Dale Woodworth v Stornoway Maintenance Pty Ltd

[2013] FWC 8937

[2013] FWC 8937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dale Woodworth
v
Stornoway Maintenance Pty Ltd
(U2013/7589)

COMMISSIONER DEEGAN CANBERRA, 15 NOVEMBER 2013

Application for unfair dismissal remedy - no valid reason for termination - dismissal was unfair - compensation ordered.

[1] This decision arises from an application made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Dale Woodworth (the applicant) alleging he had been unfairly dismissed from his employment with Stornoway Maintenance Pty Ltd (the respondent).

[2] The applicant’s employment was terminated on 23 January 2013. The application was lodged on 18 March 2013, 33 days after the time for lodgement had expired. Following a decision, [2013] FWC 4211, made on 28 June 2013 allowing further time for the filing of the application, directions were issued for the filing of submissions and supporting statements in relation to the substantive matter. The matter was set down for hearing on 10 September 2013 and was subsequently also listed for 13 and 26 September 2013.

Background

[3] The applicant had been employed by the respondent as a road maintenance worker from 1 July 2011.

[4] On or about 17 January 2013, the applicant was informed that a complaint alleging harassment had been lodged against him by Aaron Webb, an employee of the respondent.

[5] The following day, the applicant along with his union representative attended a meeting with two representatives from the company where the allegation was put to him. At the end of the meeting, the applicant was suspended on full pay pending an investigation into the complaint.

[6] On 21 January 2013, the applicant was handed a notification of complaint and suspension of employment which informed him of the result of the investigation. The notice also directed the applicant to attend an interview on 24 January where he would be given an opportunity to respond and specifically warned the applicant not to contact the complainant or witnesses and that if he did so, he would be terminated.

[7] On 22 January at 9.39pm, the complainant, Mr Webb, received a phone call allegedly from the applicant during which threatening remarks were made.

[8] On 23 January, the respondent proceeded to summarily dismiss the applicant on the basis that he had made contact with the complainant and a witness to the alleged incident, in direct breach of the respondent’s advice.

The Applicant’s Evidence

[9] The applicant filed a statement of evidence 1 in support of his application. It was his evidence that he had approximately 20 years of experience in road works and asphalting and worked as a road maintenance worker for the respondent from 1 July 2011 until his employment was terminated on 23 January 2013.

[10] According to his evidence, on or about 15 January, he was asked to do traffic management and to ensure employees complied with all safety standards, including the need to ensure high visibility vests were properly fastened.

[11] On 16 January, while undertaking traffic management duties, the applicant noticed Aaron Webb’s vest was not fastened and raised the matter with him. When Mr Webb responded that the vest was too small and that he had placed an order for the appropriate size but it had not yet arrived, the applicant stated “just do what I do. Go down to Rent a Tent and get them to sow (sic) a few vests together” 2. As it was apparent that Mr Webb took offence, the applicant apologised.

[12] It was the applicant’s evidence that the following day he was called to a meeting with Travis Bentley, Operations Manager, and a supervisor, Robin Ponting. At the meeting, Mr Bentley advised the applicant that Mr Webb had lodged a complaint against him alleging harassment, and that he would like to discuss the matter. The applicant responded stating that he would not participate in such a conversation unless he had representation. The following day, he attended another meeting with a union representative and the allegation that he was harassing Mr Webb over his weight was put to him. At the end of the meeting, he was stood down on full pay pending an investigation into the complaint.

[13] According to his evidence, he was handed correspondence on 21 January which confirmed the suspension of employment and advised that:

• an investigation had been conducted in relation to the complaint;



• based on evidence gathered his behaviour appeared malicious and represented serious misconduct;



• there were further allegations of verbal altercations with other employees;



• an opportunity to respond to the allegations would be provided;



• a final warning received on 13 September 2012 should be noted;



• he was to be stood down and not return to the workplace;



• it was illegal to attempt to victimise or seek any retribution action against the complainant or witnesses and if he did, his employment would be terminated;



• that he should not contact any of the respondent’s employees; and



• an interview would be held on 24 January regarding the allegations.

[14] On 23 January, the applicant received correspondence 3 which alleged that he had made contact with Mr Webb, the complainant, and had made threatening remarks towards him and that the applicant had attempted to contact one of the witnesses.

[15] That same day, the applicant contacted Don Hayes, a union representative, regarding the matter. He was advised later that day by Mr Hayes that Mr Webb had alleged that he had phoned him the previous night and made threatening remarks and that therefore, he had breached a term of his suspension.

[16] The applicant denied the allegation and provided evidence of phone records 4 for his mobile number, his partner’s mobile number and his home phone number which indicated that no phone calls had been made by him to Mr Webb’s phone at the time alleged.

[17] At the hearing, the applicant denied making any threatening remarks to Mr Webb at any stage.

[18] In response to a claim by Mr Webb that he may not recall the phone call as he was taking strong pain medication the applicant claimed that Travis Bentley was aware that he was taking the prescription drug Endone and that, to his knowledge, the drug does not cause mental impairment and had affected him in any way in performing his job or in life.

[19] Under cross-examination, the applicant was asked about instances or allegations of intimidation or aggression made against him. He conceded that he had received a warning but that it was resolved. 5 The applicant was confronted with the disciplinary interview record6 and questioned about his written response, ‘I agree I should improve my attitude and behaviour (sic) I will try my hardest in the future’. When asked about that response, he claimed he was “coached” into it and that it was not a true record. He stated that he told the management representative that he would agree with it to keep his job and to keep the peace.

[20] When asked, the applicant maintained that he did not make the alleged phone call. He stated that he went to bed at about ‘8.30/quarter to 9’ 7 and that he was with his partner, Lisa Weedon, at home from 5 until he went to bed. He reiterated that he did not make the call, did not instruct anyone to make the call, and did not know who made the call.8

[21] It was also the applicant’s evidence that while he did attempt to make contact with one of the witnesses involved in the complaint, this occurred on Saturday 19 January. He explained that, under the circumstances, he had called the witness Mr Jones for the purpose of cancelling a pre-arranged trip to collect firewood from a property. The applicant claimed that he spoke to Mr Jones’ wife and that she agreed to relay the message to Mr Jones. No Stornoway matter was discussed. 9

[22] The applicant’s attention was then drawn to the Telstra phone records that had been produced and which indicated that the phone call was made from a number registered under the name Tony Scott. When questioned, the applicant denied knowing Tony Scott 10 (who was the father of the complainant’s ex-partner). He stated that it was ‘awfully strange that I'd make a phone call on his girlfriend's father's phone’11 and that ‘I can't explain how he's making allegations that I've used a phone of a person I've never met’12. He reiterated that he did not make the phone call and claimed that he did not have Mr Webb’s contact details, did not know Mr Webb’s ex-partner (Jessica Scott) or her father and did not use her father’s phone.13

[23] When it was put to the applicant that the respondent had not been aware he was taking the prescription drug Endone, the applicant claimed that he had told Mr Bentley on two occasions. He stated that in early 2012, Mr Bentley took him to the doctors due to a swollen ankle and that during that visit the doctor had asked him whether he needed any pain medication to which he replied ‘No. I currently take Endone’ and that the doctor in response said ‘Yes, I'm aware of that. It's on your record from your medical’. 14 When asked whether the doctor talked to him about the impact of Endone, the applicant stated that he did not need to as he had been taking it since 1993, is aware of what it can do if abused and does not abuse it.15 He claimed that his use of Endone was on his records and that he never hid the fact he took them.16 He did not agree that the drug could cause difficulties in driving equipment or cars or could cause confusion of the mind.17 He denied taking an Endone tablet on the night of the phone call and explained that Endone counteracts the other non-prescription tablet he took for sleeping and that he would not take Endone, a drug which would keep him awake, if he wanted to go to sleep.18

[24] Lisa Weedon, the applicant’s partner of approximately 10 years, filed a statement of evidence 19 in support of the applicant’s case. It was the witness’ evidence that the applicant did not make the alleged phone call as she was in the company of the applicant the entire evening from 5:00pm on Tuesday 22 January until the applicant went to bed at approximately 8:30pm that night.

[25] Under cross-examination, the witness denied that it would have been possible for the applicant to use another phone to make the call without her knowledge. When asked whether she was with him at the time of the alleged phone call at 9:39pm, she recalled going to bed about that time.

The Respondent’s Evidence

[26] Evidence was given for the respondent by:

• Aaron Webb, employee at Stornoway;



• Travis Bentley, Operations Manager at Stornoway;



• Tony Scott, Jessica Scott’s father; and



• Jessica Scott, Aaron Webb’s ex-partner.

[27] Aaron Webb filed a witness statement 20 in support of the respondent’s case. His evidence covered the phone call at 9.39pm allegedly made to him by the applicant. According to his evidence, he was with his then partner, Jessica Scott (now ex-partner) on the evening of the phone call. He was asleep and was woken up by a call on his mobile phone from a private number at 9:39pm. He then put the phone on loud speaker, as he had always been untrusting of private calls, and Ms Scott heard the entire conversation.

[28] It was his evidence that he was certain the caller was the applicant as he had a very distinctive voice and further, the nature of the conversation was such that it related to a bullying and harassment complaint he had made against the applicant and that only Mr Bentley, Mr Ponting and three other witnesses knew about the complaint. His partner, Jessica Scott, was only informed of the complaint after the phone call when she asked why the threat was made against him. According to Mr Webb, the applicant said to him that if he did not withdraw the statements and say that it was all lies that he knew where he lived and was coming to get him. Mr Webb felt threatened by the phone call. On 23 January, the following day, he showed the record of the private number on his phone to Mr Ponting and confirmed with him that the applicant had threatened him by making that phone call.

[29] It was also his evidence that his then partner, Jessica Scott, had informed him that the applicant’s name had been mentioned a number of times in her household. The witness also stated that the applicant had been taking a strong prescription drug called Endone and had not advised Travis Bentley, despite there being a requirement to advise management of taking such drugs.

[30] Under cross-examination, the witness agreed that it was company policy to fasten high visibility vests. He explained that he had ordered one and was told by Mr Bentley and Mr Ponting to wear the one he had. He also confirmed that the applicant had apologised after making the offensive comment about his vest.

[31] When questioned about the phone conversation he allegedly had with the applicant on 22 January, he stated that the caller identified himself as ‘Dale Woodworth’ 21. When asked why that was not in his statement, he stated that it was ‘an error on my behalf’22.

[32] The witness was then asked about the relationship he had with Ms Scott’s father, Tony Scott. He stated that he did not get along with him but did not believe it was a hostile relationship. 23 When the applicant confirmed that he is now aware of the call being made from Tony Scott’s phone, he was asked how he thought the applicant could have had access to his partner’s father’s phone. In response, he stated that he believed the applicant knew Tony Scott as his partner had told him that the applicant’s name had been mentioned in the house.24 When it was put to him that the phone call was actually made by Tony Scott, the witness stated that he did not believe it was his voice25. He also did not believe that he was mistaken about the identity of the caller.26

[33] When re-examined, the witness explained that it could not have been Tony Scott who made the phone call as he was not on talking terms with him and his then partner, Jessica Scott, did not know about the complaint until after the call was made. 27 He clarified that he had put the phone on loud speaker at that time due to previous abusive private numbers and that, at the time of the call, he was laying on the couch and the phone was sitting beside him.

[34] The evidence of Travis Bentley, Operations Manager for Stornoway in the North East of Tasmania, was set out in his statement 28. According to his evidence, the final warning signed by the applicant was a valid warning. It related to a serious altercation caused by the applicant and intimidation of other employees through the use of abusive language. The witness regarded this as a serious matter and it was his intention to formalise the warning by recording it on the applicant’s personnel file regardless of whether the applicant consented to the warning.

[35] It was the witness’ evidence that on 17 January during the investigation interview relating to Mr Webb’s complaint, the applicant became very agitated and argumentative. It was also his evidence that the applicant had Mr Webb’s personal phone number as he had rung him a number of times to arrange delivery of various items.

[36] At the hearing, he confirmed that the employees had other employees’ phone numbers, particularly around 22 January. 29 Further, he explained that all employees had to go through a medical which involved filling out a medical questionnaire30, giving employees an opportunity to declare any health conditions or anything that may adversely affect them. He pointed out that in response to a question which asked whether they are receiving any medical treatment or on medications or drugs, the applicant had marked ‘no’. Mr Bentley stated that he raised the requirement to provide such information on a number of occasions in toolbox meetings.31 It was his evidence that he had never heard of the drug Endone until this proceeding. He confirmed, and was certain that there was no mention made by the applicant of any prescription drugs such as Endone during the doctor’s appointment which he attended with the applicant in relation to an ankle injury, and could not recall any such conversation taking place. A letter32 from the medical centre involved confirmed that the doctor’s notes of the visit advised ‘Nurofen analgesia’ and did not contain any mention of Endone.

[37] Under cross-examination, the witness stated that he had consulted mainly with Suzanne Whitmarsh about the termination of the applicant’s employment but had also briefed Tim Gardiner. When questioned about the letter of termination being under his hand, the witness stated that the decision was made through consultation by the senior management and that he himself did not make the decision to terminate the applicant but presented the evidence in which he was asked to forward.

[38] When asked about other informal complaints regarding the applicant’s behaviour and whether those allegations were ever put to the applicant, the witness stated that he had on a number of occasions spoken to the applicant about his wit, sarcasm and work. 33 The witness agreed that there we no safety complaints about the applicant and that the applicant had proven to be a hard worker, took his job seriously, presented to work every morning, did what was required and made himself available after hours for work.34

[39] Mr Bentley claimed to be able to recall, in particular detail, the meeting with the doctor in relation to the applicant’s ankle injury and that he did not recall any medication being given, or refused, at that time.

[40] When asked about phone numbers being issued to employees, he stated that he was aware that Mr Webb and the applicant had spoken on the phone to sort out work sites. However, he could not provide a specific day, site or situation that this occurred.

[41] When re-examined, the witness recounted the circumstances which lead to the applicant’s final warning. He stated that, at the time, he had explained to the applicant that it was a serious event as it related to abusive speech, obstructive behaviour, poor attitude, and intimidation of fellow employees. He claimed to have given the applicant an opportunity to reply and advised that he did not have to sign the paper but that it would still be filed on his personnel file.

[42] On the basis of the information he was presented, Mr Bentley believed that the termination of the applicant’s employment was a result of the breach of the respondent’s warning not to make contact with those involved rather than due to the bullying and harassment complaint itself. 35 He stated that he had spoken to Mr Webb, made sure that he was certain of his statement and that Mr Webb had confirmed that he was and produced the phone. He conceded that he did not put that allegation to the applicant before terminating him as he was following the process of collecting the details and presenting them to senior management. He claimed that when he spoke to Mr Webb about the phone call, he had no reason not to believe him and reiterated that he did state to Mr Webb that it was a serious accusation. He claimed that he did not take the matter lightly.

[43] Tony Scott gave oral evidence at the hearing. According to Mr Scott, although the phone number from which the call to Mr Webb was made is registered in his name, he did not use the phone but rather his son has use of it. He claimed that he had never seen the applicant before, does not know him and had never heard of his name.

[44] Under cross-examination, Mr Scott reiterated that he did not know the applicant and had no idea who he is. He stated that he had never heard the applicant’s name mentioned in his household and did not know why he was called to be present at the hearing.

[45] Jessica Scott, Mr Webb’s partner at the time of the phone call, filed a statement 36 and was cross-examined. It was her evidence that Mr Webb was with her on the evening of the phone call and that he was asleep but woken up by the phone call at 9.39pm. According to the witness, Mr Webb put the phone on loud speaker and she heard the entire conversation. At the time, she was not aware who the caller was but was later informed by Mr Webb that it was Dale Woodworth and that he worked with him at Stornoway. It was her evidence that the caller had said to Mr Webb that if he did not withdraw the statement and say that it was all lies that he knew where he lived and was coming to get him. Shortly after Mr Webb hung up the phone, she asked Mr Webb about the threat and was told that it was made as a result of a bullying and harassment complaint he made against the caller. It was also her evidence that this was the first time she heard of the complaint.

[46] It was also Ms Scott’s evidence that her brother, in fact, has use of the phone which is registered in her father’s name. She claimed that although she did not recognise the identity of the caller, she was sure that it was not her father or brother who made the call. She further claimed that the applicant’s name, Dale Woodworth, had been mentioned in conversations at her parent’s residence. She was unable to explain how the call came to be made from the phone registered in her father’s name.

[47] Under cross-examination, she agreed that it was unusual for Mr Webb to put his phone on speaker. When asked how many times she saw Mr Webb do so, she claimed that the phone call in question was the only time Mr Webb had put the phone on speaker while she was around. 37

[48] When questioned about the situation surrounding the time of the phone call, she stated that she and Mr Webb were laying in bed when they received the call and when she told Mr Webb that the phone was ringing, he picked up, answered it, put it on speaker and the caller then identified himself as Dale Woodworth. 38 When the witness was asked to explain why Mr Webb says he was on the couch and she says they were in bed, she replied ‘I do not know’39. When it was put to the witness that she did not hear the caller identify himself as ‘Dale Woodworth’, she maintained that she heard the words ‘Dale Woodworth’.40

[49] When asked in what context she heard the name ‘Dale Woodworth’ used in her family household, she stated that she was not sure but that she heard the name and it was mentioned once or twice.

[50] When re-examined, she reiterated that she had heard the name before but was unsure who, in her household, she had heard it from. She could not be positive about whether they were in bed or on the couch at the time of the phone call but agreed that Mr Webb could have been mistaken about where he was.

Submissions for the Applicant

[51] It was submitted on the applicant’s behalf that he was a conscientious worker who takes safety on the job seriously. After setting out the events that led to the applicant’s dismissal it was put by Mr Flanagan that the applicant was dismissed as a result of a complaint made by Mr Webb that the applicant had made a threatening telephone call to him. It was noted that the investigation conducted into this complaint did not provide any opportunity for the applicant to respond and that the applicant was told of the allegation in the letter terminating his employment.

[52] It was put that the failure to allow the applicant an opportunity to respond amounted to a denial of natural justice 41. Further, it was submitted that on the basis of the objective evidence it was apparent, on the balance of probabilities, that the applicant did not make the threatening phone call as had been alleged. In the absence of any evidence that the applicant had in fact made the phone call, there was no valid reason for the termination. In this regard it was submitted that the evidence of the applicant and his partner should be preferred over that of the complainant and his partner, particularly in light of the fact that the phone that made the call was owned by the complainant’s ex-partner’s father. The evidence of Mr Scott that the applicant was unknown to him was relevant in this regard. In addition, the evidence of the complainant and his ex-partner was contradictory as to their location at the time the call was made and whether the complainant was in the habit of receiving abusive calls from private numbers.

[53] It was also submitted that the second reason given for the dismissal (the applicant contacting another witness) was not put to him and he was given no opportunity to respond to that allegation. The evidence is that this contact had not occurred as alleged.

[54] It was submitted for the applicant that the evidence was unequivocal that the applicant was only notified of the reason for dismissal after the termination had taken effect.

[55] So far as whether the applicant had been warned was relevant, it was put that the warning signed by the applicant in September 2012 did not relate to the type of harassment or bullying that was alleged in relation to the termination.

[56] It was noted that the employer was not a small enterprise and that before terminating the applicant’s employment advice was taken from senior management and a HR consultant.

[57] Finally it was argued that the inferences drawn by the respondent which resulted in the applicant’s termination could not reasonably have been drawn had the respondent conducted a proper investigation and given the applicant an opportunity to respond to the allegations. In the circumstances the applicant was seeking reinstatement without loss of pay.

Submissions for the Respondent

[58] It was put for the respondent that the applicant had been employed for less than two years. It was conceded that there was no problem with the applicant’s work ethic but he had been spoken to about his wit, sarcasm and attitude on occasions. In addition the applicant had been given a formal warning in relation to these very matters in September 2012.

[59] It was the respondent’s case that the applicant was dismissed for flouting a clear instruction not to contact or interfere with the complainant or witnesses to a complaint against him that was under investigation. It was put that it was reasonable for the company to accept Mr Webb’s allegation that the applicant had made a threatening phone call to him.

[60] The respondent did not accept the argument put for the applicant that the call was made by a member of Jessica Scott’s family, who owned the phone from which the call originated. It was the respondent’s case that the phone was made available to the applicant by Mr Scott. Further the inconsistencies in the evidence of Mr Webb and Ms Scott concerning the receipt of the phone call were unimportant. It was put that both witnesses stated that the applicant identified himself and Ms Scott’s evidence was firm that she had heard Mr Woodworth’s name mentioned in her parents’ household.

[61] While it was conceded that there was some conflicting evidence it was put that on the balance of probabilities it was likely that the applicant made the threatening call in direct contradiction to the written warning he had received not to contact Aaron Webb, the complainant, or the other witnesses. The deliberate flouting of the lawful instruction provided a valid reason for the summary dismissal. It was also argued that it was unlikely that Mr Webb would have fabricated the complaint about the phone call given the serious consequences he would have faced if the fabrication was discovered. In addition it was put that since Mr Webb and Ms Scott had separated there was no reason why she would have continued to support him in his claim about the phone call.

[62] The respondent reiterated that it was likely that Mr Scott gave the applicant his phone and that his evidence that he did not know the applicant should not be believed, given the evidence of Ms Scott who claimed that she had heard the applicant’s name.

[63] It was contended for the respondent that the evidence of the applicant about his use of the drug Endone and whether the respondent was aware of this was an indication of his preparedness not to tell the truth. The applicant’s claim to have declared his use of the drug at his pre-employment medical had been shown to be untrue, as had been his claim that Mr Bentley was aware of his use of Endone due to his attending a medical appointment with him in February 2012. It was put that these matters called into doubt the honesty and credibility of the applicant and the veracity of the entirety of his evidence. According to the respondent the applicant’s failure to declare his Endone use at his medical was grounds for dismissal.

[64] According to the respondent, weight should be given to the evidence of Mr Webb of his concerns should the applicant be reinstated. In addition it was noted that the investigation into the original complaint against the applicant had not been completed and, were he to be reinstated that process would continue. It was put that the earlier formal warning given to the applicant in 2012 would be taken into account in that process.

Submissions in response

[65] It was argued for the applicant that it had been his belief that he had declared the use of Endone at his pre-employment medical but given that he returned a negative drug test during the test, it was likely that he was mistaken in his belief that he was taking Endone at the time. It was put that, in those circumstances, he had not failed to disclose the medication.

Consideration

[66] I am satisfied that no jurisdictional issues arise in this matter and that, at the time of the termination of his employment, the applicant was a person protected from unfair dismissal. The employer is a not a small business and there is no claim that the dismissal was a case of genuine redundancy.

[67] Section 387 of the Act sets out those matters that must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable. I will now deal with each of those matters.

Valid reason

[68] I am unable to be satisfied that there was a valid reason for the termination of the applicant’s employment. It was the respondent’s position that the applicant was terminated for both making a threatening phone call to an employee who had made a complaint against him and for contacting a witness to the same complaint, in contravention of a direct instruction from his employer. On the evidence presented I must find, on the balance of probabilities, that the applicant did not make the threatening phone call as alleged, nor did he contact a witness involved in the investigation of the complaint.

[69] Since the termination of his employment the applicant has denied making the phone call to Mr Webb. The phone call was not made from a phone owned by the applicant or his partner but a phone owned by Mr Webb’s partner’s father.

[70] I have no doubt that, at the time he complained to his supervisor about the phone call on 23 January 2013, Mr Webb believed the telephone call he received the previous night had been made by the applicant. I am satisfied that Mr Webb was mistaken about the identity of the caller and in his half-awake state jumped to the conclusion that the call was from the applicant, given his recent complaint about him.

[71] I did not find the evidence of Mr Webb or his former partner particularly convincing. They gave conflicting accounts as to where the call was taken and contradicted each other when questioned about Mr Webb’s propensity to put his phone on speaker. In addition, Mr Webb’s evidence changed during the proceedings. In his statement he claimed that he had recognised the applicant’s voice while at the hearing he stated that the applicant had identified himself. There was nothing to support Jessica Scott’s claim that the applicant’s name had been mentioned in her father’s home and this was denied by Mr Scott who was adamant that he did not know the applicant. No evidence was brought to show any connection between the Scott family and the applicant. There was evidence, however, of animosity between Ms Scott’s family and Mr Webb. In those circumstances, I find that it is more probable that the phone call made to Mr Webb was made by a member of Ms Scott’s family or someone known to them, and not by the applicant.

[72] There was no evidence to support the respondent’s claim that the applicant contacted another witness involved in the complaint. The applicant gave a reasonable explanation for his phone call to the home of a fellow worker on Saturday 19 January and no evidence was adduced which cast any doubt on that explanation.

[73] It may be that, had the applicant not been dismissed and the investigation into Mr Webb’s complaint continued, the applicant would have had his employment terminated. As the matter had not been properly investigated and the evidence about the issue was not extensive I am unable to find that the matter constituted a valid reason for dismissal. Similarly, whether the applicant failed to advise his employer he was taking the prescription drug Endone, is a matter that would require further investigation before it could be said to amount to a valid reason for the termination.

Notified of the reason

[74] The applicant was notified of the reasons for his dismissal by the termination letter hand-delivered to him on 23 January 2013.

Opportunity to respond

[75] The applicant was not given any opportunity to respond to the allegations which resulted in his termination. This was a glaring deficiency in the procedures adopted by the respondent in effecting the termination. The applicant was entitled to answer the allegations made against him. The failure of the respondent to provide him with an opportunity to respond to the allegation made by Mr Webb renders the termination particularly unfair.

[76] It was rash for the respondent to proceed to terminate the applicant’s employment on the basis of the claim made by Mr Webb without, at least, asking the applicant if he had in fact made the phone call. Given the seriousness of the matter steps could have been taken to determine who owned the phone from which the call was made. Had the respondent had this information at an earlier stage it may have called into question the justification for the termination.

Support person

[77] As no discussions were held with the applicant about the termination this criterion has no application.

Unsatisfactory Performance

[78] In September 2012 the applicant was warned about his conduct and attitude. 42 This warning did not concern conduct of the type which formed the basis for the decision to terminate the applicant’s employment.

Size of the Employer

[79] The employer is a relatively large company. There is no reason why the procedures adopted in effecting the termination should have been in any way impacted upon by the size of the organisation.

Absence of dedicated human resource specialist or expertise

[80] There was no claim put for the respondent that a lack of dedicated human resources specialists had affected the respondent’s ability to properly deal with the matter of the applicant’s dismissal. The evidence was that advice was sought from senior management and a human resources consultant before the decision to terminate the applicant’s employment was taken. It is not clear why, given the access to such advice, a decision was taken to terminate the applicant’s employment without the allegations claimed to justify such a termination first having been raised with the applicant.

Other matters

[81] In determining this matter I have had regard to the applicant’s relatively short (19 months) period of employment. I have also had regard to the fact that at the time the applicant was dismissed he was suspended while a complaint against him was being investigated.

[82] While I have found that, on the balance of probabilities the applicant did not make the telephone call as alleged, the applicant’s credibility was called into question during the hearing. It appears that the applicant’s claim that he had made his employer aware of his Endone use at his pre-employment medical is not supported by the objective evidence. Similarly, his claims about Mr Bentley’s knowledge of his Endone use and the remarks of the doctor at the medical centre, are not supported by the evidence of Mr Bentley or the notes of the doctor 43 that were tendered in evidence.

Conclusion

[83] In the absence of any valid reason for the termination and given the respondent’s failure to both properly investigate the matter of the telephone call and to allow the applicant an opportunity to respond to the allegations made against him, I find that the dismissal was unfair.

Remedy

[84] The applicant is seeking reinstatement. The respondent objects to reinstatement and indicates that if reinstatement were to be ordered the investigation into the original complaint against the applicant would continue to finality. It was noted that the applicant was on a final warning and had admitted to having made the remark that provoked the complaint. Further, the respondent indicated that it considered the applicant’s non-disclosure of his use of Endone as serious and this might well lead to the termination of his employment.

[85] In all the circumstances of this matter I do not consider reinstatement is appropriate.

[86] I do consider that I should make an order for compensation in lieu of reinstatement.

[87] Having regard to the matters set out in s.392 of the Act:

• There is no claim that any order would affect the viability of the respondent’s business;



• The applicant was employed for only 19 months;



• Had the applicant not been dismissed in the manner that he was I am satisfied that his employment was not particularly secure and may not have extended more than a few more weeks;



• There is no evidence of attempts by the applicant to mitigate his loss;



• There is no evidence of any income earned by the applicant since the termination or that he has gained employment.

[88] I have also taken into account the manner in which the applicant’s employment was terminated, without notice and without any chance to respond to the allegations made against him.

[89] While it had been my intention to order that, in lieu of reinstatement, the respondent pay to the applicant an amount equal to 16 weeks’ remuneration, I am satisfied that that amount should be reduced in accordance with s.392(3).

[90] The applicant admitted making the remark the subject of the investigation. At the time he was on a final warning in relation to his attitude and conduct. Clearly, the respondent took the matter very seriously as the applicant was stood down while the matter was investigated. In those circumstances, I am satisfied that the applicant’s misconduct did contribute to the respondent’s decision to dismiss him and any compensation must be reduced by an appropriate amount. In my view, in all the circumstances, an appropriate amount for the reduction is four weeks.

[91] Therefore, I will make an order that, in lieu of reinstatement, the respondent pay to the applicant an amount equal to twelve (12) weeks’ remuneration. I do not consider that any further reduction is necessary for an income that may have been earned by the applicant since the termination.

[92] An order [PR544516] giving effect to this decision is published separately.

Appearances (10 September):

Mr R. Flanagan for the Applicant.

Mr B. Fitzgerald with Ms S. Whitmarsh, for the Respondent.

Appearances (13 and 26 September):

Mr R. Flanagan for the Applicant.

Mr B. Fitzgerald for the Respondent.

Hearing details:

2013.

Hobart:

September 10.

Launceston:
September 13.

Canberra and Hobart (video hearing):

September 26.

 1   Exhibit W1.

 2   Exhibit W1 at Paragraph 8.

 3   Exhibit W1, Annexure A.

 4   Exhibit W1, Annexure B.

 5   Transcript PN382.

 6   Exhibit S1.

 7   Transcript PN453.

 8   Transcript PN509.

 9   Transcript PN 560-562.

 10   Transcript PN478.

 11   Transcript PN515.

 12   Transcript PN516.

 13   Transcript PN571.

 14   Transcript PN574.

 15   Transcript PN576.

 16   Transcript PN578.

 17   Transcript PN579.

 18   Transcript PN584.

 19   Exhibit W3.

 20   Exhibit S2.

 21   Transcript PN845-846.

 22   Transcript PN856.

 23   Transcript PN866, 868.

 24   Transcript PN872.

 25   Transcript PN876.

 26   Transcript PN908.

 27   Transcript PN952-954.

 28   Exhibit S4.

 29   Transcript PN1004.

 30   Exhibit S5, ‘Consent to Collection of Health & Medical Info’.

 31   Transcript PN1009.

 32   Exhibit S6.

 33   Transcript PN1106.

 34   Transcript PN1120.

 35   Transcript PN1172.

 36   Exhibit S7.

 37   Transcript PN1307.

 38   Transcript PN1312.

 39   Transcript PN1319.

 40   Transcript PN1324.

 41   Dewson v Boom Logistics Ltd[2012] FWA 9027.

 42   Above n 6.

 43   Above n 31.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR544515>