Coco v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 54
•24 March 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
Coco v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 054
PARTIES:
Coco, Angelo
(Appellant)v
Simon Blackwood (Workers' Compensation Regulator)
(Respondent)CASE NO:
WC/2013/327 PROCEEDING:
Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)
DELIVERED ON:
24 March 2015 HEARING DATES:
2 and 3 April 2014 MEMBER:
Industrial Commissioner Black ORDERS :
1. Appeal dismissed.
2. The decision of the Regulator dated 5 September 2013 is confirmed.
3. The matter of costs is reserved.
CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION
CASES: Workers' Compensation and Rehabilitation Act 2003, s 32, s 550
Blyth Chemicals Ltd v Bushnell [1933] HCA 8
Concut Pty Ltd v Worrell [2000] HCA 64
Pearce v Foster(1886) 17 QBD 536APPEARANCES: Mr M. Ascione, Counsel instructed by Ascione & Associates for the Appellant.
Mr F. Lippett, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.Decision
Introduction
[1]Angelo Coco ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the respondent") to reject his application for workers' compensation.
[2]The appellant conducted his own business called "Family Business Support". Sometime in 2010, he joined the North Queensland Small Business Development Centre (the centre) as a member, paying a $90 per annum subscription. In October 2011 the appellant accepted casual employment as a Business Advisor with the centre. The appellant worked for the centre for about two days a week and he continued to operate his business during the course of his employment with the centre. For most of his period of employment the appellant reported to Mr Arnold who was the CEO of the centre until August 2012. When the vacant CEO position was advertised, the appellant was an unsuccessful applicant. At the end of October 2012 a new CEO, Ms Sharyn Brown, was appointed. She commenced full-time duties on 12 November 2012.
[3]In October 2012 the appellant's commitment to the centre increased to around 30 to 40 hours per week when he took on the delivery of a Certificate IV Small Business Management Course. This course involved two cohorts of ten students. The attainment of the qualification was facilitated by a formal process in which prior learning was recognised and credits awarded. The appellant's employment with the centre ended in late November or early December 2012.
[4]On 11 December 2012, the appellant visited his general practitioner, Dr Arlett, complaining of stress. At a further attendance on Dr Arlett on 1 February 2013 he obtained a medical certificate which recorded an injury described as "psychological in nature" and provided a diagnosis of "anxiety and secondary headache".
[5]He subsequently lodged an application for workers’ compensation on 19 February 2013, citing the cause as being "alleged unfair & unlawful dismissal, without due notice or process via a phone call, and I have still not received a notice of termination".
[6]On 19 March 2013 WorkCover Queensland rejected the appellant's application for workers' compensation. On 17 June 2013 the appellant asked the regulator to review the Insurer's decision. On 5 September 2013 the regulator confirmed WorkCover's decision that the appellant's claim was one for rejection. On 9 October 2013 the decision was appealed pursuant to s 550 of the Worker's Compensation and Rehabilitation Act 2003 ("the Act").
[7]In the proceedings the respondent conceded that the appellant had suffered a personal injury but did not concede that the injury was causally connected with his employment.
Issue for Determination
[8]The issues for determination in this appeal are whether the worker suffered an injury pursuant to s 32(1) of the Act and, if so, whether the injury is removed from the operation of s 32(1) by the operation of s 32(5). The appeal to the Commission is by way of a hearing de novo. To succeed with his appeal, the appellant must establish on the balance of probabilities that he sustained a psychological injury in the manner claimed.
[9]Section 32 of the Act (for the purposes of this appeal) relevantly provides as follows:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course
of, any of the following circumstances -(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b) the worker's expectation or perception of reasonable management action being taken against the worker;
(c) action by the Authority or an insurer in connection with the workers' application for compensation."
Exhibit 1
[10]The regulator tendered the following background documents as Exhibit 1:
·WorkCover Queensland Application for Compensation dated 19 February 2013;
·WorkCover Queensland Reasons for Decision dated 19 March 2013;
·Q-COMP Application for Claim Review dated 17 June 2013; and
·Q-COMP Review Unit Decision dated 5 September 2013.
Evidence
[11]During the course of the proceedings, evidence was provided by six witnesses. The witnesses for the appellant were as follows:
· Angelo Coco
· Kirsten Gadsby
· Dr Kevin Arlett
· Donnie Harris.
The witnesses for the Regulator were as follows:
· Sharyn Brown
· George Uren.
Medical Evidence
[12]The appellant said that he began to experience "tension and headaches" on the weekend of 8 and 9 December 2012. He accepted that he experienced anxiety symptoms on and after 30 November 2012 which got progressively worse. He did not however report symptoms of stress or anxiety to his general practitioner until 11 December 2012.
[13]The medical records of the appellant's consultations with Dr Arlett are in the evidence as Exhibit 14. They show that the appellant attended on Dr Arlett on 7 December 2012 for an unrelated illness. In this consultation he did not raise with Dr Arlett symptoms of stress or anxiety. However the appellant did attend on Dr Arlett on 11 December 2012 complaining that he was stressed. In a letter written by Dr Arlett on 28 March 2014 (Exhibit 13) he stated that the "main cause for Mr Coco's anxiety and stress related illness was felt to be his work situation".
[14]The appellant had a history of stress related illnesses. Prior to the consultation on 11 December 2012 the appellant had reported to Dr Arlett that he was suffering stress for various reasons in consultations on 10 April 2006, 12 March 2008, and 8 March 2010. In the circumstances the respondent argued that there was a basis for concluding that the appellant's stress and anxiety was related to his personal financial circumstances or the financial standing of his business, rather than the ending of his employment relationship with the centre.
[15]I accept that given the appellant's history of stress and anxiety arising from the vicissitudes of life, the consequences which might be expected to flow, and did flow, from the ultimate failure of his efforts to displace the incumbent chair of the centre, might support an argument that factors unrelated to the appellant's employment relationship contributed to the development of his injury. However there were also legitimate connections between his stress and anxiety and his employment, including his failure to meet agreed milestones in the diploma program, his refusal to follow Ms Brown's direction to attend a meeting at the centre on 30 November 2012, and the termination of his employment contract.
[16]On balance I accept that while the appellant's employment may not have been the only factor contributing to the development of his injury, it was a factor and a significant contributing factor. In the circumstances the matter for determination relates to the operation of s 32(5) of the Act.
Stressors
[17]The appellant filed a list of stressors in the Commission on 18 March 2014. The list is in the evidence as Exhibit 12. The stressors are summarised as follows:
(i)The phone call from Sharyn Brown asking, without providing any reasons, that the appellant return all student materials to the centre on 30 November 2012 and advising him that his employment had been suspended;
(ii)Attendance at a meeting on 5 December 2012 between the appellant and a committee member, Gary Rebgetz, during which the appellant was invited to "complete the assessment of the Student's Coursework". However neither Mr Rebgetz nor the centre were prepared to confirm the request in writing.
(iii)The failure of the centre to respond to a letter from the appellant's solicitors dated 4 December 2012, and choosing to circulate a letter dated 5 December 2012 in which members and others were advised of the appellant's termination and "generally casting aspersions" about the appellant's professional capacity. The centre also failed to afford the appellant due process.
(iv)Being wrongly accused of wearing badged uniforms, handing out personal business cards bearing the appellant's private business logo, and soliciting business for his private business from the centre's students and clients.
(v)The Employer failing to:
·Issue a termination letter, employment separation certificate and other associated documentation to the appellant;
·Provide acceptable third-party evidence confirming the appellant's termination and the exact, cumulative amounts of each pay over the whole period of his employment at the centre;
·Return personal items and resources;
·Provide the position description for his role;
·Provide complete copies of various documents and emails; or
·Settle the "protracted mediation" and demonstrating a persistent lack of co-operation and obstructive conduct including denying access to requested documentation.
[18]The statement of stressors included a sixth stressor which should correctly be regarded as a submission, not as a stressor. In this respect the appellant asserted that the centre's responses had been unfair, unlawful, malicious, personal and vindictive and were "hugely disproportionate" to the alleged conduct. He said that it was not reasonable for the employer to terminate his employment and that he was not afforded due process.
[19]Additionally, as noted by the respondent, some of the stressors set out in Exhibit 12 introduced material which post-dated the decompensation of the appellant on 11 December 2012. These matters, which are included in the fourth and fifth stressors, should appropriately be excluded from consideration in the decision making process.
[20]Having regard to the statement of stressors, the evidence adduced in the proceedings, and the submissions of the parties I am of the opinion that the determination of the appeal essentially requires the following two questions to be answered:
(i)Did the manner in which the centre terminated the appellant's employment give rise to unreasonable management action pursuant to s 32(5) of the Act including a consideration of facts and circumstances related thereto;
(ii)Did the termination of the appellant's employment constitute unreasonable management action pursuant to s 32(5) of the Act including a consideration of facts and circumstances related thereto.
Conflict of Interest
[21]The appellant said that he received income from the centre both as an employee and also as a contractor when work was awarded to his firm. When working as an employee of the organisation he was paid $40 per hour, while when working as a subcontractor he was paid $100 per hour.
[22]The appellant said that he was in the centre office on 16 November 2014 when a nomination form was received on the fax machine for the position of chairperson of the board. The appellant said it was a coincidence that he was in the office when the nomination was received, but as it transpired he knew the nominee and promptly announced that he would second the nomination as a member of the centre. When he left the office, and while travelling home, the appellant telephoned the nominee, Ms Gadsby, and informed her that he had seconded her nomination. The appellant's evidence was that the receipt of the nomination meant that an election would have to be held for the position of chair of the board of the centre.
[23]According to Ms Gadsby's evidence the appellant made another call to her about two days later. Her record of events, which is in the evidence as Exhibit 15, discloses that in the second call the appellant said to her "that he would support her at the AGM" and advised her that "now that she was nominated for chairperson that she should advise any members as time was running out". Further in her notes Ms Gadsby records that during a board meeting held soon after the AGM she told the meeting that, in his second call to her, the appellant had said to her that "he was contacting members to encourage them to vote via proxy" and he suggested that she do the same.
[24]The appellant's lobbying on behalf of Ms Gadsby included an email dated 16 November 2012 which he sent to 12 members of the centre, most of whom he knew, and had dealings with in the past. The email is in the evidence as Exhibit 4 and is reproduced in full below:
"Dear colleague,
I am not sure if you are able to make it to this important meeting, but I do urge you to attend if at all possible.
We currently find the Centre with:
1. No funding from the Federal Government, which was $300,000 in prior years and previously known to have had a Sunset Clause;
2. A newly appointed CEO who has not been afforded the benefit of a proper handover from the former CEO, who appears to have left without explanation;
3. A strategic plan dated 2008, which has not been reviewed and mapped out for the next few years in detail;
These are all strategic issues, which appear to have not been properly addressed and the prime responsibility of the current Management Committee. It is crucial that the next Management Committee act urgently to address these matters to preserve the important contribution that the North Queensland Small Business Development Centre makes to the region from Tully to Home Hill and west to Charters Towers as a Business Incubator and Centre for Affordable Business Advisory Services.
If you find that you are not able to make it, would you please consider providing me with your proxy, as per the attached form, as there will be a vote for all 6 available positions, including that of Chairperson. Please fax your completed Proxy to myself on 4721 2188, or the NQSBDC office on 47238492, by close of business Tuesday 20th November.
Thanking you in anticipation of your support in this matter.
Kind Regards
Angelo Coco
Family Business Advisor".
[25]Ms Gadsby's notes also recorded that she received a third call from the appellant a few days after the AGM. In this call the appellant informed Ms Gadsby that one of the office staff of NQSBDC was concerned about "some underhanded practices by the CEO and certain board members that were going on" regarding Ms Gadsby's position of chairperson.
[26]At the AGM the appellant exercised his proxies which it is accepted contributed to Ms Gadsby being elected as chairperson at the expense of the incumbent Mr Harris. On the evidence 27 members attended in person while seven proxies were exercised. The appellant had been awarded four proxies, meaning that he cast five votes in the election. Ms Gadsby won the contest by 18 votes to 16 votes.
[27]The following week the appellant was asked to attend a meeting with the CEO on 26 November 2012. The appellant said that he had been away off-site since Ms Brown had been appointed and the meeting was arranged to update her with progress in particular of the delivery of the Certificate IV program. An email from Ms Brown confirming the outcomes of the meeting is in the evidence as Exhibit 6. Of relevance to these proceedings the email states that:
"Therefore, we have agreed that invoices will be raised as follows:
Wednesday 28 November
Invoice 1 $110 + GST x 6 hours x 9 participants for Group OneWednesday 28 November
Invoice 2 $250 + GST x 10 participants for Group One".
Ending of the appellant's employment
[28]The evidence featured many competing versions about what transpired between the AGM on 21 November 2012 and the ending of the appellant's employment on or about 30 November 2012. In terms of the activities of the board or the members of the board, it was the effect of Ms Gadsby's oral testimony that:
(i)On the Friday following the AGM she received a call from a member of the board, Mr Lynch, who invited her to a board meeting the following Wednesday 28 November 2012 to "discuss strategy and matters of the AGM";
(ii)At the 28 November 2012 meeting the board resolved unanimously to instruct the CEO to suspend and terminate the appellant's services;
(iii)After the board meeting she had second thoughts about the appropriateness of this decision and she attended on Ms Brown unannounced at 9.00 am on Thursday 29 November 2012;
(iv)In her meeting with Ms Brown she asked Ms Brown to hold off the implementation of the decision about the appellant pending her further discussions with the board;
(v)Shortly after leaving the meeting with Ms Brown she received a telephone call from Mr Uren in which Mr Uren asked her to attend a board meeting at 2.00 pm that afternoon;
(vi)In the board meeting she was called on to account for what was alleged to be a breach of due process in asking the CEO not to implement a board resolution. She said that she explained to the board that she did not feel the process agreed for the suspension and termination of the appellant was right;
(vii)In the end result she succumbed to requests that she tender her resignation from the board.
[29]There was a significant inconsistency between Ms Gadsby's oral testimony and the content of notes that she said that she compiled after the 29 November 2012 board meeting. In the notes she records that at the 28 November 2012 board meeting a discussion took place around decisions that the board needed to make regarding the dismissal of the appellant. However in giving evidence in the proceedings Ms Gadsby stated that the board discussion was about decisions to "suspend and terminate" the appellant's services.
[30]The notes then went on to record that David Lynch "asked the board if they agreed to the CEO being instructed on these items." After this, the notes stated that:
"The CEO Sharyn Brown was invited into the room, and Kirsten conveyed the board's directives and that the CEO was to coordinate. Kirsten explained, to her ability with such short notice on the matter, the way in which these directives were to be undertaken. David Lynch took over the instructions to the CEO and invested time into conveying the direct instructions for the CEO."
[31]Despite the notes stating that Ms Brown was called into the meeting and issued with instructions, it was Ms Brown's evidence in the proceedings that she did not recall receiving any such instruction. She had a recollection of being called into a meeting but it was unclear whether it was the meeting on 28 November 2012 or the meeting on 29 November 2012. Either way she rejected the proposition that she had been instructed to terminate the appellant's services.
[32]It was Mr Uren's evidence that while Ms Brown did not attend the complete board meeting on 28 November 2012, she was called in to present the CEO's report. He said that during the presentation Ms Brown was critical of the appellant's performance and that the board discussed his performance. However it was his evidence that no instruction was issued to the CEO to terminate the appellant's employment but rather "we agreed with Sharyn that she needed to do something about the situation, but there was no instruction to what she should do, but she needed to sort the problem".
[33]Mr Uren confirmed that the board reconvened the following day, 29 November 2012, at his instigation. He said that the CEO had informed him that Ms Gadsby had met with her that morning and had instructed her to do something which contradicted a board instruction. He explained the contradiction in his evidence at T2-64:
"She informed me that Kirsten Gadsby went to her office and told her to cease and desist any instruction that she had had from the board previously with North Queensland Small Business Development expo and that she was taking it over, as in Kirsten Gadsby. She was going to organise it and organise who was doing what and how it was run."
[34]Ms Brown's evidence about the meeting with Ms Gadsby was to the effect that while some matters may have been discussed the only significant recollection she had was that Ms Gadsby took the opportunity to provide her with an "impromptu coaching session on her expectations of my behaviour and conduct".
[35]The appellant said that on 30 November 2012, at about 1.45 pm he received a call on his mobile phone from Ms Brown. He said that Ms Brown said that he was to "immediately return to the centre all the books and records of the students for the course". No explanation was given. While Ms Brown wanted the materials returned by 3.30 pm, the appellant said he could not return them until after 6.00 pm. The appellant said that Ms Brown then disconnected the call before calling him back a couple of minutes later. She again refused to provide any explanation, confirmed that the materials needed to be returned and said that someone would go to the appellant's office to pick up the material before 3.00 pm that afternoon. The appellant said that in the second phone call Ms Brown said to him that the matters discussed may have "major implications on your employment". When the appellant reiterated that he could attend at the office by 6.00 pm, he was told "well, look, you are suspended forthwith".
[36]The appellant's evidence about his response to the CEO's calls is recorded at T1-22:
"Now, you were somewhat shocked?---Well, I couldn’t understand. I – I was confused and stunned, if I can put it that way, as to what was going on, because up until that point there’d been nothing but positive comments from the chair. Everything was going okay. My field supervisor was quite happy. Everything was going along swimmingly and now, with no – for no reason that I was told, I had to hand everything back. I just couldn’t understand it, and so I was anxious as to what was going on."
[37]The appellant's evidence about what transpired in the 30 November 2012 phone discussions with Ms Brown was not consistent with what he had written in his notice of appeal dated 8 October 2013 (Exhibit 10). In his notice of appeal the appellant stated in paragraph 3.16 that "Ms Sharon Brown contacted me twice on Friday 30 November 2011 (sic) to arrange a time for me to meet with her at the Thuringowa Enterprise Centre, and when I refused to meet, my employment was terminated. I was informed that the Chairman of the Board would like to meet with me that afternoon at my business premises to discuss the termination of my employment and collect confidential information."
[38]The appellant said that there was a difficulty with the request to collect books at or before 3.00 pm because he had other commitments outside of the office. He said however that he made arrangements with another tenant for some of the materials to be handed over. At 2.34 pm he then sent Ms Brown an email (Exhibit 9) in which he explained that he would be unable to hand over electronic copies of materials by 3.00 pm that day and stating that he would be in a position to provide the electronic files by 5.00 pm on Monday 3 December 2012.
[39]The appellant said that no one had turned up to collect the materials before he left the office. In the end result the materials were handed over to Mr Uren on either Saturday 1 December or Sunday 2 December 2012. At the hand over meeting the appellant said that Mr Uren would not discuss the circumstances but told the appellant that he would "get a letter shortly".
[40]It was Mr Uren's evidence that on 30 November 2012 he received a phone call from Ms Brown who informed him that she had terminated the appellant's employment and asked him to go to the appellant's office between 3.00 pm and 3.15 pm to pick up some materials. Mr Uren said that he arrived at the appellant's address at 2.30 pm and proceeded to the appellant's office. When he arrived there he found that the door to the office was locked, that the office lights were turned off and that no one was around. Confronted with this situation he returned to the car park before returning to the office to check whether the appellant had returned. He returned to the office on several further occasions before leaving empty handed at 3.30 pm. After this he tried contacting the appellant on a number of occasions before securing a commitment from him to meet at the appellant's office on Sunday 2 December 2012. Mr Uren's evidence about this meeting is recorded at T2-62:
"What is your recollection of what was said, or words to the effect?--- I had the full intention of keeping it as brief as I possibly could. Mr Coco asked me that – why was his employment terminated, or why he had been sacked. I can’t quite remember the words, that he hadn’t known what he had done. My reply was – I didn’t want to say anything. I just said something along the lines of that I couldn’t – not explain – I’m looking for the right word. I couldn’t tell him what was going on, but rest assured that I will make certain that a letter was forwarded to him as soon as possible."
[41]The appellant said that he kept notes of what transpired between 30 November 2012 and 12 December 2012. These notes are in the evidence as Exhibit 8. The notes include the following information:
(i)On 30 November 2012 Ms Brown told the appellant that her request for materials to be returned was an instruction "and that it may have further implications" for his employment;
(ii)In the same conversation Ms Brown told the appellant that he was being suspended;
(iii)On 1 December 2012 Mr Uren told the appellant that it was his understanding that Ms Brown had used the word "termination", not "suspension";
(iv)On 4 December 2012 the appellant's solicitors sent a letter to the centre requesting details of his suspension;
(v)On 5 December 2012 the appellant was told by Gary Rebgetz that "there was no going back on my termination".
[42]Ms Brown's evidence was to the effect that when she called the appellant around 1.00 pm on Friday 29 November 2012 and requested that he attend an urgent meeting with her that afternoon, the appellant told her that he was not available. Ms Brown said that the appellant explained that he had meetings with clients scheduled, that he had to pick up his daughter from school, and that he had other commitments. In response to these explanations Ms Brown said that she told the appellant that she could not "stress enough how important it was for him to make it a priority to attend the office to have a meeting". Ms Brown reiterated her request in a follow-up call made to the appellant soon after the first call. However that appellant again said that he was unable to attend a meeting that afternoon. When the appellant declined an offer to reconsider his position Ms Brown said that she advised the appellant that "his employment had been terminated effective immediately". She then requested the appellant to return all centre materials to the office that afternoon.
[43]On 1 or 2 December 2012, the appellant arranged to meet a committee member, Mr George Uren to enable the transfer of outstanding files. Later that day, the appellant said that he was contacted by Ms Brown who directed him to cease communication with centre staff, tenants, clients and other related parties.
[44]On 4 December 2012, the appellant attended on a firm of solicitors which resulted in a letter being sent by the solicitors to the committee of management. The following day a committee member, Mr George Rebgetz, called the appellant and arranged a face to face meeting at which Mr Rebgetz asked the appellant if he was prepared to continue with the delivery of the course. The appellant said that he was prepared to continue with the course but that he wanted an instruction from the management committee confirming the request. Later that day the appellant was forwarded a copy of correspondence emanating from Ms Brown which stated that his services had been terminated (Exhibit 7). Subsequently on 12 December 2012 the appellant received a letter from the NQSBDC's solicitor which set out the reasons for the termination of the appellant's employment.
[45]On 5 December 2012, the appellant attended a meeting with Mr Gary Rebgetz who discussed with him the prospect of him completing the student assessments. Later the same day, the appellant became aware of a letter circulated by NQSBDC informing members and others that his services had been terminated.
Termination or Suspension
[46]I accept the respondent's position that the appellant's services were terminated and not suspended arising from his exchanges with Ms Brown on 30 November 2012. It may have been that the telephone exchanges involved the use of language which left the appellant in some doubt, but in my view the evidence supports a finding that the intention of the employer was to terminate the appellant's services and this is what it did. The intent to terminate, or the probability of that course of action, is established by reference to events immediately preceding the 30 November 2012 telephone discussions.
[47]Further a review of the differing versions provided by the appellant and Ms Brown leads to a conclusion that Ms Brown's version is to be preferred. The appellant's version of events is not convincing. In the first of two calls he said that Ms Brown rang for the sole purpose of directing him to return course materials and student records but that she said nothing about his employment status and gave no reason for the return of the materials. In the second call the appellant said that the following exchange occurred:
"I think it was the second phone call as she finished up she said, “Well, look, this may have major implications on your employment.” And I said, “Look, I still – I can make it by six”, and she said, “Well, look, you are suspended forthwith.”
[48]Ms Brown however said the reason for the first call was to summons the appellant to attend at the office for an urgent meeting. This request is consistent with the board discussion two days prior that concluded that the appellant's services should be terminated. She said that when the appellant said that he could not attend because he had other commitments, she stressed the importance of the meeting and asked him to reconsider. When the appellant did not change his mind the phone call ended. In the second phone call Ms Brown said she again asked the appellant to reconsider and it was only after he had again refused to attend the proposed meeting that she terminated his employment. It was not until this step had been taken that she directed the appellant to return all centre property including all diploma course materials and student records.
[49]It seems to me that the appellant has mixed up the sequence of events. It is more probable than not that the phone conversations unfolded in the manner described by Ms Brown than as recounted by the appellant. Indeed the appellant said as much in paragraph 3.16 of his notice of appeal. There are however other reasons that support a conclusion that the appellant's employment was terminated on 30 November 2012. Firstly, on the appellant's own evidence, the gravity of his situation was apparent and he must have known that his employment was in jeopardy.
[50]Secondly, despite the differences in the evidence of Mr Uren and Ms Gadsby, both said that at the board meeting on 28 November 2012, a conclusion was reached that the appellant's employment should be brought to an end. I accept that Mr Uren's words were carefully chosen and his evidence that Ms Brown "needed to sort the problem" does not necessarily mean that the appellant services should be terminated but such an outcome is probable when Mr Uren's evidence is reconciled with Ms Gadsby's contemporaneous notes. In terms of Ms Gadsby's evidence I prefer to accept the content of her contemporaneous notes rather than her recollections given in oral testimony. Not that it is necessary to try to reconcile the inconsistency because I am unable to discern any significant difference, in the context of these proceedings, between a decision to "terminate" and a decision to "suspend and terminate".
[51]Thirdly the appellant's notes in the evidence as Exhibit 8 record that he was told by Mr Uren on 1 December 2012 that it was his understanding that Ms Brown had told him that his services were terminated, not suspended. Mr Uren's evidence was that the appellant asked him why his services had been terminated or why had he been sacked. Finally Exhibit 8 also discloses that when the appellant met with Mr Rebgetz on 5 December 2012, he was told that "there was no going back" on his termination.
Reasoning
[52]Turning to a consideration of management action, the starting point is to consider the reasons put forward in support of the decision to terminate the appellant's employment. Ms Brown said that her intention in directing the appellant to attend a meeting on the afternoon of 30 November 2012 was to enable her to address the following matters:
(i)Significant problems associated with the execution of work related to the delivery of the small business certificate course;
(ii)The 16 November 2012 email; and
(iii)Conflict of interest issues.
[53]In terms of the small business course, Ms Brown said that the timely completion of work was critical to the centre's funding and cash flow, particularly in the lead up to Christmas where delays in the processing and receipt of payments could be expected. She said that to achieve certainty in these areas she had agreed a schedule of work with the appellant on 26 November 2012. She said that it was evident that the project was behind schedule at this time and that she had discussed with the appellant ways and means of getting the course back on track. The outcome of the meeting was recorded in an email sent to the appellant on 26 November 2012 (Exhibit 6). The email discloses that it was agreed that invoices would be raised on 28 November 2012 for the amount of $8,440 plus GST. As I understood the evidence, by the afternoon of 30 November 2012, the invoices had not been raised because the appellant had not completed the necessary work.
[54]In terms of the email distributed by the appellant to certain members on 16 November 2012, Ms Brown expressed the following views (T2-47):
"All right. Now, as of the 30th of November 2012 had you formed any view as to the propriety or otherwise of the sending out of that email?---It was – I found it to be quite damaging to my reputation and more so some of the recipients I recognise from my – in my professional capacity from the accounting circle, I suppose, community in Townsville, and I was a bit – I was quite concerned, actually, particularly if we aren’t to have funding then we rely on the support and the respect of the business community in Townsville. So to have something that is quite false and potentially misleading generated to who are important contacts and members of our organisation is not – it’s not in our best interests as a centre at all."
[55]In terms of the conflict of interest issues, Ms Brown said that she wanted to express her concern that the appellant, when employed as an employee of the centre, had been promoting himself to students of the centre as a sole operator and not as a representative of the centre. She also said that the appellant had at times performed work for the centre wearing a uniform that was embroidered with his own business logo. Further he had used paperwork and notepaper that was branded with his own logo and he had avoided distributing the centre's business card when he was acting as a representative of the centre. Finally she complained that the appellant used his own business email header or footer when he was communicating with students of the centre.
[56]The appellant on the other hand maintained that he had provided exemplary service to the centre over the course of his employment. It was his view that he had taken, and was taking, the steps necessary to ensure the timely delivery of the certificate course. He said the delays in the course did not arise from any lack of diligence on his part, but from the failure of students to provide the necessary information on time. He denied that his work practices gave rise to any conflict of interest and said that if the centre believed that his performance was deficient, concerns were not raised with him in a way that afforded him procedural fairness. He said that the decision to terminate his employment was completely unexpected and grossly disproportionate to whatever conduct the centre was concerned about.
[57]Apart from the failure to meet the agreed deadlines for the diploma course, the appellant may have been entitled to question the seriousness of the allegations levelled against him. However in building his defence the appellant has disassociated himself from the actions he took in his capacity as a member. In this regard the appellant appears to have adopted the view that derogatory comments about the operation of the centre could not impinge on his employment relationship if the adverse commentary was delivered by him in his capacity as a member of the centre.
[58]However the appellant's duty towards his employer of loyalty and trust is not an obligation which is divisible, transitory or intermittent in its application. The relevant attributes or qualities are enduring and cannot be turned off and on to suit the convenience of the employee. The appellant cannot escape accountability for his own actions and their consequences for his employment relationship. The High Court decision in Concut Pty Ltd v Worrell[1] is relevant. In his decision Kirby J relevantly commented that:
"The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust."
[1] Concut Pty Ltd v Worrell [2000] HCA 64.
[59]While, in the same matter, Gleeson CJ, Gaudron and Gummow JJ. stated:
"In Pearce v Foster[2], Lord Esher MR stated it to be a 'rule of law' that 'where a person has entered into the position of servant, if he does anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him'. In Blyth Chemicals Ltd v Bushnell[3], in the course of considering the position of the respondent, who was the manager of the appellant's business, Starke and Evatt JJ said:
'As manager for the appellant, the respondent was in a confidential position. And it is clear that he might be dismissed without notice or compensation if he acted in a manner incompatible with the due and faithful performance of his duty, or inconsistent with the confidential relation between himself and the appellant.'
In the same case, Dixon and McTiernan JJ said:
'Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal.'"
[2]Pearce v Foster(1886) 17 QBD 536 at 539.
[3] Blyth Chemicals Ltd v Bushnell [1933] HCA 8.
[60]It is clear to me that the appellant's email of 16 November 2012 had the potential to cause significant damage to the centre. The email unmistakably propagated a view of centre incompetence illustrated by the loss of substantial federal government funding, the unexplained removal of a CEO, an unprepared (and possible unqualified) incoming CEO, and an organisation without a plan or vision for the future. Further, once the appellant committed his views to writing and circulated these views to a number of members, there was no way of limiting the circulation of the email. In sending the email the appellant has crossed a line and breached his fiduciary duty to his employer. From this point on, unless his employer forgives his sins, his position as an employee of the centre becomes untenable. A conclusion emphasised by a context in which probity, governance and reputational factors were of critical importance to the centre's conduct and well-being. Adherence to these factors was central to the continuing support of the Townsville business community, to the centre's eligibility for government funding, and to its ongoing support by the Townsville City Council.
[61]Further and importantly the appellant's public criticisms were levelled in circumstances where no objective evidence was provided to substantiate or legitimise the criticisms, either at the time, or when the appellant gave his evidence in the proceedings. The complaint regarding an insufficient handover was trivial given that there was a gap of nearly two months between the departure of Mr Arnold and the commencement of his successor. No face to face handover was possible but the centre was a very small organisation with a limited scope of activity. There did not appear any good reason why an adequate handover could not have been effected through briefings from staff and board members. Further, by attaching importance to a handover, the appellant implied criticism of Ms Brown's knowledge of the operations or her ability to quickly grasp an understanding of the operations. This criticism is levelled on 16 November 2012 despite the fact that Ms Brown had only commenced duties on a full-time basis four days earlier on 12 November 2012.
[62]While the appellant said in his email that the funding shortfall had not been properly addressed, he did not participate in committee of management meetings and could not have been fully informed about matters discussed or actions contemplated by the committee in considering the funding shortfall. Further it was somewhat ironic that the initial centre response to the loss of funding was the responsibility of himself and the then CEO, Mr Arnold.
[63]In this regard both the appellant and Mr Arnold submitted applications for new funding from the same or different funding sources in July that year. While neither of these applications were successful, the appellant offered no criticism of the quality of the work. He said that Mr Arnold had "prepared that application for several years beforehand" and that there was nothing that he could teach or show Mr Arnold that would improve the application. In the end result the centre did not know that these applications were unsuccessful until November 2012, hence little time was available before the AGM to address the consequences of the failures. Finally despite his criticism that the committee should have been looking at other options, the appellant said in his evidence that he did not have any specific advice for the management committee other than to start a strategic review. In other words there was no simple solution to the funding problem.
[64]In terms of the strategic plan, it was Ms Brown's evidence that the most recent plan had been completed or reviewed in 2010. She said that as a matter of course, as the incoming CEO, she would have been expected to review and reshape the plan. What the appellant might have expected of the incoming CEO, given that she had only held the job for a week or so prior to his 16 November 2012 email, was not disclosed.
[65]The facts and circumstances of this case do not support a conclusion that the centre acted unfairly or unreasonably in terminating the appellant's employment. Nor was the manner in which the termination was effected unreasonable. The appellant's position became untenable from the moment that his 16 November 2012 email was discovered by his employer. In a practical sense his employment relationship could only continue if he was forgiven by the organisation that employed him. The prospect of that happening significantly diminished when Ms Gadsby resigned her position of chairperson of the board.
Conclusion
[66]The personal injury sustained by the appellant on 11 December 2012 is withdrawn from s 32(1) by virtue of the operation of s 32(5). The relevant management action that contributed to the development of the appellant's injury was neither unreasonable nor unreasonably taken. The appeal is dismissed.
[67]I order accordingly.
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