Craig Stratton v City of Greater Geelong

[2016] FWC 2844

[2016] FWC 2844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Craig Stratton
v
City of Greater Geelong
(U2015/15767)

VICE PRESIDENT WATSON MELBOURNE, 6 MAY 2016

Application for relief from unfair dismissal – Whether termination of employment harsh, unjust or unreasonable – Whether valid reason for dismissal – Dismissal related to alleged misconduct – Fair Work Act 2009, ss. 387 and 394.

[1] This decision is amended version of a decision given on transcript on 5 May 2016. The application before the Commission is made under s.394 of the Fair Work Act2009 (the Act) by Craig Stratton, seeking an unfair dismissal remedy arising from the termination of his employment by the City of Greater Geelong. I am satisfied that the jurisdictional prerequisites for the application are met. Mr Stratton was an employee of the City of Greater Geelong, he was an employee covered by the unfair dismissal provisions and entitled to seek a remedy. He was dismissed from his employment in a letter dated 10 December 2015, and he filed his application within time and properly invoked the jurisdiction of the Commission.

[2] The issue that I am required to determine is whether the termination was harsh, unjust or unreasonable. I am required to determine that matter by reference to the factors set out in s.387 of the Act. I propose to consider each of those matters in turn. The authorities are quite clear that it is necessary to consider each of those matters insofar as they are relevant and to have regard to those matters as fundamental matters in determining the ultimate question of whether the termination was harsh, unjust or unreasonable.

[3] In each of those cases, it is necessary to consider the evidence and make findings of fact, and then to consider the circumstances as against the relevant criterion. The first factor and the one which has attracted most of the evidence and submissions in this matter is whether there was a valid reason for Mr Stratton's dismissal, related to his capacity or conduct, including its effect on the safety and welfare of other employees.

[4] The reasons for termination are set out both in the letter of termination of 10 December 2015 and the earlier letter of 30 October 2015. The 30 October 2015 letter set out the outcome of the disciplinary enquiry and indicated that the Council Executive, David Goldie, the Manager of Infrastructure Operations, intended to make a recommendation to terminate Mr Stratton's employment, subject to any further matters which were advanced on Mr Stratton's behalf.

[5] The conduct, as summarised, was that Mr Stratton verbally abused and swore at a member of the public on 14 October 2015, including using threatening gestures and verbally abused and swore at his team leader, Cheryl Egan. On the basis of that conduct and in the context of earlier warnings that had been given, the decision to terminate was made by the Council.

[6] The relevant evidence concerned two events on 14 October 2015. Extensive evidence has been given by Mr Stratton and other people present at that time. The evidence in relation to the first incident is in conflict and I am required to make findings of fact based on the conflicting evidence that is before the Commission. Mr Stratton's account is that he made gestures and swore in shock, but not at the driver of the vehicle, because of his distress and safety concerns arising from the vehicle overtaking the street sweeper that had pulled over to the side of the road and stopped at the time.

[7] The evidence of Marli Sallmann, the driver of the vehicle and Ms Egan, the team leader was that the behaviour was far more serious. They said that it involved Mr Stratton going out onto the roadway in front of the vehicle, then walking around the vehicle and abusing the driver of the vehicle, Ms Sallmann.

[8] I do not propose to set out all of the evidence in the matter, but I have considered the conflicting evidence and I accept the account of the events as given by Ms Sallmann and of Ms Egan. I do not accept the account of the events given by Mr Stratton. It appears to me that Ms Egan and Ms Sallmann were not motivated to exaggerate the behaviour or to concoct allegations of misbehaviour.

[9] Mr Stratton obviously served to benefit by the circumstances being seen as less serious. In my view, he downplayed this behaviour in his responses to the allegations during the investigation and in the evidence that he gave to this Commission. I do not consider that his account of the events is a reliable account. I accept the events as portrayed by Ms Egan and Ms Sallmann.

[10] I consider that that behaviour of verbally abusing a member of the public in those circumstances was inappropriate behaviour and it was of a serious nature. Further, I consider that it was in breach of the standards of behaviour that had been established by the City of Greater Geelong and communicated to Mr Stratton.

[11] The second incident that occurred shortly after, when Mr Stratton went to the top of the stairs near the underpass, and was reprimanded verbally by Ms Egan. His response to that involved, on the evidence before me, an aggressive over-reaction that involved yelling, abuse, and insubordination. I find on the evidence that that behaviour on his part was inappropriate and serious misconduct and a breach of the standards of behaviour established by the City of Greater Geelong.

[12] In relation to that matter, there is less dispute on the evidence and I do not consider the matters that really are in dispute have any great bearing on the matter. Ms Egan was entitled to reprimand him about the events that had occurred with a member of the public and Mr Stratton responded quite inappropriately, in my view.

[13] I consider therefore, that the conduct that was relied on by the employer did occur and in assessing the seriousness of that matter, I consider that it was a reason relating to Mr Stratton's conduct that was sound, defensible and well founded and constituted a valid reason for his dismissal.

[14] The next factor that I am required to consider is whether Mr Stratton was notified of that reason and the related matter of whether he was given an opportunity to respond to that reason relating to his capacity or conduct. The evidence before the Commission establishes that there was a detailed investigative process conducted by the City of Greater Geelong. It involved interviews with Mr Stratton, accompanied by support persons, and ultimately after a show cause letter, the letter of 30 October 2015, an opportunity to respond further to the consideration of whether his employment should be terminated.

[15] Mr Stratton did respond. The Australian Municipal, Administrative, Clerical and Services Union responded on Mr Stratton's behalf in a letter dated 11 November 2015 and that letter was taken into account by the Council in determining to terminate his employment by letter of 10 December 2015. On the evidence before me, I find that Mr Stratton was notified of the reason for his dismissal and that he was given an opportunity to respond to that reason.

[16] The other factors that are then set out in s.387 are not of significance in this case, except for possibly the question of paragraph (e) – if the dismissal related to unsatisfactory performance, whether the person had been warned about that unsatisfactory performance before the dismissal. This is a case more of misconduct rather than unsatisfactory performance, but I think that the considerations are analogous. If there are standards of conduct which are expected, they should be communicated. If there are breaches of a minor nature, they should be subject to warnings and communications by the employer, warning the employee of the breaches that are involved and the consequences of any further breach.

[17] In the circumstance of this case, there were earlier warnings related to similar events in a first warning of 6 August 2014 and a second warning dated 29 June 2015. I have regard to those factors in relation to this matter.

[18] There are other issues relating to the size of the employer's undertaking and the impact that size might have on procedures followed in effecting the dismissal. The City of Greater Geelong is a large employer and has established procedures and it would appear has followed those procedures.

[19] Other matters have been raised by the parties and I take into account all of the circumstances including the length of Mr Stratton's employment, the background of his concerns that he voiced on the day concerning safety issues, concerning the cleaning of the underpass and the circumstances of the investigation, and all other issues relating to the culture and behaviour of employees at the workplace. In relation to those matters I find that there was a somewhat robust culture, but that issues of the way in which people related to each other in this team in particular had arisen in the past and had been addressed by the Council with an effort to avoid inappropriate behaviour in the future. Those matters were fresh in the minds of all of those directly concerned as was clear in the evidence before me. That background included the warnings given to Mr Stratton but also Council in implementing training and team building exercises, which reinforced the values of the council and the need to meet appropriate standards of behaviour in dealings with each other.

[20] I have regard to those matters and I must now consider, in all of the circumstances, whether the termination was harsh, unjust or unreasonable. In my view, it cannot be described in any of those ways. The behaviour of Mr Stratton was inappropriate. It constituted misconduct. It related to matters about which he was aware and had been counselled and warned in the past. His behaviour, as I found it to have occurred, was a serious breach of the policies of the City of Greater Geelong. The dismissal occurred after an appropriate procedure was followed that provided every opportunity for input from Mr Stratton.

[21] I think it is also relevant to note that Mr Stratton, in my view, sought to downplay the behaviour and then defend it as appropriate or excusable. He did not accept responsibility for crossing the line and show contrition in a way that might have led to a different conclusion by the employer, or might have impacted on an assessment of whether the termination was harsh in the circumstances.

[22] The question of whether the termination is harsh gives rise to a consideration of whether the sanction of dismissal was disproportionate to the conduct. I do not consider that dismissal was disproportionate in all of the circumstances, and I do not consider that the dismissal was harsh, unjust or unreasonable. It follows from those findings that I dismiss the application.

VICE PRESIDENT

Appearances:

Ms E. Levine, of counsel, on behalf of Craig Stratton.

Ms C. Currie, of counsel, on behalf of City of Greater Geelong.

Hearing details:

2016.

Melbourne.

3, 4 and 5 May.

Final written submissions:

Craig Stratton on 21 March 2016.

City of Greater Geelong on 12 April 2016.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR580070>