Christopher Mulroney v Alfred James & Sons Pty Ltd T/A Alfred James Funeral Homes

[2015] FWC 6215

[2015] FWC 6215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Mulroney
v
Alfred James & Sons Pty Ltd T/A Alfred James Funeral Homes
(U2015/8433)

DEPUTY PRESIDENT GOSTENCNIK ADELAIDE, 9 SEPTEMBER 2015

Application for relief from unfair dismissal; swearing and threatening behaviour directed at supervisor; whether valid reason; conduct engaged in was a valid reason; procedure adopted by employer was appropriate and fair; previous warnings were justified; consideration of after dismissal conduct; dismissal was not unfair; application dismissed.

Introduction

[1] Christopher John Mulroney (the Applicant) was dismissed from his employment as a Funeral Consultant with Alfred James & Sons Pty Ltd (the Respondent) on misconduct grounds related to an incident on 17 May 2015 involving another employee, Ms Diane Sloan. The dismissal took effect on 27 May 2015. 1 On the termination of the employment the Applicant received a payment of three weeks’ pay lieu of notice, together with a payment for outstanding wages and accrued entitlements.2 The Applicant had been employed by the Respondent since 26 September 2011.3

[2] On 12 June 2015, the Applicant applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Turning first to deal with the initial matters which must be decided before the merits of an application are considered. 4 It is not in dispute, and I find that:

• The application was made within the time prescribed in s.394(2);



• The Applicant was, at the date of his dismissal, protected from unfair dismissal within the meaning of s.382 in that the Applicant was an employee of the Respondent who had completed a period of employment with the Respondent which was greater than the minimum period of employment as set out in s.383(a); and



• the Funeral Industry Award 2010 (the Award) covered the Applicant in his employment with the Respondent;



• The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and



• The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act. 5

[3] I have decided that the Applicant’s dismissal was not unfair and that his application should be dismissed. These are my reasons for that conclusion.

Factual background, context and findings

[4] The Respondent conducts a funeral business providing funeral planning and related services to families of deceased persons. Mr Philip Murray is employed by the Respondent as its Funeral Manager. 6 The Applicant was employed as a Funeral Consultant. Ms Sloan is employed by the Respondent as a Funeral Co-ordinator and was the Applicant’s supervisor on 17 May 2015.7

[5] The Respondent has promulgated a number of workplace policies including a Code of Conduct 8 and a Workplace Harassment and Bullying policy.9 The Applicant acknowledged that he had read and clearly understood these policies through an instrument signed by him on 3 May 2012.10

[6] The incident which ultimately resulted in the termination of the Applicant’s employment by the Respondent occurred on Sunday, 17 May 2015. The Applicant commenced work on that day at approximately 10:00am. 11 Ms Sloan was working in the office of the Respondent’s premises together with Ms Renee Fiegert, another of the Respondent’s funeral consultants.12 Two other employees of the Respondent were also working at the Respondent’s funeral home on this day.

[7] At approximately 12:00 noon on 17 May 2015 the Applicant was observed by Ms Sloan to be walking past the office. 13 Whilst doing so, Ms Sloan asked the Applicant what he was having for lunch.14 The Applicant said words to the effect that “I don’t know, what are the girls having?” Ms Sloan told the Applicant that the other employees had left to get their lunch as they could not find the Applicant.15 According to the evidence given by Ms Sloan, the Applicant:

● exploded and said “I can’t believe they couldn’t find me, I’ve been in the cottage cleaning my arse off while you’ve been sitting around doing nothing” and he pointed his finger at Ms Sloan and said that she was the worst offender;

● became louder, pointing his finger and speaking so quickly that Ms Sloan could not understand all that he was saying;

● looked menacing and very angry and Ms Sloan felt intimidated; and

● then stormed out of the office. 16

[8] During cross-examination, Ms Sloan explained what she meant when she used the word “exploded” to describe the Applicant’s reaction:

MR MULRONEY: Now it gets a little bit complicated after that because you then say:
Chris exploded.

Can you define for the court your definition of an explosion? You became very angry and you were pointing your finger and yelling.

How did I point my finger? Can you show me how I pointed my finger? You were stabbing the finger at me like that.

See, you've got to be careful because when you point the finger with the palm upwards it is defined that that is an aggressive affront to a person. When you're just waving the finger and everybody knows I talk with my fingers. Most of us do. There is a difference. Was I driving a point or was - - -

MR MURRAY: Deputy President, am I allowed to comment on this?

THE DEPUTY PRESIDENT: You'll get an opportunity to ask Ms Sloan in re-examination.

MR MURRAY: Thank you.

MR MULRONEY: So was I just pointing or was I forcefully with the back of my hand facing upward making an aggressive attack upon you with the gesture of my finger? The second option.

So waving my hand. Just - - -? You were angry, you were angry.

Well I don't think I was but that is your opinion. Now you've already indicated that I exploded. In point 8 you say I got louder, apparently still pointing my finger -

and was speaking so fast I couldn't understand what he was saying. He looked menacing and very angry and I felt intimidated.

How? Exactly what I said, Chris.

How did you feel intimidated? Did you feel physically intimidated, did you feel mentally under threat? Was it something that you would dial - - -? I felt intimidated Chris. Your behaviour was irrational, unpredictable and intimidating. 17

[9] Ms Fiegert was working in the office at the time of the incident at a desk near Ms Sloan. Ms Fiegert corroborated Ms Sloan’s evidence and said that the Applicant engaged in uncontrollable yelling, was shaking and his pupils were dilated. 18 Ms Fiegert elaborated on this evidence during cross-examination:

You indicated I think in your statement to Rachel that my eyes were dilated? Yes, correct.

How could you determine - - -

MR MURRAY: That's not part of the witness statement given by Renee.

MR MULRONEY: I accept that.

THE DEPUTY PRESIDENT: Well it is, paragraph 6 says that? Yes, his pupils were dilated.

MR MURRAY: My apologies.

MR MULRONEY: I was shaking, "and his pupils were dilated". How could you tell? The way your eyes were open, Chris.

But in relation to where you were sitting to my left and approximately 15 to 20 feet away, I think that you're thinking you may be because you had an interpretation of what you were seeing that maybe was not something that you would have expected, and I'm not saying I was angry, but you perhaps didn't expect somebody to come back and defend themselves, and maybe you were looking for something that wasn't there. Because it would be almost impossible for you sitting over there to see, especially when I didn't once look in your direction? No, but I looked directly at you, exactly how I'm sitting now is exactly how I would be looking at you.

You were over to my left and I was looking straight at Di. You can't possibly expect to see what my eyes - I have hazel eyes. From a distance black and hazel merge together. I'm just putting it to you that I don't think you saw what you think you saw? You can think that but that's how I saw you, Chris, and it wasn't a nice sight. 19

[10] According to the Applicant, he was offended and hurt at being excluded by the staff members and that this was one incident too many. He said that whilst he waved his finger at Ms Sloan it was not in a menacing fashion but rather it was his habit to use his hands whilst expressing himself. 20

[11] Although the Applicant maintains that he did not “explode” or shout during the incident with Ms Sloan, the variable accounts of the incident are generally consistent. However I prefer the evidence given by Ms Sloan and Ms Fiegert as more accurately reflecting that which occurred during the incident on 17 May 2015 to the evidence given by the Applicant where that evidence differed in any material respect. During the proceedings the Applicant displayed a tendency to play down his responsibility for many of the events which were the subject of evidence, including his failure to accept reasonable propositions put to him by the Respondent during cross-examination about the abusive nature of the content of emails sent by the Applicant and Facebook posts made by the Applicant following his dismissal. 21 This affects his credibility. Secondly, the Applicant’s attempts to distinguish between pointing his finger and waving his finger at Ms Sloan during the incident22 is in my view, a poorly disguised attempt to avoid taking responsibility for his conduct and to play down the nature of the altercation. In the circumstances of the altercation it is a distinction without a difference.

[12] Both Ms Sloan and Ms Fiegert gave credible evidence which was consistent and when challenged during cross-examination were both able to explain their description of the incident and the language that they used to describe the Applicant’s conduct. Ms Sloan’s evidence was also consistent with the complaint that she made to Mr Murray about the Applicant’s conduct in the evening of 17 May 2015 by email. 23 Ms Sloan’s evidence is also consistent with the record of interview prepared by Ms Rachel Pierro, a human resources consultant engaged by the Respondent, during her interview of Ms Sloan on 19 May 2015.24 The Applicant did not challenge the accuracy of those notes. The email and the notes represent a contemporaneous record of the events. I therefore accept the evidence of both Ms Sloan and Ms Fiegert is truthful. I am therefore satisfied that the incident as described by Ms Sloan and Ms Fiegert occurred. I am also satisfied that the Applicant’s conduct during the incident was inconsistent with the Respondent’s workplace harassment and bullying policy and in breach of its Code of Conduct.

[13] Approximately 30 minutes after the incident described above, Ms Sloan went to look for the Applicant and found him in the lunchroom. 25 According to Ms Sloan’s evidence she asked the Applicant about what had happened during the earlier incident and the Applicant yelled at Ms Sloan and said words to the effect “I’ve got you worked out, you’re divisive and vexatious”, and that he uttered other words that Ms Sloan could not make out.26 Ms Sloan’s evidence was that the Applicant was so angry, he was incomprehensible and he would not allow Ms Sloan to say anything, and that Ms Sloan then told the Applicant that his attitude was unacceptable and she left.27

[14] The Applicant’s evidence was that when Ms Sloan sought out the Applicant he was in the middle of eating his lunch. He admitted that he told Ms Sloan that she was vexatious and cruel. 28 He explained that he was still angry and hurt by what had occurred, that he felt that he had been excluded by the other employees, but he did not provide any other explanation for his response to his supervisor, whose only “crime” at the time was to seek out the Applicant in order to try to clarify his earlier outburst, a step I would expect any supervisor in the circumstances to have taken.

[15] The differences in the respective accounts are at the margins but to the extent that there are any material differences, then for reasons already given in relation to the disputed accounts of the earlier incident, I prefer the evidence given by Ms Sloan, including the content of her email complaint and the notes of her subsequent conversation with Ms Pierro.

[16] There were several prior incidents which require some brief attention. The first is an incident that occurred on about 30 July 2014 involving the unauthorised use of the Respondent’s motor vehicle. The Applicant was counselled in relation to this conduct which he acknowledged on 31 July 2014. 29 The principal allegation made in relation to that incident was that the Applicant took the Respondent’s motor vehicle without permission from senior management for personal use overnight. It is not in dispute the Applicant drove the motor vehicle from his home and work and that he failed to complete the appropriate logbook. The Applicant contended that he sought, ultimately unsuccessfully, to obtain permission and felt that the Respondent had ignored this fact and effectively accused him of “larceny”.30

[17] With respect to the Applicant, the Respondent did no such thing and the Applicant misses entirely the point that the Respondent was making through its performance counselling in relation to that incident. That the Applicant sought to obtain permission to use the motor vehicle is to his credit. But having been unsuccessful in that attempt, it was not open to him to take and use the Respondent’s motor vehicle. He was not authorised to take and use the motor vehicle but nonetheless did so. The conduct warranted the action taken by the Respondent and its action was an appropriate and proportionate response to the conduct in which the Applicant had engaged.

[18] The second incident occurred on or about 8 September 2014 and was the subject of a final warning given to the Applicant arising from that which was described as “defaming comments about the company and management to another staff member and threatening physical violence to a manager at Alfred James. 31 By email of 8 September 2014 another employee of the Respondent communicated to Mr Murray that during a discussion on 6 September 2014 with the Applicant about a requirement that the Applicant work at a funeral commencing at 1:00pm on 8 September 2014 and that the work schedule could not accommodate a late start arising from the Applicant’s medical appointment, the Applicant had become irate and had said that “Alfred James and Phil were negligent in their duty of care” and that he was “close to punching Phil in the face”.32

[19] The Applicant gave evidence that during the discussion he said words to the effect: “it makes me want to clock someone”. 33

[20] The complainant was not called to give evidence and so it is not possible to properly test the allegation however even on the Applicant’s version of events, the comments made in the context of the discussion are likely to have been understood by a reasonable person as being a reference to Mr Murray or some other person in a position of management with the Respondent. 34

[21] Later that same day during a telephone discussion between Mr Murray and the Applicant, about the Applicant’s access to a suit, Mr Murray gave evidence that the Applicant became quite aggressive and shouted and swore at him. 35 The Applicant’s evidence was that whilst he swore during the telephone discussion with Mr Murray he did not swear at him.36 This altercation was also the subject of the final warning earlier mentioned.

[22] Whilst it is unnecessary for me to resolve the conflicting accounts, it is clear that the Applicant was upset during the telephone discussion and that he swore. Such conduct in a work environment or dealing with co-workers is inappropriate all the more so when the conduct occurs during a conversation with one’s manager. I am satisfied on the evidence that the final warning given to the Applicant in relation to both of the aforementioned incidents was an appropriate response and was justified.

[23] Evidence was also given about documentation incorrectly provided to two families of deceased persons by the Applicant. Save that this incident was mentioned in the letter of termination, the incident is expressly not relied upon by the Respondent to justify its decision to dismiss the Applicant, 37 and so I need not deal with that issue further.

[24] The Respondent engaged Ms Pierro to conduct an investigation in relation to the complaint made by Ms Sloan. Ms Pierro gave evidence about the steps that she took to investigate the complaint and produced notes of her investigation interviews. 38

[25] By letter dated 25 May 2015 the Applicant was advised of Ms Sloan’s complaint, the nature of the allegations that were made and that he was required to attend a meeting which was to be scheduled for 4:00 pm on 26 May 2015 where he would be given an opportunity to respond to the allegations. He was also invited to bring a support person to the meeting if he wished. 39 The Applicant attended the meeting on 26 May 2015 but did not bring a support person.

[26] The details of the discussions at the meeting on 26 May 2015 are recorded in Ms Pierro’s witness statement and notes of the meeting prepared by her, which were attached thereto. 40 The accuracy of the notes of the meeting and Ms Pierro’s evidence about the meeting were not seriously challenged by the Applicant, and he accepted that during that meeting he was given an opportunity to explain his version of events and respond to the allegations.41 The Applicant suggested however that he should have been separately interviewed and not summoned to a meeting which was described in the letter of 25 May 2015 as a “notice of formal disciplinary meeting”.42 Whilst the reference to a disciplinary meeting in the subject matter line of the letter is unfortunate in the sense that the purpose of the meeting was to give the Applicant an opportunity to respond to the allegations, I am satisfied that the substance of the letter makes the purpose of the meeting clear. The fifth paragraph of the letter provides:

“You are required to attend a meeting on Tuesday 26th May at 4 pm to respond to the above allegations, which are being addressed under the workplace harassment and bullying policy formal resolution process. You can bring a support person if you wish.” 43

[27] I am also satisfied on the evidence that the Applicant was, during the meeting on 26 May 2015, given a fair opportunity to respond to the allegations that had been made.

[28] Ms Pierro gave evidence that following the meeting, she consulted with Mr Murray and they concluded that the Applicant had engaged in the conduct as alleged and that the conduct was in breach of the Respondent’s Code of Conduct. 44 For the reasons earlier given, this conclusion was not only open to the Respondent on the evidence it had gathered, it was in my view, a correct conclusion.

[29] The Respondent convened a further meeting with the Applicant on 27 May 2015 to discuss its conclusions with the Applicant. 45 Ms Pierro gave evidence that after setting out the findings and conclusions arising from her investigation of Ms Sloan’s complaint, the Respondent intended to hear from the Applicant about any matters that it should take into account by way of mitigation but that the Applicant left the meeting before it had concluded.46 The Applicant said that he was told that the Respondent had decided to terminate his employment and so felt nothing could be achieved by remaining at the meeting.47 Ms Pierro accepted that she had said that a decision to terminate had been made but maintained that the Respondent was open to be persuaded on a different outcome had the Applicant stayed in the meeting and given factors by way of mitigation.48

[30] It seems to me on balance that the Applicant was told that his employment was terminated and that is why he left the meeting. Having advised the Applicant of his termination and taking into account the fact that Ms Pierro gave evidence that the day before the termination of the Applicant’s employment she had discussed with the Respondent the impact of the Applicant’s conduct on other staff and that Ms Fiegert had told her that she did not want to work with the Applicant because of his unpredictable behaviour, 49 I very much doubt and do not accept that on 27 May 2015, that the Respondent was open to an outcome other than the termination of the Applicant’s employment. However, taking into account the gravity of the conduct combined with the Applicant’s history discussed earlier in these reasons, I do not place any significant weight on this fact.

[31] The Applicant was subsequently given a letter dated 27 May 2015 which set out in detail the findings of the investigation and the reason for his dismissal. 50 Although his dismissal took effect on that day, the Respondent paid the Applicant 3 weeks’ pay in lieu of notice.51

Consideration and application of the statutory framework

Protection from Unfair Dismissal

[32] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of his dismissal, protected from unfair dismissal under the Act.

[33] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

‘382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.’

[34] There is no dispute, and I am satisfied, that the Applicant was, on 27 May 2015, protected from unfair dismissal within the meaning of s.382.

Was the dismissal unfair?

[35] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[36] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s.386 of the Act. As I indicated earlier in these reasons, the Small Business Fair Dismissal Code did not apply to the Respondent and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.

Harsh, unjust or unreasonable

[37] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:

‘387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

(h) any other matters that the FWC considers relevant.’

[38] I am obliged to consider each of these matters in reaching my conclusion and I do so below, having regard to the factual findings earlier made. 52

[39] The ambit of the words ‘harsh, unjust or unreasonable’ in the context of a dismissal was explained in Byrne v Australian Airlines Ltd  53by McHugh and Gummow JJ as follows:

‘. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’ 54

[40] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.

[41] The substance of the Applicant’s argument that his dismissal was harsh, unjust or unreasonable is that the Respondent did not take sufficient account of the Applicant’s mental illness and its impact on his conduct. He maintained that the Respondent took an overly literal and technical approach to its policies and applied those policies to the Applicant’s conduct in an overly strict approach. The Applicant maintained that the termination of his employment was a “sledgehammer tactic” and that the Respondent avoided mediation and other corrective processes. 55

[42] The Respondent submitted that its dismissal of the Applicant was not harsh, unjust or unreasonable and that it had a valid reason for the Applicant’s dismissal related to his conduct. It submitted that it notified the Applicant of the reason and gave him an opportunity to comment on the reason. It maintained that it did not have a dedicated human resources function but adopted a procedure that was fair and appropriate and that the Applicant’s conduct justified dismissal.

[43] I have considered the competing submissions in the context of my earlier findings and in my consideration of each of the criteria in s.387 of the Act below.

Valid reason - s.387(a)

[44] There must have been a valid reason for the dismissal of the Applicant related to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 56 The reason should be ‘sound, defensible and well founded’57 and should not be ‘capricious, fanciful, spiteful or prejudiced.’58 Where, conduct of the Applicant is relied upon to justify its decision to terminate his employment, I would need to be satisfied that the conduct as alleged occurred.59 A mere suspicion of conduct does not amount to a valid reason.60

[45] The reason for the Applicant’s dismissal related to his conduct.

[46] The factual findings that I have earlier referred to in these reasons, support a conclusion that the Applicant had engaged in the conduct that was the subject of a complaint from Ms Sloan. In any view the conduct was serious and inappropriate and I well understand why Ms Sloan felt intimidated 61 during the first altercation on 17 May 2015. As I have already indicated, I am satisfied that the conduct was contrary to the Respondent’s Code of Conduct and that the Applicant was well aware of his obligations under the Code of Conduct. Even absent such a Code of Conduct, the conduct engaged in was not appropriate. The Applicant grossly over reacted to something done by other employees, over which Ms Sloan had no control. The conduct was threatening and its seriousness is amplified given that Ms Sloan was the Applicant’s supervisor. The Respondent’s reason for dismissal related to this conduct. I am satisfied that the reason was a valid reason.

Notification of the valid reason - s.387(b)

[47] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made 62, in explicit terms,63 and in plain and clear terms.64 In Crozier v Palazzo Corporation Pty Ltd65, a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.’ 66

[48] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason in s.387(c), involves a consideration of whether procedural fairness was afforded to the Applicant before his dismissal was effected. Satisfaction of the notification requirement will usually require a straightforward factual inquiry to be made, namely: what was the Applicant told about the reason for the dismissal, before the dismissal took place?

[49] The Applicant was notified of the reason the Respondent relied on for the dismissal. This occurred at the meetings on 26 and 27 May 2015 and in correspondence to the Applicant dated 27 May 2015.

Opportunity to respond - s.387(c)

[50] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. The consideration of whether and to what extent that opportunity was given is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality. 67 In Pitts v AGC Industries Pty Ltd,68 a Full Bench of the Commission said:

‘In considering whether the Commissioner was satisfied that the dismissal of the Appellant was harsh, unjust or unreasonable the Commissioner was required to take into account, inter alia, whether the Appellant was given an opportunity to respond to any reason related to his capacity or conduct. This opportunity must have been afforded to the Appellant before a decision to dismiss is made. The process involved in providing the Appellant with such an opportunity does not require formality and is to be applied in a common sense way, to ensure that the Appellant has been treated fairly. In this regard we reject so much of the Appellant’s submissions which asserts that this requires an employer to conduct a meeting with the employee to inform the employee of the reasons for the proposed dismissal or otherwise provide the employee with an opportunity to address the concerns in writing.’ 69   (Citations omitted)

[51] On the factual findings I have earlier made, the Applicant appears to have been given ample opportunity to respond to the reason for his dismissal. Allegations of conduct were put to the Applicant on 26 May 2015 and he provided his response to the allegations. The allegations provided the reason for the dismissal. Again on 27 May 2015, the Applicant was given an opportunity to respond to the reason. Once again, this consideration is concerned with affording an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. As I have earlier noted this second opportunity was somewhat circumscribed because it seem clear by that stage that the Respondent had not only determined to terminate the employment but had advised the Applicant of that fact.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[52] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. It is clear from the plain language of s.387(d) that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, the section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 70 It may well be appropriate in some cases to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present.

[53] It seems clear that there was no refusal by the Respondent to allow the Applicant to have a support person present to assist in the discussions on 26 and 27 May 2015 relating to his dismissal. To the contrary, the Applicant was advised in writing on 25 May 2015 that he could bring a support person, but elected not to do so.

Warnings regarding unsatisfactory performance - s.387(e)

[54] If 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. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 71 As I have earlier indicated the Applicant engaged in past conduct for which he received warnings. The warnings clearly spell out for the Applicant, the conduct that he had engaged in, the corrective steps required and the consequences of further conduct contrary to the Respondent’s policies.

Impact of the size of the Respondent on procedures followed - s.387(f)

[55] It seems to methat the Respondent is best described as a medium-size employer. There is no evidence that the Respondent’s size, in and of itself, affected the procedure adopted by the Respondent in effecting the dismissal. In my view, the procedure adopted by the Respondent in the lead up to the dismissal and in effecting the dismissal was appropriate and fair.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[56] Conversely,the absence of dedicated human resource management or expertise in an employer’s enterprise clearly had an impact on the procedures followed by Respondent in effecting the dismissal. The Respondent did not have a dedicated human resources management specialist or expertise in its employ. Ms Pierro was engaged by the Respondent to provide it with human resources advice. In my view the Respondent was well served by Ms Pierro in her conduct of the investigation and in the advice that she provided. This enabled the Respondent to adopt a process that, as I have already observed. was appropriate and fair

Other relevant matters - s.387(h)

[57] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant.

[58] As I have already observed the Applicant maintained that the Respondent did not take sufficient account of his mental health in effecting the dismissal or in its dealing with his conduct. Mr Murray maintained that the Applicant did not inform the Respondent of his mental illness at any stage and that he was not aware of the illness until after the termination. I am not satisfied that the Applicant has established that he informed the Respondent of his mental illness, and in any event, the Applicant offered no medical evidence that his conduct towards Ms Sloan was caused or affected by his mental illness.

[59] I have had regard the Applicant’s length of service which is a relatively short period.

[60] I have also taken into account that the Respondent seems to have shown earlier tolerance of misbehaviour that might in and of itself have founded a valid reason for dismissal.

[61] I have also taken into account the vitriolic emails sent and Facebook posts made by the Applicant 72 following his dismissal. These demonstrate that the Applicant accepts no responsibility for his conduct and has little regard for the impact on others of his words and actions. The emails and Facebook posts reflect poorly on the Applicant. The Applicant’s refusal to acknowledge them as attacking or abusive, 73 when on their face they clearly are, also reflects poorly on him. This conduct reinforces the Respondent’s decision to terminate the Applicant’s employment.

Conclusion

[62] For the reasons earlier given, I am satisfied that dismissal of the Applicant by the Respondent was not harsh, unjust or unreasonable and therefore it was not unfair. The application should therefore be dismissed.

[63] An order dismissing the application is separately issued in PR571669.

DEPUTY PRESIDENT

Appearances:

C Mulroney on his own behalf

P Murray for the Respondent.

Hearing details:

2015.

Adelaide:

September 7.

 1   See Exhibit 7, attachment PM 10

 2   Ibid

 3   Exhibit 1 at 1.1 and employment separation certificate attached thereto

 4   See s.396

 5   Transcript PN 26 – PN 28

 6   Exhibit 7 at [1]

 7   Exhibit 4 at [1]-[2]

 8   Exhibit 7; attachment PM 6

 9   Exhibit 7; attachment PM 7

 10   Exhibit 7; attachment PM 8

 11   Exhibit 4 at [3]

 12   Ibid at [4]

 13   Ibid at [5]

 14   Ibid

 15   Ibid at [6]

 16   Ibid at [7] – [9]

 17   Transcript PN 310 – PN 323

 18   Exhibit 5 at [4] – [9]

 19   Transcript PN 381 – PN 389

 20   Transcript PN 142; PN 145; PN 156; PN 313 – PN 314

 21   Transcript PN 233 – PN 259

 22   Transcript PN 313 – PN 314

 23   Exhibit 7; attachment PM 4

 24   Exhibit 6 at [12]; attachment RP 1

 25   Exhibit 4 at [9]

 26   Ibid at [10]

 27   Ibid and [11]

 28   Transcript PN 150

 29   Exhibit 7; attachment PM 18

 30   Transcript PN 98 – PN 99

 31   Exhibit 7; attachment PM 21

 32   Ibid; attachment PM 20

 33   Transcript PN 115

 34   Transcript PN 625 – PN 637

 35   Exhibit 7 at [29]

 36   Transcript PN 124

 37   See exhibit 7; attachment PM 10 at p 3

 38   Exhibit 6 at [11] – [25]; attachment RP 1 and exhibit 7; attachment PM 9

 39   Exhibit 7; attachment PM 5

 40   Exhibit 6 at [20] – [22]; attachment RP 3

 41   Transcript PN 661 – PN 667

 42   Transcript PN 132

 43   Exhibit 7; attachment PM 5

 44   Exhibit 6 at [23] – [24]

 45   Ibid at [25]

 46   Transcript PN 514 – PN 526

 47   Transcript PN 521

 48   Transcript PN 519; PN 525

 49   Exhibit 6 at [24]

 50   Exhibit 7; attachment PM 10

 51   Ibid

 52   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498

 53 (1995) 185 CLR 410

 54   Ibid at 465

 55   Exhibits 1 and 2

 56   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378

 57   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 58   Ibid

 59   King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213)

 60   Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1

 61   Exhibit 4 at [8]

 62   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 63   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 64   Previsic v Australian Quarantine Inspection Services Print Q3730

 65 (2000) 98 IR 137

 66   Ibid at 151

 67   RMIT v Asher (2010) 194 IR 1 at 14-15

 68   [2013] FWCFB 9196

 69   Ibid at [4]

 70   See also Explanatory Memorandum to the Fair Work Bill 2008 at [1542]

 71   Annetta v Ansett Australia (2000) 98 IR 233 at 237

 72   Exhibit 7; attachment PM 11 – PM 16

 73   Transcript PN 233 – PN 239

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