on a tainted, predetermined process.

[29] The Applicant made a series of written observations of the Respondent witnesses; all of these have been considered. The nature of some of these observations is as follows:

“Fiona
1. Her failure to deny things I was told by previous staff members that I presented in the meeting on the 8^th of August 2012 thus giving weight to the legitimacy of this information that was conveyed to me.
2. Presentation of irrelevant information
3. Presentation of evidence that contradicts what she is trying to say.
4. Presentation of false representations of others
5. Making much of issues that were never a concern to her when we had a good relationship.
6. Trying to make out that other pressures in my life outside IW contributed to some sort of mental breakdown which I absolutely refute repeatedly discussing my then de-facto relationship.
7. Apportioning wrong doing where there was none
8. She then raises an issue of me talking about cycling and that people found this tedious. Irrelevant, and no reason to sack me.
9. Being tired at work. Not true and never mentioned in documentation before. Indeed contradicts evidence in appraisal as to the energy with which I worked.
10. Giving contradictory fabricated testimony.
11. Misrepresenting how I was handing situations.
12. Distorting information
13. Fails to present any logical material evidence of not following direction.
14. Lack of material evidence to refute what I am saying in relation to her bullying me.

Ric
1. Reinventing the past
2. Hubris that prevents him from reflecting on his shortcomings
3. Duplicity
4. Irrelevant political attacks
5. Distortion of information and situations
6. Concealing evidence
7. Giving false testimony
8. Did not raise the previous charges of me bringing the organisation into disrepute or breaching confidentiality evidencing his pulling back from this ill-considered position taken on the 8^th of August 2012.” 5

[30] The Applicant made further observations however it is not necessary to reproduce them here. The Applicant’s observations have been considered against the matters raised by the Respondent. The observations do not undermine the evidence as it relates to the salient issues related to the reasons for the dismissal.

[31] The Applicant further stated:

I would hear (sic) draw it to the FWC attention that there are hundreds of issues correlating to the concerns raised above that lay within the investigative report. Furthermore, in no place in IW “show cause” letter to me was it stipulated that a general response would be un-‐acceptable. When one separates the implausible information from the plausible in the IW submission all we are left with are a few concerns raised my (sic) Sarah in her affidavit that are so lacking in substance as to be frivolous in my view and expressed with the sole intention of facilitating my removal from the organisation.

[32] The Applicant’s submissions and statement are considerable in volume. It is not possible, nor necessary in the context of this decision, to individually consider each allegation made. However all of such have been considered.

Respondent’s evidence and submissions

[33] The Respondent submitted that the Applicant’s use of the grievance and complaints process against several of his colleagues reasonably amounted to a vexatious and frivolous abuse of process and produced outcomes which caused discomfort to his colleagues. The Respondent submitted that some of the claims caused irrevocable damage to the working relationship between the Applicant and his colleagues. In addition, the Respondent submitted that the Applicant acted contrary to reasonable directions and instructions given to him and failed to follow the Respondent’s standing policies and procedures.

[34] The Respondent submitted its dismissal of the Applicant was not unfair, that they correctly followed the law and internal policies and procedures, and applied procedural fairness in terminating the Applicant’s employment.

The Investigation and Report

[35] The Applicant claimed that his dismissal had resulted from the bullying he had been subjected to during the later part of his employment. The Respondent was a small business employer, employing eight people, including the Applicant. The Applicant had made bullying allegations against three of his colleagues: Mr Ric Thompson, the service co-ordinator, Ms Fiona Saunders, his supervisor, and another employee, Ms Sarah Horwood. The Applicant also made a series of claims, some of which are referred to below identified in summary terms, and as taken from Ms Stevenson’s report as follows:

32.1 Time-off-in-lieu (TOIL)

[36] The Applicant claimed that Mr Thompson and Ms Saunders had refused recognition of some of his TOIL, had wrongly prevented him from accumulating TOIL, and that he was given false information in relation to the Respondent’s TOIL policy. The Applicant also claimed that he was subjected to unfair criticism for not accomplishing the tasks allocated to him within the cycle of his normal fortnightly working hours.

[37] The Applicant also made references to the content of discussions, correspondence and meetings which occurred over the period of June 2012 to August 2012, within which he alleged that he was unfairly criticised by Ms Saunders, that his work was sabotaged by Mr Thompson and Ms Saunders, and that Mr Thompson and Ms Saunders were dishonest and disrespectful to him.

32.2 Inconsistencies in Direction

[38] The Applicant had a discussion with Ms Saunders in late July 2012 regarding a client of the Respondent in relation to the client’s funded hours. In that discussion, the Applicant stated that he discussed with the client, in as sensitive a manner as possible, that the Respondent would need to reduce the amount of contact hours provided to the client based on the client’s ill health and because the Respondent was receiving funding of 5 hours per week that was not being undertaken.

[39] Ms Saunders denied telling the Applicant to discuss the funding arrangement with the client. Ms Saunders also denied ridiculing or being aggressive with the Applicant.

[40] Ms Saunders recalled a discussion with the Applicant on or about 31 July 2012 where she asked him not to discuss charging outputs to the department as it was confidential information. Ms Saunders went on to explain the quarterly reporting arrangements with the Applicant and recalls that he seemed satisfied with the information.

32.3 The Applicant’s complaint in relation to annual leave

[41] The Applicant raised a complaint with the Respondent in relation to annual leave which arose out of discussions held towards the end of May 2012. The discussions were in relation to the utilisation of annual leave entitlements whilst referrals were slow at the Respondent’s business and in relation to subsequent events after 9 June 2012 regarding the Applicant’s shoulder injury.

32.4 The Applicant being accused of bringing the Respondent into disrepute

[42] This incident of complaint arose out of a meeting that took place between Mr Thompson, Ms Saunders, Ms Paula Johnson and the Applicant on or about 8 August 2012. The Applicant stated that Mr Thompson chaired the meeting.

[43] Ms Johnson stated that Mr Thompson spoke to her on or about 7 August 2012 to advise of an incident between Ms Saunders and the Applicant. As a result of the incident, Mr Thompson asked Ms Saunders to lodge a report about this. As there was already as issue between the Applicant and Ms Saunders, Mr Thompson wanted to call a meeting to resolve the situation.

[44] Ms Johnson stated that the Applicant made serious personal, professional and potentially defamatory accusations against Ms Saunders at the meeting. The Applicant was composed in the meeting but struggled to give specific examples relating to the critical incident when prompted, other than by referring to Ms Saunders’ tone of voice and that she screwed up her face. Ms Johnson stated that Ms Saunders was particularly emotional at the end of the meeting. Ms Johnson also recalls becoming emotional. Ms Johnson stated that she had respect for both Ms Saunders and the Applicant.

[45] The Applicant later confirmed in an interview that Mr Thompson chaired the meeting with Ms Johnson, Ms Saunders and the Applicant in attendance. When the Applicant was asked about the outcome of the meeting, he stated that he didn’t know what the outcome of the meeting was.

32.5 Does not appear in the Applicant’s document - related to a separate complaint he is pursuing externally to the Respondent

32.6 Concerns of aggression and intimidation

[46] This incident of complaint arose out of an incident on or about 7 August 2012 where Ms Saunders approached the Applicant about leaving early from a meeting he was holding at the Respondent’s premises that morning and the subsequent discussion that followed.

32.7 Does not appear in the Applicant’s document - related to a separate complaint he is pursuing externally to the Respondent

32.8 Being treated with mistrust

[47] This incident of complaint arose out of an incident that occurred on or about 21 August 2012 regarding the locking of the door to the co-ordinator’s office.

32.9 Sabotaging the Applicant’s ability to do his job effectively - turning work colleagues against the Applicant and violating principles of the Respondent business

[48] The Applicant’s complaint arose out of a request originally made to Mr Thompson that the Applicant meet personally with a Townsville City Councillor on behalf of one of the Respondent’s clients regarding development and marketing opportunities for “The Saint”, a well-known graffiti drawing prominently displayed on the side of Castle Hill in Townsville City. The graffiti has often been the subject of attention in the press over many years. The Applicant was subsequently directed by Ms Sarah Horwood and Ms Saunders that he was not to personally approach the councillor, but to send a letter.

[49] Ms Horwood stated in an interview that Mr Thompson provided direction to her after he had gone on leave that the Applicant was not to approach the Townsville City Council in person but that a letter was to be written. The Applicant stated that he did not agree with that approach and ultimately after two drafts of the letter he abandoned this approach and instead continued to agitate with many e-mails and verbal communications to Ms Saunders, Ms Horwood and also the Respondent’s client and his advisor.

32.10 Use of the Respondent’s work vehicles for private purposes

[50] The Applicant claimed that Ms Saunders had taken a vehicle home every night for several months except on a few occasions when she was using a car belonging to a friend. When the Applicant was interviewed by Ms Stevenson, Ms Stevenson tried to establish the specific timeframes the Applicant referred to. The Applicant was unable to provide any specific timeframes in relation to this incident. When pressed by Ms Stevenson in relation to when these incidents occurred, the Applicant could not recall when they occurred.

[51] The Applicant also stated in an interview that he has no proximity to Ms Saunders’ role which meant that he would be unaware if Ms Saunders was required to have meetings with clients out of hours. When pressed on this at a later time in the interview process, the Applicant again stated that he had no proximity to Ms Saunders’ role, but doubted if it was true that Ms Saunders was meeting with clients.

32.11 Procedural fairness

[52] The Applicant complained on numerous occasions that he was not issued with an agenda of what was planned for the course of the subject meetings, was not given in indication of the topics that would be covered in those meetings, and was not advised of the preferred outcomes of those meetings.

[53] The Applicant also stated that he was not invited to have a support person accompany him to any of these meetings or interviews.

Findings

[54] The Respondent appointed an independent consultant to investigate the claims. The consultant undertook more than five hours of interviews with the Applicant. He was permitted to record all of the interviews. The findings in relation to each of the claims made were published in the report. The following extracts provide a summary of the findings:

Finding - Time-off-in-lieu (TOIL)

“Inclusion Works Policy 5.8.13.5 states - All overtime above designated hours requires the Co-ordinator’s approval and will be paid or accrued as Time In Lieu as normal time. The policy on overtime complies with the conditions outlined in the Social, Community, Home Care and Disability Award (2010).
I have established through discussions with Fiona, Sarah, Leigh and Emily that Inclusion Works from April – June 2012 was experiencing a downturn in referral numbers which in turn impacts on funding guidelines so therefore directly impacts IW costs. IW was also faced with returning unspent funded hours to the Department at the end of the June 2012. These points were noted in a number of Staff meeting minute notes of which Bret was in attendance.

I have found there were unused funded hours to be returned to the Department and I find it realistic therefore to expect that IW Management needed to manage hours with Clients to ensure this was undertaken with fiscal responsibility. i.e. undertaken with in the 76 hours per fortnight. Fiona has stated in interview (FS 1) that Bret was not in a position to accrue TOIL as his workload at that time was able to be completed within the 76 hours per fortnight.

Bret in interview (BF 2) has said Inclusion Works was not under any financial pressure. Records show that it had been discussed in Staff Meetings as evidenced by Staff Meeting Minutes, which note that Bret was in attendance. (Staff Meeting Minutes 10/04/12).

Bret stated in Interview (BF 2) that IW was not getting referrals from Disability Services for months and therefore he was able to spend more time with the 5 or 6 Clients he had. Bret also stated in Interview (BF 2) that he would usually work with 8,9,10 and even up to12 Clients.”

Finding - Inconsistencies in Direction

“Having reviewed the information available I am unable to identify any breaches of the WHS legislation as it relates to Bret being verbally abused by Fiona, or being put down by Fiona, or Fiona falsifying information or that Fiona has unjustifiably criticised Bret.

I am also unable to identify any breaches of the IW Code of Conduct.”

Finding - The Applicant’s complaint in relation to annual leave

“The terms of Annual Leave are provided for in the National Employment Standards (NES) and are read in accordance with the Social, Community, Home Care and Disability Award (2010). The request by Fiona that Bret take leave is in accordance within the provisions of the NES and in accordance with the Social, Community, Home Care and Disability Award (2010).

With the slowdown in Client referrals that occurred around April 2012 discussions occurred at IW in relation to staff possibly taking annual leave. Bret then injured himself outside of work hours and broke his shoulder. Bret returned to work initially but was subsequently advised by his Doctor that he would be unable to drive for six weeks.

Fiona has stated that she asked Bret how he wanted to use his accrued entitlements to cover the time he would be away from IW due to his injury.

I found Bret was unable to provide specific examples in relation to how Fiona’s behaviour of abuse, ridicule or sabotage or being nasty. Bret has wanted to direct me back to the document he has provided and not wanted to discuss in Interview (BF 2). I did find that Bret was able to relate specific incidents of Fiona’s personal life and circumstances but could not provide specific details of what Fiona has said to him in relation to this Incident.

I have found no evidence to support Bret’s claim of being forced to take leave when he did not want to. I found Bret’s circumstances changed with the injury to his shoulder and he was unable to drive for six weeks, which was necessary for his day to day role.

I find it reasonable for IW to ask Bret to take consider (sic) his accrued entitlements and how he could use that for some of the time where he was unable to complete his normal duties as a result of an injury he sustained outside of work hours.

I find that it was reasonable for Fiona, who was acting Co-ordinator at the material time, to ask Bret to take his accrued leave entitlements.

I find that nothing in the evidence is indicative of Fiona’s abuse, ridicule, sabotage of Bret’s work. Nor did she act with unjustified criticism or disrespect against Bret. I find that there was no attempt by Fiona “to turn” Ric Thompson against Bret, and I find that Ric and Fiona did not “gang up” against Bret.”

Finding - The Applicant being accused of bringing the Respondent into disrepute

“I have not been able to find breaches in relation to threats or sabotage as alleged by Bret. I find that there is no evidence (other than Bret’s mere assertion) supporting Bret’s claim that that there anything improper occurred during that meeting and afterwards. Further the statements made by Paula, Fiona or Ric were not reasonably capable of interpretation as harassment of Bret.”

Finding - Does not appear in the Applicant’s document - related to a separate complaint he is pursuing externally to the Respondent

“No finding required.”

Finding - Concerns of aggression and intimidation

“Having considered the available information I am unable to find that there is any evidence (other than Bret’s mere assertion) that Brett was abused or subject to ridicule or that his work was sabotaged or that there was a continuation of any harassment of him by Fiona. I am also unable to identify any breaches so outlined by Bret of the IW Code of Conduct.

I find that that Bret is clearly passionate about Social Media and its implication for IW and their Clients. As Bret has previously demonstrated in the course of this investigation into these Incidents he has allowed his own values and what he thinks should happen to cloud what is a reasonable communication by Fiona, who is his Supervisor in the workplace, that she leave early from a meeting.

I found Bret to be overly pedantic about the fact that Fiona said she needed to leave early and if she had said ten minutes early this would not have been so much of a concern.

As to the conversation between Bret and Fiona on the deck outside IW I find that Bret has been unable to provide specifics about Fiona’s abuse of him. He was not able to provide the words she said other than she was red in the face and used a malevolent tone and was nasty. I find that is was Fiona who was visibly upset by the incident on the deck and who was unable to continue her work day post the Social Media Meeting and as a result of being too upset went home for the rest of the day.

I find that from all the evidence, including my discussions with Bret that a reasonable person would conclude that Bret was attempting to upset Fiona in the first instance in questioning her in relation to her leaving early from the meeting (which she was entitled to do), and by asking if she had Ric’s permission (which she did not have to seek. Later (on the deck) he antagonised an already upset Fiona by repeatedly telling her that she was getting upset and red in the face.

I regard the evidence given by the witnesses Stuart and Sarah as accurate accounts of the incident.”

Finding - Does not appear in the Applicant’s document - related to a separate complaint he is pursuing externally to the Respondent

“No finding required.”

Finding - Being treated with mistrust

“I have found no compelling evidence (other than Bret’s mere assertion) that supports Bret’s claim of being treated with mistrust and I can find no breach of the IW Code of Conduct that can be substantiated.

I have found a continuing pattern of questioning by Bret both verbally and in writing through very lengthy e-mails, in which unreasonable demands are made and threats are stated to achieve the outcome Bret desires. In this case an initial lengthy email seeking explanation for the locked door and then demands in a second e-mail for a key to the office and threats stated about failure to provide a key or an explanation will be used as evidence of another bullying incident with Worksafe Queensland.

Through the mounting Incident claims by Bret I have found that where Bret does not agree with or get the answer he desires he agitates through repeated questioning (as exampled in the first Incident with TOIL) and this Incident also. By approaching his role in this way I have found Bret to be wearing down and frustrating his peers and Supervisor because so much of their time is spent responding to Bret’s e-mails or questions. I find that Sarah and Fiona are frustrated at the amount of their time they have to spend in responding to Bret and his demands for communication from them. This is time they are unable to spend in their core roles helping IW Clients.”

Finding - Sabotaging the Applicant’s ability to do his job effectively - turning work colleagues against the Applicant and violating principles of the Respondent business

“I have found no basis to Bret’s claim of Sabotaging My Ability to do My Job Effectively, Turning Work Colleagues Against Me & Violating Principles Of Inclusion Works. I have also been unable to identify any breaches of the WHS legislation or IW Code of Conduct.

I find whilst this was a highly emotive issue for those directly involved, at the periphery Inclusion Works had limited genuine opportunity to influence greatly any outcomes. This was a commercial arrangement with the IW Client and Brian Arnold, his business advisor. This was a particularly emotive issue for Bret as he feels those involved have been portrayed to the Community in a very bad way and that IW has in his opinion, a responsibility to communicate on behalf of them to the community to correct any misconceptions. I have found Bret’s reaction to this Incident to be consistent with his views and approach to the disadvantaged, which see him move to do everything he can to support them, including agitating against his employers directions and procedures. .

I find that Bret has once again not agreed with the response provided to him, in this case by Sarah (in her acting supervisor role). As Bret has demonstrated consistently, he has then commenced a process of agitation through email and verbal communication to overwhelm those he is working with in relation to the issue. I have found Bret has let his personal views and motivations toward the disadvantaged cloud what he is required to do in this situation which is to follow the reasonable direction of his supervisor.

I have also found that Bret does not respect Sarah and her position. On three separate occasions Bret has stated to me that he believes that Sarah does not have the required skills or experience, in his opinion, for her current role (as Senior Community Development Worker and his Supervisor). Bret stated on each occasion that she is 26, has no lived experience [sic], still lives at home and has no ideas of social justice principles or community development concepts. When I asked Bret about Sarah’s experience and qualifications he could not identify what they were.”

Finding - Use of the Respondent’s work vehicles for private purposes

“Having reviewed this Incident by conducting interviews and viewing related documents I find this Grievance (Incident 10) to be frivolous and vexatious.

Bret has been unable to provide any specific dates for the alleged breaches by Fiona of the IW Code of Conduct. After interviewing Bret and Fiona and reviewing the Motor Vehicle Logs I find there to be no breach of the IW Code of Conduct.”

Finding - Procedural Fairness

“I have found no basis to Bret’s claim that he has been denied procedural fairness in relation to any meeting he has complained of.”

Overall findings

[55] The overall investigation findings in part stated:

“After spending time with Bret through the interview process, I find that Bret presents as a person who is very passionate about the rights of people, particularly those who are disadvantaged. Bret has stated in Interview (BF 2) that he has dedicated his life to working with marginalised people and that he thinks about this all of the time, even at home. He has also stated that he is focused and likes to work intensely.

Bret’s Performance Review completed in January of this year highlights the need for Bret to work on his communication skills in a number of areas (language at times is too complex for members of staff and the community, being aware of the amount of attention that I seek from fellow staff).

Bret is all consumed in his work with Clients, is challenged at times with maintaining or undertaking IW’s operating policies and processes. Bret’s client notes are very extensive and Bret has been advised by Fiona that they are completed with far too much detail and need to be condensed. In the investigation interviews Bret has stated this same point, however he has indicated that this is the way he wants to complete Client notes and he is very clear in his response that this is how it will happen. I find this approach to be consistent with how Bret operates at IW, he has a personal view of how he thinks things should be and I have found that he adopts this as his approach, irrespective of the direction provided to him by his supervisor or any other more senior representative of the IW team or CoM.

Not using the Inclusion Works organisation and its policies and procedures or the organisational knowledge of its Management team or Committee Members and relying on his own view is an underlying theme throughout the investigation. This is also illustrated in this investigation process - after having a week to document his grievances Bret deciding he wanted to amend the document when he was asked to simply remove references to other Inclusion Works staff. Bret has taken it upon himself to completely re-do the document and take additional time in doing so.

I have found that Bret has demonstrated a pattern of grievance lodgement when he has not agreed with or complied with a reasonable request by IW Management. This is evidenced with discussions around the time to complete his report and dialogue with Leigh.

Upon reflection of all the information and discussion I have undertaken I conclude that what has evolved is the situation where Bret has not agreed with information or action and is using his belief system as the measure or standard. These issues have escalated to a point where Bret sees himself as being persecuted, rather than taking responsibility for his actions and operating in accordance with reasonable instruction, policies or procedures. This is particularly evident in relation to the quantity of written information (e-mail) he circulates and demands answers from or the constant verbal communication where he commands a large quantity of time from his Supervisor or other staff.

I have found both Sarah and Fiona have felt overwhelmed at the volume of communication they are requested to respond to by Bret. This demonstrates again Bret’s method of operation being based on Bret’s beliefs and needs and not being considerate of other Managers, Supervisors or employees and working in accordance of what is requested of him.

I have also found that the enormous number grievance breaches that Bret has sought to establish have impacted significantly on IW and in particular Fiona, but also Sarah. I found that Bret has taken a personal attack on Fiona that has done irrevocable damage to their working relationship.”

Consideration

[56] The two issues to consider, in relation to the evidence and submissions provided, are whether the dismissal was: harsh, unjust or unreasonable (s.385(b) of the Act); and, not inconsistent with the Small Business Fair Dismissal Code (s.385(c) of the Act).

[57] In considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account each of the matters in s.387 of the Act, as set out earlier.

[58] The Respondent was opposed to reinstatement and to compensation on the basis that the termination was not unfair and that the organisation is a small business operating with government funded projects.

[59] The Respondent stated the Applicant “only listens to directions from management or complies with policy procedures that suit him - he has one view of the world - his and his alone” 6

[60] The Applicant was provided with the outcome of the independent investigation and a copy of the report. He was provided with an extended paid period of 2 weeks to prepare a response to the show cause process as follows:

“Dear Bret,

RE OUTCOME OF INDEPENDENT INVESTIGATION BY MARY STEVENSON, HR BUSINESS ESSENTIALS

The Inclusion Works Committee of Management is in receipt of a report prepared by Mary Stevenson of HR Business Essentials into grievances actioned by you wherein you have claimed that you were the subject of various acts of Workplace Harassment/Intimidation.

In all some 9 "Incidents "were identified by Mary and she in turn has quite rightly reported on each and every one.

The report is lengthy and is attached for your attention and the CoM is formally inviting you to respond to the matters raised therein. We do not require or expect you to go over old ground as you have already been interviewed by Mary.

It is clear to the CoM that given Mary's findings that you have engaged in a grievance/complaint process against several of your colleagues and your actions can reasonably be considered as vexatious and frivolous and frankly can also be viewed as having outcomes which caused discomfort to those colleagues.

Furthermore Mary has found that you have acted contrary to instructions/directions provided to you and not used our policies and procedures but relied upon your own views as to how matters should be progressed or handled.

You have needlessly initiated a pattern of grievance lodgement when you have not agreed with or complied with a reasonable request by Management.

Needless to say this is most unsatisfactory and can no longer be tolerated. The CoM is of the firm view that grounds exist to terminate your services but wish to allow you time to respond.

Bret, in the opinion of the CoM you have engaged in actions that can be described as vexatious and frivolous in nature and have caused unnecessary harm to the organisation. Mary has also found that you have taken a personal attack on Fiona that has done irrevocable damage to the working relationship.

The Report is given to you in full to allow you to respond and in that regard you are directed that:

• The Report is confidential and is to treated by you as such;

• You are not to discuss the Report outside of taking Professional advice and

we do understand that you are a member of the ASU;

• You are not to contact Mary Stevenson;

• You are to respond in writing to the CoM by the close of business Friday 16

November 2012, by email to (addresses removed);

• The CoM has appointed Mr Gil Muir of Employer Services Pty Ltd (Brisbane) as its agent in this matter and he can be contacted by your professional representative on (phone number removed);

• Bret if we do not receive your written response by the close of business Friday

16 November 2012, or contact is not made with Mr Muir, the CoM will act to determine this matter without further involvement or input from you ;

• You will continue to be stood down on full pay until finalisation, and you are directed not to enter the IW workplace, or contact the IW staff or clients until further advised.

Yours faithfully

Paula Johnson

Chair

IW Committee of Management”

[61] The Applicant responded in a general sense to the report. He stated he had prepared a seventeen-page report but would not provide this at this stage but it would be retained for his mooted unfair dismissal application. His full response to the show cause letter is set out earlier as part of the Applicant’s submissions.

[62] As a result, the Applicant was terminated from his employment by letter effective 23 November 2012, as follows:

“Dear Bret,

Re Notice of Termination

I refer to your email to me this morning where in you refused to respond to the request to you in earlier correspondence from your employer to respond in writing to the findings by Mary Stevenson in her report.

You were forwarded a copy of the report to allow you to provide your response. You were advised in the letter attaching the report (dated 8 November 2012) that should the Committee of Management (COM) fail to receive your written response (now by an extended date) the COM would act without any further involvement from you

Responding to your former lawyer's (Mr Gregory Harris) request for an extension, same was granted until 4.00pm today.

You have made it clear in today's email to me that you would not prepared to negotiate a deal or even consider one and did advance on a "without prejudice" basis to Mr Harris the possibility of a negotiated separation. That is now not open to our client of course given your refusal to even entertain the notion.

Therefore I have reported all these developments to your employer.

Bret I am now instructed with the authority of the COM to advise you that your services are hereby terminated with effect as from 4.00pm today and you will be paid 3 weeks wages in lieu of notice.

All other monies owing to you will also be paid out accordingly.

Yours faithfully

Gil Muir

Authorised representative of Inclusion Works”

[63] The Applicant stated that the significant length of his statement and submissions provided for this case are testimony that he could not have produced a detailed response in the two weeks he had off work to do so, prior to the dismissal.

[64] The Applicant was aware his job was in jeopardy as evidenced by his reluctance to make a real attempt to ‘show cause’; he was already focussed at that stage on taking on the Respondent in a hearing, rather than endeavouring to mend the employment relationship, or to reasonably provide detail of the issues he had with each of the findings to allow the Respondent to consider such.

[65] The Respondent’s witness statements have been examined in conjunction with the series of issues the Applicant documented in his submission and his reply submission.

[66] The Applicant emphasised at the hearing that he was not seeking reinstatement, but that a purpose of his application was to stop the serial bullying in the organisation. He also sought compensation. Mr Muir stated that the Respondent had endeavoured to come to mutually agreeable terms to allow an acceptable finalisation of the employment relationship. The Applicant rejected these endeavours. The Applicant stated he could only have continued at the organisation if Mr Thompson, Ms Saunders and the committee of management were all replaced in their roles.

[67] The Applicant’s predominate case is that he was the subject of bullying which has been a feature of the Respondent’s management action for some time. The Respondent stated that the Applicant “being a totally disaffected ex-staff member himself, has drawn to him (or trawled for like persons) other, it appears, totally disaffected ex-staff”. 7

[68] The Applicant at the hearing was given considerable flexibility to present additional evidence in relation to his allegations of serial bullying. He tendered two witness statements of ex-staff members, Ms Amanda Pink and Ms Susan Cooper. Ms Pink’s witness statement was tendered but challenged as to relevance by the Respondent. Further, a statement of Ms Susan Cooper was provided - she was the support person for the Applicant at the hearing and was permitted to ask a number of questions for the Applicant. It must be noted that this determination does not relate to the circumstances of Ms Cooper’s employment with the Respondent. It is a decision regarding the events and circumstances specific to the Applicant’s dismissal. The Applicant argued that a culture of bullying caused his termination and that such bullying had occurred on a ‘serial’ basis at the organisation for many years. Apart from the Applicant’s evidence in relation to the alleged bullying, the evidence of the other witnesses related to a period ten years prior and one incident three years ago. No specific information was provided and no connections apart from the commonality of Mr Thompson’s employment spanning the entire period could be found between the Applicant’s case and these other allegations.

[69] The statement of Ms Cooper alleging past bullying was largely her observations of various exchanges that occurred between other staff some time ago. Only the first names of these staff were provided and these people had not, in the majority complained, to her or management about being bullied and none had been advised that she was referring to them in the proceedings in this way. None of these ex-staff members who were referred to, had provided their authority for the Applicant or Ms Cooper to raise any concerns of bullying on their behalf. Ms Pink’s statement provided similar evidence. Whilst these statements were accepted, they do not provide evidence of alleged bullying to any level of specificity that can be relied on, in relation to the Applicant’s case.

[70] In addition, both of these witnesses were employed, long before the Applicant and their allegations did not provide any connection to the context of the employment environment under consideration with the Applicant. The Applicant’s case specifically related to the defined incidents and complaints, he raised, that formed the basis of the report. The resulting report is detailed and provides a logical examination of the Applicant’s concerns.

[71] The Applicant stated his employment was all going well until issues arose between him and Ms Saunders in the period May to June 2012. The Applicant in his submissions stated that around this time, part of his motive for sending emails (the volume of which colleagues found overwhelming) was to form the basis, if required, of an unfair dismissal application. This admission by the Applicant, related to his conduct a number of months prior to his dismissal, when he was dedicating time to preparing material to dispute his anticipated dismissal. His view of the employment relationship was inconsistent to that of the Respondent’s, who on the material only came to the conclusion to terminate the Applicant’s employment, after the events preceding the dismissal, made an ongoing employment relationship unworkable. The report prepared after an examination of the range of the Applicant’s allegations and interactions with staff, provides findings, which after consideration of such in the absence of the Applicant providing an appropriate response lead to the firm conclusion that an ongoing employment relationship with the Applicant was unworkable.

[72] The Application has been considered against the Code and the criteria in s.387 of the Act.

s.387(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)

[73] The report clearly indicates the underlying reasons for the Applicant’s dismissal as advised to the Applicant in the ‘Show Cause’ letter, namely, that the Applicant had engaged in a grievance/complaint process against his colleagues. The range of these complaints by the Applicant could not be substantiated and undermined the working relationship. The series of complaints had the effect of destabilising these employment relationships and reducing the effectiveness of the small business organisation. Further, the actions of the Applicant were viewed to be vexatious and that he demonstrated a disregard for the instructions or directions given by his supervisors. He also preferred his own view of progressing matters contrary to the Respondent’s policies and procedures.

[74] Based on the evidence, the report and materials, the Respondent had a valid reason for the Applicant’s dismissal.

[75] Further consideration has also been given to the Applicant’s failure or refusal to respond to the show cause process. The Applicant, at hearing, attempted to submit that he had only been directed to “respond” and that that word was capable of several meanings. In the Applicant’s submission he was not requested to respond to any specifics in the show cause process.

[76] This submission clearly cannot be accepted. The issuing of a show cause letter makes it abundantly clear to any reasonable employee that their employment is in jeopardy. The entire purpose of a show case process is to allow an employee the opportunity to respond to specific allegations regarding their conduct or the future of their employment. The Applicant was provided with a detailed report addressing the allegations. The Applicant was asked to “respond”. The definition of “respond” is to “say something in reply”.

[77] A reasonable employee would have understood the importance of responding. The Applicant was given further time to respond. He did not articulate to the Respondent why he could not respond or ask for clarity as to what they meant by respond, if there was any doubt as to what that meant. The Applicant simply “responded” by his email criticising, in general terms, the report. The Applicant advised the Respondent that he had responded in “detail” by way of a 17 page report, but that he would not provide it to the Respondent “at this time”.

[78] This refusal to respond, or to take any action that a reasonable employee would have when faced with this series of events, also formed a valid reason for termination. Further this obstinate position on the part of the Applicant, is symptomatic of the difficulties he brough to his employment relationship with the Respondent.

s.387(b) — whether the person was notified of that reason

[79] The Applicant was notified of the reason for the dismissal. The Applicant was provided with the report with the details of the Respondent’s position, a show cause letter and then a further letter of correspondence.

s.387(c) — whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[80] The Applicant was provided with the consultant’s report and given two paid weeks to respond.

s.387(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

[81] There was no refusal of a support person. The Applicant was represented by a lawyer at the time of dismissal. The lawyer sought and achieved the week’s extension to the reply period. The lawyer had engaged in discussions with Mr Muir regarding the dismissal.

s.387(e) — if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[82] This matter did not relate to the performance of the Applicant’s core duties with clients, but the process he adopted with his colleagues. Discussions had been held with the Applicant as his grievances had developed. However, importantly, the Applicant was clearly directed, in writing, to respond to the show cause process. He submitted that this process did not require the detailed report to be met with anything but a general response and whilst in the two weeks of paid time he had prepared a seventeen-page report, he stated he was withholding this from the Respondent, for his unfair dismissal application. The Applicant was aware that a failure to respond would result in the Respondent determining the matter in the absence of his response. The Applicant only provided a general response.

s.387(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 s.387(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

[83] The Respondent is a small business without dedicated human resource specialists. The process of the dismissal was consistent with the Code. The investigation was conducted by an external party in response to the Applicant’s complaints. The report comprehensively addressed the issues raised. The process was transparent and the Applicant was afforded natural justice.

[84] Appropriate consideration in the dismissal was made of the effect that the Applicant’s conduct was having on the other staff and the organisation’s operations.

Decision

[85] The Applicant deliberately contributed by way of his conduct in sending constant, lengthy, emails, behaving in a argumentative manner to other staff members and disregarding the directions of his employer, the standing of his superiors, in the knowledge that this was certain to cause aggravation and upset to his colleagues.

[86] There was a valid reason for the dismissal and the Applicant was afforded procedural fairness. The Applicant had made the employment relationship unworkable. The Applicant’s behaviour in his interpersonal employment interactions was disappointing, as all of the reports regarding his ‘community’ work with clients were very favourable. The report and his colleagues spoke of his passion for this work. Despite the issues that arose with his colleagues, the separate work of the Applicant with his clients was not criticised. It is hoped that given his devotion to this part of his work, he will gain further work in the ‘community’ sector.

[87] The parties did not provide detailed submissions regarding compliance with the Code, as set out earlier. However given the findings regarding the dismissal as not being harsh, unjust or unreasonable and the reasoning provided for such, the dismissal is found, in accordance with s.388(2) of the Act, to be compliant with the Code.

[88] For the aforementioned reasons, the Commission is not satisfied that the Applicant’s dismissal was harsh, unjust or unreasonable, and that it was not inconsistent with the Code. Therefore, the application is dismissed. I Order accordingly.

COMMISSIONER

1 Transcript PN1853-PN1857.

2 Applicant submissions, filed 22 March 2013, at 390-400.

3 Ibid at 400-440.

4 Ibid at 450-470.

5 Applicant response to Respondent submissions, filed 22 April 2013, at 300-330.

6 Respondent submissions at paragraph 3.

7 Respondent submissions at paragraph 5.

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