Con Tsartas v CSL Limited
[2021] FWC 531
•25 FEBRUARY 2021
| [2021] FWC 531 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Con Tsartas
v
CSL Limited
(U2020/11519)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 25 FEBRUARY 2021 |
Application for an unfair dismissal remedy.
[1] On 25 August 2020 Mr Con Tsartas (Applicant) applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy.
[2] The Applicant was employed by CSL Limited (Respondent) from in or around 5 August 1999 1 until his dismissal as a Chemist. He was dismissed by the Respondent with effect on 5 August 2020 for conduct said to breach the Respondent’s Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure.
[3] The Applicant contends that his dismissal was harsh, unjust or unreasonable. He seeks reinstatement. 2
[4] The Respondent contends the Applicant’s dismissal was not unfair. The Respondent says it had a valid reason to dismiss the Applicant related to repeated instances of misconduct in breach of the Respondent’s express directions and policies. 3
[5] The application was heard by me on 25 and 26 November 2020. The Applicant and the following individuals gave evidence in support of the Applicant’s case but it was in the nature of character evidence and none of the individuals could speak to any of the incidents the subject of the reason for dismissal:
• Mr George Babatsikos, Storeworker
• Ms Gabby Badrock, Cleaner
• Mr Angelo D’Ambrosio, Storeworker
• Mr Tony Mason, Chemist
• Mr Enrique Santos, Laboratory Worker
[6] The Respondent led evidence from the following witnesses:
• Ms Sharron Carroll, Security Manager
• Mr Warren Fridell, Senior Manager – Workplace Relations
• Ms Emily Garcia, QC Chemist
• Ms Prudence McKeown, Manager – Health & Injury Management
• Ms Anna Melia, Senior Associate – QC Chemistry
• Ms Marie Neophytou, Senior Associate – QC Chemistry
• Ms Jennifer Staff, Manager – QC Chemistry
• Ms Stephanie Stella, Senior HR Business Partner
• Mr Mario Tucci, former Logistics Warehouse Manager
Initial matters to be considered
[7] Section 396 of the Act requires that certain matters must be determined by the Commission in relation to any unfair dismissal remedy application before the merits of the application may be considered. In respect of the matters identified in paragraphs (a), (b), (c) and (d) of s.396, it was not in dispute and I find that:
1. The application was made within the 21-day period allowed in s.394(2)(a);
2. The Applicant was a person “protected from unfair dismissal” within the meaning of that expression in s.382 at the time of his dismissal by the Respondent; and
3. The Respondent was not a “small business employer” within the meaning of s.23 of the Act at the relevant time. It is therefore unnecessary to consider whether the Respondent complied with the Small Business Fair Dismissal Code; and
4. 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.
[8] For the reasons which follow, I have concluded that the Applicant’s dismissal was not unfair in that it was not harsh, unjust or unreasonable. Accordingly, the application will be dismissed.
Background
[9] The Applicant is 62 years of age 4 and for approximately two decades has been employed by the Respondent as a Chemist.5 The Applicant contends that he has been suffering the effects of an acoustic shock injury to his ear that occurred at work in or around 2010.6 No issue is taken with this contention and I accept it.
[10] The Respondent is a world leader in the manufacture of blood-derived products and serums for medical and therapeutic purposes. The Respondent’s primary operations in Australia are at its facility in Broadmeadows, Victoria, where the Applicant worked. 7
[11] Since early 2015, the Applicant has received both counselling and disciplinary action, including verbal and written warnings, in relation to his conduct at work. The Respondent’s evidence was that the Applicant was issued verbal and written warnings as follows:
• In February 2015, he was given a written warning for conducting testing without the proper training. 8
• In September 2016, he was given a written warning for approaching and intimidating an employee who had made adverse claims about him in the course of an investigation into his then workers compensation claim. 9
• In October 2018, he was given a verbal warning and counselling for raising his voice and unprofessionally seeking to attack his direct supervisor, Ms Marie Neophytou. 10
• In May 2019, he was issued a written warning for conduct directed at Ms Jennifer Staff, including the use of a raised voice, displaying a disrespectful approach to Ms Neophytou and parking in a disabled carpark without permission. 11
• On 18 July 2019, he was issued a final written warning and placed on a Performance Improvement Plan for a number of unsatisfactory behaviours including lateness, failure to use the correct terminal to “punch in”, failure to wear personal protective equipment as required, continuing issues with his inability to complete tasks and unprofessional behaviour directed at Ms Neophytou. 12
• On 1 November 2019, he was issued a personal warning by Ms Staff for unacceptable and unprofessional behaviour, including a continued failure to punch in at the correct terminal, continued late arrival for work and criticising Ms Neophytou’s managerial capabilities. 13
[12] The Applicant does not for the most part challenge the matters set out above or that the various warnings given were justified but says they ought to be viewing in context. 14 That context is summarised in the following submission:
“The context is the situation Mr Tsartas was in. There's a failure to CSL to fully appreciate that Mr Tsartas was suffering from the dynamics of the workplace. He was feeling excluded, under pressure, under siege. Mr Tsartas's hyperacusis further hindered his ability to perform at an appropriate level.
The work environment in which Mr Tsartas was engaged in was crushing on him and it required a significant effort that Mr Tsartas did put in, and is accepted by CSL, in the last two months. But it was the - really, the precipitous event was Mr Tsartas's - the way he engaged with Ms Neophytou, in conflict.” 15
[13] The factual basis founding the “feeling” is not laid out and apart from his bare assertions, there is no probative evidence that he was “excluded” and no evidence of any action on the part of the Respondent or its employees that resulted in or contributed to his feeling of being under pressure or under siege. To the extent that he may have come to this conclusion because of the warnings and counselling, these were a product of his own conduct and performance. Given the way in which the evidence panned out during the hearing, the Applicant’s conduct and Ms Neophytou’s attempts to correct his conduct were aptly described by his Representative (with which I will not cavil) as follows:
“We accept, to a large extent, Ms Neophytou's evidence. It was sincerely made. There's no doubt that she was distressed by the way Mr Tsartas would react to her efforts to supervise, manage and control him.
As for Mr Tsartas's conduct, we say that, as a witness, to put it bluntly, what you saw is what you got. Mr Tsartas can be defensive, can be unyielding, attempts to put his point across, sometimes bluntly, without really taking into account how others might perceive him.
He does, despite a tendency to attempt to be domineering, and it appears that dysfunction here lay in Mr Tsartas attempting to domineer over Ms Neophytou, to the detriment of himself, because he was hauled up and counselled about this. And also to the detriment of Ms Neophytou, who bravely tried to persist, perhaps out of a misplace sense of compassion.
She tried to correct Mr Tsartas, to bring him into acceptable lines of conduct, and Mr Tsartas did make an effort but when conflict arose or Mr Tsartas thought it was slight or that he wasn't given the appropriate latitude that he should have earnt or deserved, as a 20-year employee. His reactions were, we say, not right, not correct.” 16
[14] As to the Applicant’s conduct being explained as an incidence of the effects of an acoustic shock injury to his ear that occurred at work in or around 2010, I do not accept that this diminishes the seriousness of the conduct the subject of the warnings nor the conduct leading to his dismissal. There is a qualitative difference between speaking loudly as a consequence of the injury and raising one’s voice in anger, in an attempt to be domineering and overbearing. As the evidence in this case disclosed, the Applicant’s conduct was in the latter category.
[15] In a letter dated 5 August 2020, the Applicant was dismissed from his employment with the Respondent with immediate effect. The termination letter set out several allegations which were said to have been substantiated as follows:
“…
“Allegation | Finding |
1. On 17 December 2019 you acted unprofessionally and disrespectfully to your manager, Marie Neophytou, by raising your voice in an agitated manner and: | Substantiated |
a. Refused to participate in your Performance Improvement Plan; | Substantiated |
b. Unreasonably argued with her about completion of your allotted work tasks. | Substantiated |
2. On 19 December 2019, you victimised Marie Neophytou by approaching her to discuss the complaint she made about your conduct in allegation 1, including: | Substantiated |
a. Demanding reasons as to why she had raised a complaint against you in breach of confidentiality requirements; | Substantiated |
b. Unwelcome touching of her hands; and | Substantiated |
C. Talking to her aggressively (i.e. a raised voice, yelling such that you could be heard in the adjacent office). | Substantiated |
3. On 17 July 2020 you spoke unprofessionally and/or disrespectfully to Prue McKeown, including: | Substantiated |
a. Being argumentative regarding Dr Mendelson's report; | Substantiated |
b. Refusing to take accountability for your behaviour; and | Substantiated |
C. Accusing Prue of contributing to your ill health. | Substantiated |
[16] The letter informed the Applicant that these behaviours were in breach of the Respondent’s Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure.
[17] The Respondent contends that in the context of the Applicant having been issued earlier verbal and written warnings regarding his conduct at work, and having been placed on a Performance Improvement Plan, the above matters provided a valid reason to terminate the Applicant’s employment.
Legislative background
[18] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must consider the following factors outlined in s.387 of the Act:
(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 Commission considers relevant.
[19] Having regard to the structure and content of s.387, in deciding whether a dismissal was harsh, unjust or unreasonable, each of the matters identified in that section must be taken into account. They are mandatory relevant considerations.
[20] Moreover, each matter must be given appropriate weight having regard to the factual findings earlier made and taking into account the submissions of the parties. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend) 17, that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.387 means that each of the matters must be treated as a matter of significance in the decision-making process.18 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:19
“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”. 20
[21] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend:
“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". 21
[22] The meaning of the words“harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 22by 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.” 23
[23] Ultimately, it is the matters set out in s.387 of the Act to which regard must be had in assessing whether a particular dismissal was harsh, unjust or unreasonable. I consider these matters below.
Valid reason – s.387(a)
[24] Where, as here, a valid reason for dismissal is said to relate to conduct the Commission must find that the conduct occurred and that the conduct justified dismissal. The essence of a valid reason is that the reason is a sound, defensible or well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced. 24 Whether conduct which founds a valid reason occurred is to be determined based on the evidence in the proceedings assessed on the balance of probabilities taking into account the gravity or seriousness of the allegations.25 The test is not whether the employer, after a sufficient investigation, had a reasonably held belief that the conduct occurred.26
[25] As set out above, in a letter dated 5 August 2020 the Applicant was dismissed from his employment with the Respondent with immediate effect. The termination letter set out several allegations which were said to have been substantiated. The letter stated that the conduct was in breach of the Respondent’s Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure (now known as the Complaint and Compliance Policy) and constituted serious misconduct warranting summary dismissal.
[26] The Respondent contends that each of the allegations in the letter of termination constitute a valid reason in breach of the Respondent’s express directions and policies. 27 It submits that the Applicant’s continued failings despite training, warnings, retraining, apologies and repeated promises on the part of the Applicant to improve mean that the gravity of each subsequent breach was ever more significant in establishing a valid reason.28
[27] While the Applicant advances a markedly disparate account of each incident, he ultimately concedes that his conduct may be sufficient to ground a finding that there was a valid reason for his dismissal. 29 Nevertheless, the Applicant contends that the dismissal was harsh because of its effect on him, unjust because he was treated unfairly and dismissed capriciously, and unreasonable because of a failure by the Respondent to properly address his dysfunction.30
The Applicant was aware of the Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure
[28] The Applicant agreed that he was familiar with the Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure and had received training in relation to them as part of the outcome of written warnings. 31 There is little doubt that the Applicant was aware of, received training in, and knew that he had to abide by the Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure, and I so find.
The first allegation
[29] In her 16 November 2020 statement, Ms Neophytou says that on 17 December 2019 Mr Tsartas left work at 10:30am to attend an eye test, returning to work just prior to lunch time. 32 She states that at approximately 4:00pm Mr Tsartas informed her for the first time that he had to leave work early to pick his car up from the mechanic and as a result did not have time to complete his work prior to leaving.33 Ms Neophytou told the Applicant that his team members were busy with their own workload and that she would check with Ms Melia to see if the stoppers could be submitted in the morning. Ms Neophytou states that on hearing this, the Applicant appeared to shift about nervously and, in a passive aggressive tone, said that he would do them himself and submit them to the lab on his way out.34
[30] Ms Neophytou’s statement discloses that before leaving, the Applicant came to see her at her workstation to advise he was departing. She says she noticed he had not completed all items listed for his schedule, including urgent testing. She says the Applicant became confrontational and in the ensuing conversation was condescending, raised his voice, indicated that he was not going to participate in his Performance Improvement Plan any longer, stood over her and starred at her aggressively with his body shaking. 35
[31] By his statement of 4 October 2020, the Applicant contends that he cannot recall if he told Ms Neophytou prior to 4:00pm that he needed to leave earlier than his rostered finish time of 5:00pm. 36 In his oral evidence, the Applicant said he informed Ms Neophytou prior to lunch that he needed to leave work early.37 The Applicant says that at about 4:00pm he visited Ms Neophytou to inform her that he was leaving and that she objected to this on the basis that he was rostered to finish at 5:00pm.38 He says he pointed out that he commenced work early, missed some of his breaks, had completed all of his work and that he needed to pick up his car.39 The Applicant’s evidence was that Ms Neophytou was unmoved, and “was in a bad mood”.40 The Applicant says he handed Ms Neophytou his daily Performance Improvement Plan form and asked “how long do I have to keep doing this” to which she replied “for as long as I want”.41 The Applicant replied “Well I can’t be doing this forever”.42 The Applicant denies that he was confrontational43 or that he stood over Ms Neophytou.44 Instead he contends that Ms Neophytou spoke in a raised voice45 and that he was courteous throughout the conversation.46
[32] I do not accept the Applicant’s version of events and I prefer the evidence of Ms Neophytou for the following reasons.
[33] First, during cross examination Ms Neophytou’s evidence about the Applicant’s conduct on 17 December 2019 was not challenged. It was not put to her that she was lying in her evidence or mistaken about the substance of the conduct alleged.
[34] Secondly, Ms Neophytou’s evidence finds corroboration in a contemporaneous file note made by her and filed as a complaint to Ms Staff and Mr Fridell. 47
[35] Thirdly, it is not just her evidence which establishes the allegation. Much of Ms Neophytou’s evidence about Mr Tsartas’ conduct is corroborated. In his statement of 18 November 2020, Mr Mario Tucci states that on 17 December 2019 he witnessed the Applicant talking to Ms Neophytou in the Warehouse. 48 He says that the tone and behaviour exhibited by the Applicant was rude and that the Applicant was speaking over Ms Neophytou with a raised voice.49 Mr Tucci says that despite Mr Tsartas’ behaviour, Ms Neophytou remained calm and professional throughout.50 At or around the time of the 17 December 2019 incident, Mr Tucci prepared at statement which he provided to Ms Staff.51 Mr Tucci was not cross examined about his recollection of this incident nor about the accuracy of the statement he made at the time. Neither has the Applicant taken issue with Mr Tucci’s evidence about the incident in the Applicant’s second statement filed in the proceedings.52
[36] In the circumstances, I find that on 17 December 2019 by reason of the conduct described in Ms Neophytou’s evidence the Applicant acted unprofessionally and disrespectfully to his manager, Ms Neophytou. The conduct of the Applicant falls squarely within the bounds of “unprofessional behaviour” prohibited by the Diversity and Workplace Behaviour Policy, in the sense that it is discourteous and disrespectful behaviour. The conduct of the Applicant contravened the Diversity and Workplace Behaviour Policy. But even absent the policy, the conduct is not acceptable workplace conduct.
The second allegation
[37] In Ms Neophytou’s 16 November 2020 statement she says that on 19 December 2019, on her way to a morning team meeting, the Applicant approached her and confronted her about a meeting Ms Staff had scheduled with him that day. 53 Feeling uncomfortable and intimidated, Ms Neophytou kept walking but the Applicant walked quickly behind her asking what the meeting was about.54 According to Ms Neophytou’s evidence, when she told the Applicant it was about the conversation of 17 December 2019 and the way he spoke to her, the Applicant appeared irritable and anxious.55 Her oral evidence was that the Applicant was being loud and intimidating.56 She says that the Applicant eventually stormed off in what Ms Neophytou describes as “an aggressive and angry fashion”.57 In the aftermath Ms Neophytou had what she describes as an anxiety attack.58
[38] Ms Neophytou says that the same day the Applicant approached her and requested to speak to her. She says that during the conversation, which took place in an empty office, the Applicant approached her and touched both of her hands as she was talking. 59 Ms Neophytou removed her hands and told him not to do that again.60 She explained that during their conversation on 17 December 2019, the Applicant had been agitated and raised his voice, and had been intimidating.61 She says that with an angry tone and very raised voice, the Applicant said that he didn’t do anything wrong and that is just how he speaks.62 She says that Ms Melia entered the room on two occasions throughout the conversation to ask if everything was alright, indicating she could hear the Applicant’s voice through the walls.63
[39] According to Ms Neophytou’s statement, the Applicant telephoned her later that day and informed her he was unwell and felt faint. 64 The Applicant stated, inter alia, that “he didn’t want to live anymore”, and then hung up the phone.65
[40] The Applicant contends that on arriving at work on 19 December 2019, he checked his emails and saw that he had been invited to attend a Human Resources meeting the following day. 66 He decided to enquire of Ms Neophytou as to the purpose of the meeting. He says that he saw her on the stairs and walked with her to the Satlab.67 The Applicant says he made polite enquiries of Ms Neophytou.68 He denies that he followed her and says that they just happened to be going in the same direction.69
[41] The Applicant says that later that day he went to see Ms Neophytou to tell her that he could not remain at work as he was unwell. He says that her response was to the effect that he had been disrespectful and aggressive when leaving to pick up his car on 17 December 2019. 70 According to the Applicant, Ms Neophytou became more and more animated and started waving her hands about.71 The Applicant gave oral evidence that Ms Neophytou raised her voice.72 He says he touched the back of her hands to calm her down at which time she yelled “don’t touch me!”.73 The Applicant says that shortly thereafter Ms Melia entered the office where the conversation was taking place saying “We can hear you guys outside, are you all right?”.74 In his oral evidence the Applicant denied raising his voice.75 The Applicant says that he then left and went outside for some fresh air. He then rang Ms Neophytou and said words to the effect “Marie, I can’t go on anymore; life’s not worth living.”76
[42] I prefer Ms Neophytou’s evidence concerning the events of 19 December 2019 to that of the Applicant’s for the reasons that follow.
[43] First, during cross examination Ms Neophytou’s recollection of Mr Tsartas’ conduct on 19 December 2019 was not challenged.
[44] Secondly, Ms Neophytou’s evidence in these proceedings about the conduct of the Applicant on 19 December 2019 finds corroboration in a contemporaneous statement she provided to Ms Staff and Mr Fridell. 77
[45] Thirdly, Ms Neophytou’s evidence is corroborated by the evidence on Ms Anna Melia. Ms Melia’s evidence is that at approximately 10:10am on 19 December 2019 the Applicant approached Ms Neophytou’s desk and asked to speak to her. 78 She says Ms Neophytou went with the Applicant to an empty office and closed the door. Ms Melia says that Ms Neophytou and the Applicant had only been in the office for a few minutes when she could hear his voice getting louder.79 She knocked on the door to see if everything was okay and indicated that she could hear the Applicant through the wall.80 Ms Melia says she had not heard Ms Neophytou’s voice through the wall. On hearing the Applicant’s voice grow even louder and concerned that the situation was becoming heated, Ms Melia says she knocked on the door a second time to ensure everything was alright.81 Although the Applicant disputes Ms Melia’s evidence and contends that it is fabricated,82 he did not, in his second statement, challenge her version of events.83I do not accept the Applicant’s fabrication assertion.
[46] I therefore find that on 19 December 2019, the Applicant engaged in the conduct described in Ms Neophytou’s evidence. He should not have approached Ms Neophytou to discuss the complaint she made about his conduct in the first allegation. He was wrong to raise his voice and to make physical contact with Ms Neophytou. The conduct was not appropriate and was overbearing but I consider it to be a stretch to suggest, as the Respondent does, that the conducted amounted to victimisation within the meaning of the Diversity and Workplace Behaviour Policy. That is not to diminish the seriousness of the conduct in which the Applicant had engaged.
The third allegation
[47] The Respondent contends that in March 2020 it received a report from the Applicant’s general practitioner declaring him to be unfit to answer questions on the basis of mental health concerns. 84 In response, the Respondent directed the Applicant to attend an independent medical examination by a psychiatrist, Adjunct Professor George Mendelson.85 In May 2020, Professor Mendelson declared by way of a report to the Respondent that the Applicant was medically fit for work and medically fit to answer questions.86
[48] In her statement of 16 November 2020, Ms McKeown says that on or around 17 July 2020 she contacted the Applicant by telephone to discuss Professor Mendelson’s report and to explain that the report indicated that the Applicant had capacity to work and to answer questions regarding the ongoing investigation. 87 Ms McKeown says the Applicant continually pressured her to provide him with the report despite her explaining that Professor Mendelson had given approval for her to provide it to the Applicant’s general practitioner only.88 Ms McKeown’s evidence was that the Applicant accused her of having had the report for some time and not releasing it,89 having contributed to his ill health90 and having upset his wife.91 At one point during the telephone call Mr Tsartas’ wife picked up the telephone and said words to the effect “this is utterly disgraceful; people are gunning for him”.92
[49] Following the telephone call Ms McKeown says she discussed the matter with her managers Mr Fridell and Ms Nalpanditis. 93 Additionally, Ms McKeown called the police to request a welfare check on Mr Tsartas be undertaken.94
[50] The Applicant says that on being informed by Ms McKeown that he was not permitted to have a copy of Professor Mendelson’s report, his anxiety levels increased and he felt distressed. 95 According to the Applicant, he said to Ms McKeown in a direct manner that he was feeling distressed, was crying and could not take it anymore and asked Ms McKeown to speak to his wife.96 Despite disputing various elements of Ms McKeown’s evidence, the Applicant concedes that her account of the telephone conversation is broadly consistent with his recollection of events.97
[51] I accept Ms McKeown’s evidence about the Applicant’s conduct during their telephone conversation on 17 July 2020.
[52] During cross examination Ms McKeown’s evidence about the telephone conversation she had with the Applicant on 17 July 2020 was not seriously challenged nor was it suggested to her that she was lying or mistaken.
[53] Ms McKeown’s evidence is corroborated by the evidence of Mr Fridell, who gave evidence that on or around 17 July 2020 he received a telephone call from Ms McKeown in which she informed him of a “rough conversation” with the Applicant during which he accused her of making him ill, trying to trick him about the report and having upset his wife and making her cry. 98
[54] Ms McKeown’s evidence about the conduct of the Applicant during their telephone conversation on 17 July 2020 also finds corroboration in a contemporaneous file note produced by Ms McKeown following the telephone conversation. 99
[55] In the circumstances, I find that on 17 July 2020 the Applicant spoke unprofessionally and disrespectfully to Ms McKeown. Like the first allegation, here the conduct of the Applicant falls squarely within the bounds of “unprofessional behaviour” prohibited by the Diversity and Workplace Behaviour Policy, in the sense that it is discourteous and disrespectful behaviour. The conduct of the Applicant contravened the Diversity and Workplace Behaviour Policy.
Conclusion as to valid reason
[56] Taken together the conduct found as to the three allegations provide a sound, defensible and well-founded reason for dismissal. The Applicant accepted during final submissions that this is so. 100 The conduct in which the Applicant engaged on 17 and 19 December 2019 and 17 July 2020 in my view provided a valid reason that justified his dismissal. The conduct of the Applicant was unacceptable and in respect of two of the three instances breached the Respondent’s Diversity and Workplace Behaviour Policy and Workplace Complaint Resolution Procedure. Each incident was inappropriate workplace conduct and was disrespectful. I also find that Mr Tsartas’ conduct has negatively affected Ms Neophytou. Indeed, the Applicant concedes that his conduct towards Ms Neophytou was distressing, unyielding and domineering.101 I also find that having been warned about inappropriate conduct at work in the months and years leading to his dismissal, the Applicant was well aware that conduct of the kind in which he engaged during the three incidents on 17 and 19 December 2019 and 17 July 2020 was inappropriate and would not be tolerated by the Respondent. The Applicant acknowledges that he was counselled about his conduct and attempts were made by Ms Neophytou and others to correct his behaviour.102 It follows that there was a valid reason for the Applicant’s dismissal related to his conduct. That there is a valid reason for the dismissal weighs against a conclusion that the dismissal was unfair.
Notification of the reason for dismissal and opportunity to respond – s.387 (b) – (c)
[57] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 103 in explicit terms,104 and in plain and clear terms.105 This is an element of that which may be described as procedural fairness in order that an employee may respond to the reason. Procedural fairness requires that an employee be notified of the reason for the dismissal before any decision is taken to terminate employment in order to provide them with an opportunity to respond to the reason identified. Section 387(b) and (c) would have little practical effect if it was sufficient to notify an employee and give them an opportunity to respond after a decision had been taken to terminate employment.106 An employee protected from unfair dismissal should also be given an opportunity to respond to any reason for dismissal relating to the employee’s conduct or capacity.
[58] Just as the question to be addressed by s.387(a) of the Act is whether there was a valid reason for the Applicant’s dismissal, assessing whether notification and the opportunity to respond involves consideration of the valid reason as identified under s.387(a).
[59] The Respondent contends that the Applicant was given ample opportunity to provide a response to the investigation having been made aware of the Respondent’s concerns as early as 20 December 2019. 107
[60] The Applicant acknowledges that the Respondent pressed the Applicant to respond to the allegations against him, but points to his request for additional time. 108
[61] The evidence given by Mr Fridell regarding the investigation and the Applicant’s subsequent dismissal was largely uncontested. Mr Fridell says that on 18 December 2019, after learning of the incident between Ms Neophytou and the Applicant the previous day, he scheduled a meeting to provide the Applicant the opportunity to respond to the allegations given the Applicant had previously been issued his final warning. 109 The meeting scheduled for 20 December 2019 did not proceed as the Applicant was unable to find a support person.110 The meeting was rescheduled for 6 January 2020.111 Mr Fridell says that in early January 2020, he was informed that the Applicant had provided a medical certificate until 13 January 2020.112 When the Applicant did not return to work on 13 January 2020 and a further medical certificate was provided stating that the Applicant was unfit for work, Mr Fridell discussed with Ms Staff the prospect of the Applicant responding to the allegations in writing.113 Mr Fridell says that he was advised by Ms Staff that she had discussed this with the Applicant who had stated that he was too unwell to respond. Mr Fridell asked Ms Staff to request a medical certificate from the Applicant confirming he was medically unfit to respond to the allegations, which was provided a number of weeks later.114 The Applicant was directed to attend a medical appointment with Professor Mendelson on 14 May 2020. The Respondent received Professor Mendelson’s report on 4 June 2020.115 A copy of Professor Mendelson’s report is attached to Mr Fridell’s statement. It was Professor Mendelson’s opinion that the Applicant had the capacity to perform the inherent requirements of his position and the capacity to respond to questions and allegations in relation to his conduct at work.116 Mr Fridell says that following receipt of Professor Mendelson’s report, it was determined that the Applicant would be given a final opportunity to respond to the allegations. By letter dated 28 July 2020, the Respondent asked the Applicant to respond to the allegations by 4:00pm on Monday 3 August 2020. The letter included the allegations ultimately included in the letter of termination and set out earlier in this decision. The Applicant, through his union representative, sought an extension until 7 August 2020 which was refused.117
[62] There is no real issue that the Applicant was both notified of the conduct the subject of the allegations which form the valid reason I have found and given an opportunity to respond. I consider that the Applicant was notified of the valid reason and was given an opportunity to respond to the valid reason. In the circumstances, these two matters (notification and opportunity to respond) weigh against a conclusion that the Applicant’s dismissal was unfair.
Any unreasonable refusal by the employer to allow the person to have a support person – s.387(d)
[63] 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. 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, this section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 118 It may 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.
[64] The Respondent submits that the Applicant was permitted and invited to have a support person present and to assist him. 119
[65] The consideration in s.387(d) does not require or confer a right on an employee to have a support person present at every or even any meeting in relation to a possible dismissal. The relevant consideration is whether an employer unreasonably refused an employee’s request to have a support person present to assist in any discussions relating to dismissal. There is no evidence, and the Applicant does not contend, that there was a refusal on any occasion. Further, the Respondent’s correspondence to the Applicant on 28 July 2020 in relation to the allegations and the investigation process reminded the Applicant of his right to access a support person. 120 This consideration does not weigh in favour of a conclusion the dismissal was unfair.
Warnings regarding unsatisfactory performance – s.387(e)
[66] 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. 121 It is not contended that the Applicant’s dismissal related to unsatisfactory performance. The Applicant was dismissed from his employment for serious misconduct. In the circumstances this consideration weighs neutrally.
Impact of the size of the Respondent on the procedure followed – s.387(f)
[67] The consideration in s.387(f) is not concerned with standards but with the likely impact on the procedures followed of the size of the employer’s enterprise. The Respondent operates a business which is not insignificant in size. It has sufficient resources to enable it to properly understand its rights and obligations in connection with employment and dismissal of staff. There is no suggestion that the size of the Respondent’s enterprise impacted negatively on the procedure that it adopted in effecting the dismissal or investigating the allegations. The Respondent conducted an investigation and utilised its internal resources to obtain advice about the procedure adopted. In the circumstances this consideration weighs neutrally.
Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)
[68] The Respondent submits that it has dedicated human resources specialists who supported and guided the procedures in effecting the dismissal. 122 This consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have the identified impact. Here there was no such absence and so this consideration weighs neutrally.
Any other matters that the Commission considers relevant – s.387(h).
[69] The Applicant raises the following circumstances which he says render the dismissal harsh and unjust:
• his long length of service of 20 years;
• the size of the Respondent and resources available to it; 123 and
• the financial effect the dismissal has had on him. 124
[70] The Applicant sought also to advance a case that his dismissal was harsh because the methods adopted by the Respondent in addressing his conduct were punitive and lacking in sympathy and insight. 125 It was suggested that an alternative approach available to the Respondent was to engage an independent mediator, to ask the Applicant to reflect or to put the Applicant thought some form of sensitivity training.126 Respectfully, the Applicant had been counselled and warned, he had apologised for some of his past conduct and undertook to improve. He knew that the conduct of the kind about which he had been warned and counselled was inappropriate and unacceptable. But conduct of that kind was repeated. That the Respondent tolerated the conduct for as long as it did, speaks, as the Applicant’s representative so aptly described, to the Respondent’s persistence in bring about changed and improved behaviour in the Applicant “out of a misplace sense of compassion”.
[71] The Respondent contends that the Applicant’s length of service and the potential impact his dismissal may have on his future career prospects must be tempered against the fact that he is a highly trained and qualified chemist and analyst. 127 As to the Applicant’s submissions that it was open to the Respondent to employ a less punitive approach to addressing misconduct, the Respondent says that various approaches were employed and ultimately none were successful.128 Given the Applicant’s history of warnings and counselling, I agree.
[72] The Applicant’s age, his length of service, and the financial impact of losing his job are all matters which are to be weighed in the balance in assessing whether the dismissal was harsh, unjust or unreasonable. Specifically, these matters tend to be relevant in assessing whether the dismissal was harsh. These matters are however, to be balanced against the conduct in which I have found the Applicant has engaged viewed against the backdrop of his disciplinary and counselling history. I am satisfied the conduct that I have found the Applicant to have engaged in is serious and justified the dismissal. Though it is doubtless the case that the matters set out above will have some harsh impact on the Applicant they do not weigh so heavily when account is taken of the valid reason and the other matters that either weigh against a conclusion that the dismissal was unfair or are neutral, as to militate against a conclusion that the dismissal was not harsh. The Applicant is guilty of the conduct and so the dismissal was not unjust. Taken together the conduct was serious misconduct having regard to the conduct itself viewed in the context of his disciplinary record. Nor was dismissal disproportionate or otherwise unreasonable considering the conduct and the other circumstances that I am required to take into account, and which I have earlier discussed. The dismissal was not unreasonable.
Conclusion
[73] For the reasons set out above the dismissal of the Applicant was not harsh, unjust or unreasonable. It follows that it was not unfair.
[74] The application for unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
B Terzic on behalf of the Applicant
C Gianatti on behalf of the Respondent
Hearing details:
2020
Melbourne (via-video link)
25 & 26 November
Written submissions:
Applicant, 7 and 16 October and 23 November 2020
Respondent, 17 November 2020
Printed by authority of the Commonwealth Government Printer
<PR726628>
1 Exhibit 17 at [18]; Transcript of proceedings at PN2777-PN2778
2 Transcript of proceedings at PN2944
3 Respondent’s outline of submissions at [56]
4 Form F2 at 3.2
5 Respondent’s outline of submissions at [3]
6 Applicant’s amended outline of submissions at [2] and [20]
7 Respondent’s outline of submissions at [2]
8 Ibid at [5](a); Exhibit 15 at [19]
9 Ibid at [5](b); Exhibit 17 at [20]-[25] and WF-11
10 Ibid at [12]; Exhibit 15 at [16]-[20]
11 Ibid at [14] – [17]; Exhibit 15 at [38]-[47] and JS-17
12 Ibid at [18]; Exhibit 15 at [49]-[65] and JS-32
13 Ibid at [24] – [35]; Exhibit 15 at [78]-[85] and JS-40
14 Transcript PN2921-PN2922
15 Transcript PN2923-PN2924
16 Transcript PN2925-PN2928
17 [1986] HCA 40; (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]
18 See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118
19 (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]
20 (1987) 16 FCR 167 at 184
21 [1986] HCA 40; (1986) 162 CLR 24 at [15], pp 39-41
22 (1995) 185 CLR 410
23 Ibid at [465]
24 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371 at 373
25 Briginshaw v Briginshaw [1938] 60 CLR 336
26 King v Freshmore (Vic) Pty Ltd Print S4213 at [23]-[24].
27 Respondent’s outline of submissions at [56]
28 Ibid at [57]
29 Applicant’s amended outline of submissions at [38] and Transcript of proceedings at PN2920
30 Ibid
31 Transcript of proceedings at PN85 – PN106
32 Exhibit 12 at [105]
33 Ibid at [106](a)
34 Ibid
35 Ibid at [106](e)
36 Exhibit 6 at [102]
37 Transcript of proceedings at PN1278 - PN1281
38 Exhibit 6 at [104]
39 Ibid
40 Ibid
41 Ibid at [105]
42 Ibid
43 Transcript of proceedings at PN1314
44 Ibid at PN1320
45 Ibid at PN1319
46 Ibid at PN1332
47 Exhibit 12 at MN-17
48 Exhibit 11 at [13]
49 Ibid
50 Ibid
51 Ibid at [14] and MT-2
52 See Exhibit 7
53 Exhibit 12 at [109]
54 Ibid
55 Ibid
56 Transcript of proceedings at PN2316
57 Exhibit 12 at [109](d)
58 Ibid at [110]
59 Ibid at [112]
60 Ibid
61 Ibid
62 Ibid
63 Ibid
64 Ibid at [113]
65 Ibid
66 Exhibit 6 at [107]
67 Ibid at [108]
68 Exhibit 7 at [46]
69 Ibid
70 Exhibit 6 at [110]
71 Ibid
72 Transcript of proceedings at PN1388
73 Ibid at PN1393
74 Exhibit 6 at [111]
75 Transcript of proceedings at PN1391 – PN1392
76 Exhibit 6 at [111]
77 Exhibit 12 at MN-18
78 Exhibit 13 at [37]
79 Ibid at [38]
80 Ibid
81 Ibid at [39]
82 Transcript of proceedings at PN1393
83 See Exhibit 7 at [3]-[5]
84 Respondent’s outline of submissions at [42]
85 Ibid at [43]
86 Ibid
87 Exhibit 14 at [27]
88 Ibid
89 Ibid at [27](f)
90 Ibid at [27](g)
91 Ibid at [27](j)
92 Ibid
93 Ibid at [28]
94 Ibid
95 Exhibit 6 at [136]
96 Ibid
97 Exhibit 7 at [56]
98 Exhibit 17 at [78]
99 Exhibit 14 at PK-8
100 Transcript PN2920
101 Transcript of proceedings at PN2925 – PN2927
102 Ibid at PN2928
103 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
104 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [150]–[151]
105 Previsic v Australian Quarantine Inspection Services Print Q3730
106 See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 which was dealing with the corresponding provisions in s.170CG(3)(b) and (c) of the Workplace Relations Act 1996
107 Respondent’s outline of submissions at [61]. The reference in the Respondent’s submissions to 20 December 2020 is plainly a typographical error and should refer to 20 December 2019.
108 Applicant’s amended outline of submissions at [32]
109 Exhibit 17 at [66]
110 Ibid at [69]
111 Ibid at [70]
112 Ibid at [72]
113 Ibid at [73]
114 Ibid
115 Ibid at [75]
116 Ibid at WF-25
117 Ibid at [81]
118 See also Fair Work Bill 2008 – Explanatory Memorandum at [1542]
119 Respondent’s outline of submissions at [64]
120 Exhibit 17 at WF-27
121 Annetta v Ansett Australia (2000) 98 IR 233 at 237
122 Respondent’s outline of submissions at [70]
123 Transcript of proceedings at PN2930
124 Applicant’s amended outline of submissions at [40]
125 Applicant’s amended outline of submissions at [11] and Transcript of proceedings at PN2942
126 Transcript of proceedings at PN2942
127 Ibid at PN3060
128 Ibid at PN3075
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