Darryl Anglesey v Timberglen Pty Ltd T/A the Boat Bar & Restaurant

[2016] FWC 2907

[2016] FWC 2907

FAIR WORK COMMISSION

DECISION

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

Darryl Anglesey
v
Timberglen Pty Ltd T/A The Boat Bar & Restaurant
(U2015/12626)

COMMISSIONER WILSON HOBART, 11 MAY 2016

Application for relief from unfair dismissal.

[1] Darryl Anglesey was employed in various capacities by Timberglen Pty Ltd, trading as the Mindarie Marina, until he was dismissed on 26 October 2015. At the time of his dismissal he was employed as Executive Chef and was responsible for several food outlets operated by Timberglen, having progressed through several other positions prior to his appointment as Executive Chef in December 2013.

[2] Mr Anglesey was dismissed for allegations of serious misconduct following an investigation by Timberglen. He seeks through this application a finding of unfair dismissal and reinstatement to his former position.

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. Neither party put forward that any of these initial matters required particular consideration. In relation to the elements within s.396, I find that Mr Anglesey’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[4] For the reasons set out below, I am not satisfied that Mr Anglesey’s dismissal was unfair within the meaning of the Act and accordingly his application will be dismissed.

BACKGROUND

[5] Mr Anglesey has an extensive background as a chef and at the time of the hearing had worked as such for approximately 34 years. In addition to being employed as a chef he also has extensive experience in owning and operating a bar and restaurant.

[6] Timberglen provides employment services to Mindarie Marina Pty Ltd, which operates food and beverage venues at the Mindarie Marina in Western Australia. There are four such venues, collectively referred to in this decision as Mindarie;

• the Boat Tavern (referred to as The Boat);



• the Indian Ocean Brewhaus and Grill;



• Mindarie Marina Hotel; and



• the Mindarie Marina Function and Reception Centre. 1

[7] Mr Anglesey has had two periods of employment at Mindarie; the first which was between 2005 and 2009; and more recently he was employed by Mindarie from May 2011. That second period of employment commenced as Head Chef in the Mindarie Function and Reception Centre. In May 2012 he added to that role the position of Head Chef of Indian Ocean Brewhaus and Grill. In December 2013 he was promoted to the position of Executive Chef responsible for all food outlets operated by Timberglen at Mindarie. With that promotion, he added The Boat Tavern and the Dome Café to his existing responsibilities for two food outlets. At the time of dismissal Mr Anglesey’s remuneration was in the order of $90,000 per year. 2

[8] The reasons given for Mr Anglesey’s dismissal surround allegations put to him in a meeting on 26 October 2015 that he had “deliberately altered” certain stocktake figures which would result in a financial gain to him through bonus payments as well as potentially deflecting Timberglen’s attention from the performance of the venues for which he was responsible. 3

[9] Witness evidence in this matter was received from three people as follows;

• Darryl Anglesey, the Applicant;



• St John Hammond, sole Director of Timberglen Pty Ltd and the current manager of Mindarie Marina Pty Ltd; and



• Luke Symmonds, Venue Manager for the Boat Tavern.

[10] Mr Hammond’s evidence includes that, having been appointed to manage Mindarie’s operations from 31 August 2015, deficiencies had been identified in the performance of The Boat. In particular the gross profit percentage had been fluctuating and was frequently below its budget. His evidence was that typically stocktakes would be undertaken on two-week rotations, but that when the food gross profit percentage margin was below standard or erratic they would be undertaken weekly. 4

[11] The stocktakes were undertaken by staff using tablets, which then provided information for use by the company in two directions; the first was to compute a gross profit percentage report discussed in weekly management meetings; and the second was to more formally provide the results to the company’s financial manager who would incorporate the material into the company’s financial reports. As might be expected, the stocktakes required a physical counting or weighing of all of the stock kept within a venue. More than one person was required to undertake the work. The count of the product was then costed according to historical information and compared against the venues sales for the period.

[12] Mr Anglesey, along with others, was required to be involved in this task.

[13] In the first three weeks of September 2015 stocktakes in The Boat were undertaken weekly. At the start of October 2015 Mr Hammond was concerned about whether the stocktakes were being carried out properly. This followed a report made to him by Mr Symmonds on 3 October 2015, in which he had said “words to the effect that the closing stock figures had been misrepresented by Mr Anglesey for the last two stocktaking periods”. 5 There followed further discussions between the two about the allegations that Mr Symmonds had made.

[14] Mr Hammond’s evidence is that he became worried about the accuracy of the stocktakes and that he wanted Mr Anglesey “out of the whole stocktaking process”. 6 On 11 October 2015, he told Mr Anglesey that he ”was not to have anything to do with tomorrow’s stocktakes”7, however when he said that, he had not disclosed his concerns to Mr Angelsey. He made arrangements for another manager to then physically supervise the next food count for The Boat, due on 12 October 2015, as well as to ensure that particular chefs were available to assist with the stocktakes.8 Those plans, according to Mr Hammond’s evidence, did not eventuate, with him giving the following evidence;

“56. On Sunday 11 October 2015, Luke Symmonds telephoned me and said that there were no chefs rostered on to do the stocktake. I was expecting the Second Chef from The Boat to be rostered on to conduct the stocktake with Michael Waterman because I had given instructions that that was to happen.

57. I ascertained through a conversation with Luke Symmonds that Darryl Anglesey had adjusted the chefs' rosters so that they wouldn't be available to undertake the stocktakes.

58. I told Luke Symmonds to arrange for chefs to be available to perform the stocktakes and reiterated that Darryl Anglesey was not to be involved in the stocktakes.

59. I then telephoned Darryl Anglesey and asked him why he had changed the chefs' rosters. Mr Anglesey said that the stocktakes wouldn't be independent because there were chefs there. I said to Mr Anglesey; "You are not to have anything to do with tomorrows' stocktakes".” 9

[15] Mr Anglesey broadly corroborated this position in his own evidence with him saying that in the course of a phone call with Mr Hammond, he was told the following;

“You are not allowed to do any further stock takes. We have decided to perform independent stock takes.” 10

[16] That conversation was shortly before Mr Anglesey was to go on leave for two weeks and his evidence is that the statement by Mr Hammond did not concern him, with him being “grateful for the assistance”. 11

[17] Before he returned from leave, on 22 October 2015 Mr Anglesey received a text message from Martin Smith, Mindarie’s Managing Director, drawing his attention to a letter sent to him by email regarding a meeting on 26 October 2015. The letter informed Mr Anglesey of the following;

“Dear Darryl

Re. Notice of Meeting

You are required to attend a meeting in The Boardroom, Mindarie Marina with St John Hammond & Martin Smith on Monday 26^th October 2015 at l0am to discuss the following:

• The falsification & misrepresentation of closing food stock figures



• Inflation of food stock figures for financial gain through bonus payments

You are entitled to bring a support person to attend the meeting if you wish. It is your responsibility to make these arrangements.

This meeting may result in disciplinary action and/or termination of your employment.

You will be required to provide a response to these allegations during this meeting.

Please contact Martin Smith by 5pm on Friday 23rd October 2015 if you are unable to attend this meeting.

You are not required to attend work before the meeting.

Martin Smith
Visit Mindarie” 12

[18] Mr Anglesey confirmed his attendance at the meeting and in the course of doing so raised several questions to Mr Smith, including a request for all details regarding the company’s allegations. Mr Smith’s response in that regard included;

“The meeting is to discuss your conduct in the workplace with reference to the specific allegations contained in the notice of meeting. The information contained in the notice is sufficiently detailed to allow you to prepare for the meeting. Specific dates, times and figures will be provided at the meeting.” 13

[19] Mr Smith’s correspondence also reinforced that the purpose of the meeting was to discuss the nature of the allegations and to allow Mr Anglesey to respond accordingly.

[20] The meeting proceeded on 26 October 2015 with Mr Anglesey attending with his partner as a support person. Mr Hammond and Mr Smith were in attendance for Mindarie.

[21] Unusually for matters of this type, Mr Anglesey or his support person made a video recording of the meeting. Although there is a dispute between the parties as to whether permission was given by Mr Hammond and Mr Smith for the proceedings to be videoed, Mr Hammond concedes that he knew a recording was being made, but not a video recording. 14 Given that the recording evidently was made on a tablet in full view of the parties in the room, I consider it unlikely that they were not aware that a video would be produced of the meeting and not just an audio recording. It would seem improbable in this day and age that a party knowing that they were being recorded on a tablet would think that the recording was only an audio recording.

[22] In any event the recording has been introduced by Mr Anglesey in evidence and is relied upon by me in the course of making this decision.

[23] There were three relevant meetings on 26 October 2015. Two were in the morning, which Mr Anglesey’s support person’s notes records as commencing at 10:00 AM and 10:55 AM; and a third, which she records as having commenced at 4:30 PM.

[24] The first morning meeting was videoed mostly in entirety, with the recording proceeding for slightly over 11 minutes. That meeting is a discussion between the Respondent’s representatives and Mr Anglesey about Mindarie’s allegations and includes numerous questions or contentions put forward by Mr Anglesey in his defence. The second part of the meeting was only recorded briefly because, upon returning to the room, Mr Hammond objected to a continuation of the recording. 15

[25] The allegation put to Mr Anglesey in the first part of the meeting surrounded a contention on the part of Mr Hammond that “he had deliberately entered false figures for weeks 8 and 9 into the Food GP Calculator for the Boat in order to enhance his prospects of obtaining a bonus”. 16

[26] The evidence given regarding the second morning meeting was that, having considered the responses given by Mr Anglesey in the first part of the meeting, Mr Hammond informed Mr Anglesey that he wished to investigate the allegations further and that he was suspended on full pay and would be advised about what would happen next. Later that day, 26 October 2015, Mr Anglesey was asked to return to a further meeting at 4 PM, but which his support person’s notes records starting at around 4:30 PM, at which time he was informed by Mr Hammond that he would be dismissed.

[27] Mr Anglesey’s dismissal was confirmed to him in a letter from Mr Hammond dated 28 October 2015.

[28] Mr Anglesey puts forward in his witness statement the further elaboration of how an error may have been made, arguing, in effect, that the relevant spreadsheet cells were pre-populated, saying;

“68. During stock takes, Symonds told me or the Boat's Head Chef that the closing stock figures needed to be in order to reach our gross margin. This figure was created by inputting a tentative figure into the closing stock column on the stock take calculator along with sales, opening stocks and purchases.

69. Symonds and I used the stock take calculator to pick up discrepancies in the actual stock take. If the closing stock take figure was significantly higher or lower, Symonds and/or I would review the stock take for anomalies” 17

[29] Mr Symmonds’ evidence on this matter included the following;

“… it is correct that before starting a stocktake we would sometimes put figures into the food GP calculator to see what figure we came up with as a percentage, but when we did that we always immediately deleted the figure. We always put in round figures. It would never be appropriate to leave that figure in the food GP calculator, as it was nothing more than an estimate of what was needed to reach the appropriate percentage.” 18

[30] I make the following findings on the oral evidence.

[31] Mr Symmonds’ evidence was credible, although somewhat guarded. He reported that he became concerned about discrepancies in the stocktake report and reported this to Mr Jones, who at the time was Mindarie’s General Manager. Mr Jones, however, was slow to act on Mr Symmonds’ concerns. He then took the matter up with Mr Hammond who commenced an investigation of the subject. His next involvement was on 26 October 2015 when he was asked to prepare a report for Mr Hammond, which he did. 19 The report is measured and factual and appears capable of acceptance. While it was put to him that he had an axe to grind because of a warning given to him at an earlier time, he denied the possibility of any animosity against Mr Anglesey, and denied that Mr Anglesey had anything to do with the warning. In all Mr Symmonds’ evidence is unaffected by the claims of credibility against him and I accept his evidence and prefer it to the extent of any inconsistency with Mr Anglesey’s evidence.

[32] Mr Hammond’s evidence is also generally capable of acceptance, however he appeared with a desire to present as someone in absolute control of the things that had occurred after he became Mindarie’s manager, but with a desire to avoid any knowledge or curiosity of the past. That feature sits at odds with someone who obviously has an intimate knowledge of the business, being Timberglen’s sole director. For example, he had no prior knowledge of the warning given to Mr Symmonds and had merely passed the document on to his solicitors without questioning what it contained. He learned of Mr Symmonds’ evidence about the stocktake procedures only a few days before the hearing; believed what was reported as completely inappropriate, but did nothing to enquire whether the system was still in place or instruct that it no longer occur.

[33] Despite those shadows his evidence is capable of acceptance to the extent that it is inconsistent with Mr Anglesey’s.

[34] In relation to Mr Anglesey’s evidence, the video recording of the disciplinary interview on 26 October 2015 creates a level of improbability about Mr Anglesey’s version of events that causes me not to treat his evidence as entirely credible.

[35] While the Respondent has plenty to say about the propriety of the video recording, after viewing the recording and comparing it with Mr Anglesey’s oral evidence, one is left with the impression of a meeting comprising of a very prepared and in control Applicant and an equally prepared Respondent. It is rare that meetings such as these are recorded by parties, let alone introduced into evidence in the Fair Work Commission by an applicant.

[36] Two impressions result from the recording in relation to the Applicant, noting that his face is never seen in the recording. The first is that, despite his emails to the Respondent prior to the meeting and his evidence and submissions to the Commission since, he knew enough about the subject matter of the meeting to be prepared with several folders of material to which he made reference on multiple occasions during the meeting. This suggests the Applicant may have had more knowledge about the allegations against him then he would prefer the Commission to believe. The second is that there comes a point where Mr Anglesey’s verbal demeanour changes to the point of being on the front foot, seeking to verbally push back the contentions of Mr Hammond.

[37] The context of the meeting is one in which the Applicant learned – inadequately so, he argues – that his employer thought he had falsified data in a management report. However his confidence level rises to a point in which he was firmly assertive of his rights and dismissive of the views of his employer. Mr Anglesey’s verbal demeanour in the video was quite different from when he gave his evidence in the Commission. Whereas he appears assertive and emboldened in the recording of the meeting on 26 October 2015, seemingly from the increasingly favourable direction to which the meeting was headed, at least to him, his evidence before the Commission was measured and respectful. Perhaps he did not believe much might come of the meeting on 26 October 2015, however the differences in presentation are illustrative.

[38] In all, I am left with an impression that, in the first meeting on 26 October 2015, Mr Anglesey believed he had nothing to explain or apologise for and that he had successfully overcome whatever it was that his employer was putting to him. He was not satisfied Timberglen had the evidence it claimed. Because of that, he saw no need to be candid, or to express regret, or to be truthful.

LEGISLATION

[39] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009, which is as follows;

387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

CONSIDERATION

[40] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account the legislative factors set out earlier.

[41] A consideration of the evidence presented in this matter leads to the following findings which inform my determination of the application;

• Mr Hammond commenced as the manager of Mindarie Marina on 31 August 2015. Upon appointment he was concerned that the food gross profit margin for the Boat was fluctuating and frequently falling below the budgeted level of 75%. 20 In week 6, the stocktake conducted on 31 August 2015, there was a gross profit calculation of 70.3% and in week 7, the stocktake conducted on 7 September 2015, the gross profit percentage was calculated at 74.2%;21

• Mr Hammond communicated his expectation to managers that food gross profit was expected to be stable and at or above the budget of 75%; 22



• The stocktakes that are the subject of contest in this matter were conducted on 14 September (week 8) and 21 September 2015 (week 9);



• The stocktakes in question were undertaken by Mr Anglesey and another chef and the result of the stocktake was checked by Mr Symmonds, who found the input data to be incorrect; 23



• Mr Symmonds communicated the discrepancy to Mr Wadhwa, the company’s Financial Controller. They jointly did a random audit of the stocktake sheet and concluded it to be correct. They both went to the Heads of Department meeting but did not raise their own concerns. While at the Heads of Department meeting Mr Hammond and Mr Symmonds heard Mr Anglesey announce a week 8 gross profit margin of 75.2%. 24 After the Heads of Department meeting Mr Symmonds told Mr Jones, then General Manager of Mindarie Marina, of his concerns;

“21. After the Heads of Department meeting I spoke to Mr Mark Jones who was the General Manager at Mindarie Marina at that time. Mark Jones was Darryl's immediate boss.

22. Mark told me to leave it, and see how the figures went the following week.

23. The next Monday, after the stocktake had been undertaken, Mark Jones and I looked at the figures. This time we could see that the correct figure for the stocktake was $16,466.80 but the amount input into the food GP calculator was $16,200.

24. Mark Jones said he would look into the matter. We then went to the Heads of Departments meeting.

25. I don't recall anything in particular being said about The Boat's food GP percentage at that meeting.” 25

• The closing stock figure for week 8, 14 September 2015, was higher than it actually was and the closing stock figure for week 9, 21 September 2015 was lower than it actually was. In week 8 a closing stock figure of $16,466 had been entered when source documents show the figure should have been $15,870.75. In week 9 a closing stock figure of $16,200 had been entered when the closing stock value was $16,466.80; 26



• These values had been inserted into a spreadsheet referred to by Mr Anglesey as the “stocktake calculator sheet” 27, about which Mr Anglesey says;

“63. The stock take calculator is a management tool that is used as an indicator on the performance of the business. In my experience, it was not used to calculate bonuses. Bonuses are calculated by reference to the information contained in stock sheets that are subject to validity checks by the General Manager and the Financial Controller.” 28

• The stocktake calculator sheet also showed the gross profit percentage in week 8 was 75.2% and in week 9 was 76.3%; 29



• Under Mr Anglesey’s contract of employment, potential profit-related bonuses were triggered if gross profit was above 75%; 30



• The gross profit food budget was a component of the Bonus Scheme; 31



• Mr Hammond had been alerted to the possibility of a stock discrepancy by Mr Symmonds. 32

(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)

[42] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 33 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.34 The Commission will also take into account the need for honesty on the part of the applicant during the course of an investigation.35

[43] In this matter, the Commission is required to reconcile the competing versions of evidence that have been put forward on the one part by Mr Anglesey and on another by Mr Hammond and Mr Symmonds on behalf of the Respondent. There is no question on the evidence that the incorrect values were recorded in the closing stock values for weeks 8 and 9. One the one hand Mr Angelsey put forward that he was not the only person responsible for inputting information into the spreadsheets during stocktakes and that in addition to him 15 or more people had access to and could have changed the values in the stocktake calculator. On the other, he ultimately concedes that the errors were his; that they were inadvertent; but that he did not profit from them;

“72. Having now had a chance to review the stock take calculator, I believe that when I entered the final amount for the closing stock on 21 September 2015, I made a clerical error and placed the sum of $16,466.00 in the wrong column, overriding the correct closing stock figure of $15,870.00 which had been correctly entered for the week ending 14 September 2015.

73. The correct closing figure of the stocktake ending 21 September 2015, is identical to what was inputted into for stock take ending 14 September 2015. If I had been able to complete stock takes after 21 September 2015, I would have identified this clerical error and likely corrected the stock take calculator so it was consistent with the stock take sheets I was shown in the meeting.

74. I did not receive a gross profit bonus for the week ending 14 September 2015 or the week ending 21 September 2015. Bonuses were not paid weekly. If payable, bonuses were paid at the end of the monthly cycle.

75. During the meeting I asked Hammond if he believed I had received bonuses to which I was not entitled. He did not provide a response to my question.” 36

[44] In preferring Mr Hammond and Mr Symmonds’ evidence to that of Mr Anglesey I am led to finding that more than likely the errors were deliberate and were made with the intention of improving an otherwise weak gross profit result and outlook. If not corrected Mr Anglesey was liable to be held accountable for the fact that there had not been changes in the venues’ gross profit position.

[45] Evidentially the fact of the errors has been established and Mr Anglesey had the motivation to record the information in the manner alleged. Mr Anglesey, on the evidence put forward both by Mr Hammond and Mr Symmonds, immediately then went to a management meeting in which he referred to the corrected result; appeared to be happy in doing so; and received gratitude for what had occurred. The fact that Mr Symmonds raised the matter with Mr Jones who apparently did nothing about the issue is of course a concern; however against that situation is the fact that Mr Symmonds independently reported the problem to Mr Hammond who then did take action, initially by endeavouring to test the situation by attempting to sideline Mr Anglesey from the stocktake to be undertaken on 12 October 2015, and then conducting a more detailed investigation of the circumstance when Mr Anglesey was on leave for the fortnight from that date. The product of that investigation was then directly put to Mr Anglesey in the meetings that took place on 26 October 2015.

[46] Mr Hammond’s evidence is that in the course of the first meeting on 26 October 2015 he put to Mr Anglesey the allegations that he had deliberately entered false figures for weeks 8 and 9 in order to enhance his prospects of obtaining a bonus. 37 The notes taken in the meeting by Mr Anglesey’s support person record Mr Hammond and Mr Smith as saying that while they had evidence to support the allegations they did not know how many or the value of the bonuses Mr Anglesey “allegedly recorded fraudulent amounts for in order to financially gain through the bonus system”.38 Mr Anglesey denied entering false figures into the calculator and put to Mr Hammond on that occasion that someone else could have entered the figures.39 Mr Anglesey’s evidence is that during the meeting he strongly denied the allegations and asked for more time to review the spreadsheets so that he could provide a response.40

[47] I am satisfied that at the time Timberglen came to dismiss Mr Anglesey it had a valid reason to do so, relating to his conduct.

[48] That reason was that in Timberglen’s opinion Mr Anglesey had incorrectly recorded stock take information which benefited him, potentially financially through decisions to be made by the company about bonus arrangements, as well as potentially by ensuring that Timberglen would not be as critical of his work performance as might otherwise be the case for reason of the failure to meet its expectations about venue gross profit.

[49] The investigation undertaken by Timberglen relied significantly upon the evidence of Mr Symmonds as well as its observations of Mr Anglesey’s behaviour in the Heads of Department meeting on 14 September 2015. It also took into account Mr Anglesey’s behaviour around the weekend of 12 October 2015 when, notwithstanding that it had put in place arrangements to ensure that nominated staff were involved in undertaking stocktakes around that time, Mr Anglesey undid those arrangements and had to then be told that he was not to have anything to do with the stock take.

[50] The combination of those matters enables me to be satisfied, upon the balance of probabilities, that Mr Anglesey had deliberately made incorrect entries to the stock take calculator.

[51] I am satisfied that Mr Anglesey was insufficiently candid or cooperative with Mr Hammond and Mr Smith when they met with him on 26 October 2015 to discuss with him the details of the allegations that had been identified in their earlier correspondence to him on 22 and 23 October 2015. Mr Anglesey came to the meeting very well prepared and it is reasonable to find that he had undertaken significant research about what was to be discussed and by that time had formed his views about what he would say in response to the allegations being made against him. Notwithstanding that he puts the later defence of inadvertence to the Commission for the errors that he agrees were factually his, the argument that he put to Timberglen in the meeting on 26 October 2015 was that the information could have been recorded by many people. While his witness statement later confirms that it was his error, such was not identified to the Respondent’s representatives in the meetings and nor was there anything said either explaining why the error may have come about or that he took responsibility for what had happened.

(b) whether the person was notified of that reason

[52] I am satisfied that Timberglen notified Mr Anglesey of its reasons for termination. He was told of those reasons on the day of dismissal, 26 October 2015, with those reasons being later communicated through a letter to him from Mr Hammond. The notes of the termination meeting on 26 October 2015 taken by Mr Anglesey’s support person recalled that Mr Hammond “opened the meeting by saying that they stood by their allegations + considered that DA’s alleged actions amounted to gross misconduct. DA’s employment would therefore be terminated effective immediately. DA will be issued with a letter of termination by CIB Wednesday 28 October”. 41

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

[53] Consideration of the criterion of whether an employee has been given an opportunity to respond to the reason for dismissal is consequential to a finding there is a valid reason for dismissal. 42

[54] The evidence allows findings that Mr Anglesey was aware of the nature of the allegations made against him and their seriousness. While the allegations had not been detailed to him, he attended the meeting on 26 October 2015 with material that makes it clear he knew enough of the allegations to be able to respond to them with documents as well as an oral response.

[55] Rather than putting forward at that time that an error may have been made by him, which is what he now puts to the Commission, he instead denied the allegations outright. While it could be said that the allegations were a compound of not only recording incorrect information, but then also benefiting from it and that Mr Anglesey was denying the compound of the allegations, I am satisfied that there was sufficient information before him for him to understand not only the precise nature of what was being said against him but also the gravity of the issue.

[56] Further, there were two meetings with Mr Anglesey on the morning of 26 October 2015 in which the allegations were discussed and Mr Anglesey was given an opportunity to respond with such matters as he desired. He was given advance notice of the company’s intention to meet with him. He came to the meeting fully prepared including with significant information that he offered in his defence.

(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

[57] Mr Anglesey attended the meetings on 26 October 2015 with his partner and support person. There was no endeavour on the part of Timberglen to refuse her attendance.

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

[58] Mr Anglesey’s dismissal relates to misconduct and not to unsatisfactory performance. Further consideration of this criterion is therefore not required.

(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

[59] There is no evidence which would suggest that the size of Timberglen’s enterprise was likely to impact on the procedures followed in effecting Mr Anglesey’s dismissal. Further I am satisfied that Timberglen had access to professional assistance and advice at all relevant stages of the process of dismissing Mr Anglesey.

(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

[60] There is no evidence before me about Timberglen having a lack of dedicated human resource management specialists or expertise in its enterprise. The evidence instead leaves me satisfied that Timberglen had access to professional assistance advice from its industry association prior to dismissing Mr Anglesey and that the advice given to it by the association assisted in the design and delivery of the procedures it followed in effecting his dismissal.

(h) any other matters that the FWC considers relevant

[61] I do not find any other matters that are relevant and which require being taken into account.

CONCLUSION AND ORDERS

[62] Having considered in detail all of the criteria within s.387 of the Act I find that there are no matters that would cause me to find that irrespective of there being a valid reason for the dismissal of Mr Anglesey, his dismissal was otherwise harsh, unjust or unreasonable.

[63] I therefore do not consider that Mr Anglesey has been unfairly dismissed.

[64] As a result of my finding that Mr Anglesey has not been unfairly dismissed, his application will now be dismissed and an Order to that effect will be issued at the same time as this Decision.

COMMISSIONER

Appearances:

Mr T Kucera (Turner Freeman Lawyers) for the Applicant.

Ms F Stanton (MDS Legal) for Timberglen Pty Ltd.

Hearing details:

2015.

Perth:

21 March.

 1 Exhibit R6, Witness Statement of St John Hammond, [1]-[3].

 2 Exhibit A1, Witness Statement of Darryl Anglesey, [9]-[14].

 3   Ibid Attachment DA 6.

 4   Exhibit R6 [8]-[9].

 5 Ibid [45].

 6   Ibid [49]-[50].

 7 Ibid [50].

 8   Ibid [51]-[55].

 9   Ibid [56]-[59].

 10 Exhibit A1 [21].

 11 Ibid [22].

 12   Ibid Attachment DA 3.

 13   Ibid Attachment DA 4.

 14 Exhibit R6 [71].

 15 Ibid [72].

 16 Ibid [68].

 17   Exhibit A1 [68]-[69].

 18   Exhibit R8, Witness Statement of Luke Symmonds, [35].

 19   Exhibit A7.

 20   Exhibit R6 [35]-[36].

 21   Exhibit A1 Attachment DA 8.

 22   Exhibit R6 [35], [38].

 23   Exhibit R8 [14]-[16].

 24 See Exhibit R6 [42]; Exhibit R8 [20].

 25   Exhibit R8 [21]-[25].

 26   See Exhibit R6 [46], [48]; Exhibit R8 [36]-[37].

 27   Exhibit A1 Attachment DA 8.

 28 Ibid [63].

 29   Ibid Attachment DA 8.

 30   Exhibit R7, Contract of Employment of Darryl Anglesey, Schedule D.

 31 Exhibit R6 [64].

 32   See Exhibit R6 [45]–[46]; Exhibit R8 [26]-[27].

 33   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].

 34   Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

 35   Streeter v TelstraCorp Ltd (2008) 170 IR 1.

 36   Exhibit A1 [72]-[75].

 37 Exhibit R6 [68].

 38   Exhibit A1 Attachment DA 9.

 39 Exhibit R6 [69].

 40 Exhibit A1 [43].

 41   Ibid Attachment DA 9.

 42   Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at [41].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR580164>