Dennis Osia v BOC Limited
[2024] FWC 1506
•11 JUNE 2024
| [2024] FWC 1506 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dennis Osia
v
BOC Limited
(U2024/1084)
| COMMISSIONER CRAWFORD | SYDNEY, 11 JUNE 2024 |
Application for relief from unfair dismissal – three valid reasons – procedural fairness afforded - dismissal not unfair – application dismissed.
Background
Dennis Osia (Mr Osia) commenced full-time employment with BOC Limited (BOC) on 16 January 2023 as a Lead Auditor. BOC is a member of the Linde Group which supplies compressed and bulk gases, chemicals and equipment in Australia and around the world. Elgas Ltd is also a member of the Linde Group. Mr Osia’s role required him to conduct or oversee internal audits for both BOC and Elgas Ltd.
Mr Osia was summarily dismissed on 19 January 2024 for serious misconduct.
Mr Osia filed an unfair dismissal application with the Fair Work Commission (Commission) on 1 February 2024. BOC filed an employer response form on 8 March 2024. No jurisdictional objections were raised by BOC.
Mr Osia’s application was not resolved during conciliation. At a mention proceeding on 1 March 2024, I decided to grant permission for BOC to be represented on the basis that this would enable the matter to be dealt with more efficiently. I also determined to conduct a determinative conference rather than a hearing, given Mr Osia intended to represent himself and was not familiar with the Commission’s processes. Directions were issued for the filing of material and the application was listed for determinative conference via video on 15 May 2024.
I issued a production order directed at Mr Osia in response to an application by BOC on 8 May 2024. Mr Osia produced documents in response to this order on 9 May 2024.
Mr Osia represented himself at the determinative conference on 15 May 2024. BOC was represented by Rohan Millar of counsel. Mr Millar was instructed by Jonathan Nguyen and Nick Zavattiero from HWL Ebsworth Lawyers.
Mr Osia was cross-examined for several hours during the determinative conference on 15 May 2024. Given Mr Osia was understandably fatigued from that process, and because it was clear we would not finish closing submissions by the end of the day, I decided to adjourn after Mr Osia’s evidence concluded and to list a further determinative conference for 3 June 2024.
Mr Osia continued representing himself at the second determinative conference on 3 June 2024 and Mr Millar continued representing BOC.
Mr Osia requested the assistance of a Tagalog interpreter during the determinative conferences, and this was arranged by the Commission.
Material relied upon
Mr Osia
Mr Osia relied on the following evidence and submissions in support of his unfair dismissal application:
· Form F2 Unfair dismissal application. Given the application contains some evidence from Mr Osia about his employment and dismissal, I marked the application Exhibit A1.
· A letter from Chris Beston (Head of Safety, Health Environment and Quality (SHEQ) – Region South Pacific) to Mr Osia dated 11 January 2024. The letter states Mr Osia was suspended on full pay effective 11 January 2024 and outlined the following seven allegations against Mr Osia:
i.Mr Osia falsely claimed jury service leave for the days of 24 to 27 October 2023.
ii.Mr Osia misused carer’s leave for absences on 14 to 17 November 2023.
iii.Mr Osia had not complied with his manager’s expectations concerning the arrangement and conducting of audits on various occasions from June 2023 until early January 2024.
iv.Mr Osia behaved inappropriately towards colleagues on various occasions from June 2023 to early January 2024.
v.Mr Osia failed to comply with BOC’s travel policy for a trip to Perth on 11 to 13 November 2023 and for a trip to New Zealand from 5 to 13 December 2023.
vi.Mr Osia failed to comply with directions and requests during a disciplinary process in December 2023 and January 2024.
vii.Mr Osia’s conduct in relation to allegations 1, 2, 5 and 6 demonstrates a pattern of behaviour of misleading and dishonest conduct which has undermined its trust and confidence towards Mr Osia.
The letter states the allegations had been discussed with Mr Osia on 11 January 2024 and invited Mr Osia to attend a further meeting on 17 January 2024, or to respond in writing. The letter informed Mr Osia he could have a support person at the meeting.
I marked the allegations letter Exhibit A2.
· A copy of Mr Osia’s termination letter dated 19 January 2024. The letter states BOC had concluded on the balance of probabilities that Mr Osia had committed the alleged serious misconduct and that he was being summarily dismissed. I marked the termination letter Exhibit A3.
· A letter from Mr Beston to Mr Osia dated 19 January 2024. The letter had a draft deed of release attached. Mr Beston was providing an offer for Mr Osia to consider in relation to his dismissal. I marked the letter and deed Exhibit A4.
· A statement and submission filed by Mr Osia on 4 April 2024. I marked this document Exhibit A5.
· A bundle of documents produced by Mr Osia in response to a production order I issued on 8 May 2024. The documents relate to Mr Osia’s trip to Queensland in October 2023 in response to a jury service summons, Mr Osia’s earnings since his dismissal, and Mr Osia’s attempts to mitigate his loss. I marked the bundle of documents Exhibit A6.
Mr Osia answered some questions from me under an affirmation and was cross-examined on his evidence during the determinative conference on 15 May 2024.
Mr Osia made oral closing submissions at the end of the determinative conference on 3 June 2024.
BOC
BOC relied on the following evidence in opposition to Mr Osia’s unfair dismissal application:
· Witness statement from Samantha Ritter (HR Manager BOC) dated 3 May 2024. Ms Ritter’s statement has the following documents attached:
-SR 1: A copy of the allegations letter sent by Mr Beston to Mr Osia on 11 January 2024.
-SR 2: A copy of emails exchanged between Mr Beston and Mr Osia on 18 December 2023 regarding a disciplinary meeting Mr Beston was attempting to arrange with Mr Osia.
-SR 3: A copy of emails exchanged between Ms Ritter, Mr Beston and Mr Osia on 18 and 19 December 2023 regarding the disciplinary meeting Ms Ritter and Mr Beston were attempting to arrange with Mr Osia. Mr Osia declined to attend the scheduled meeting.
-SR 4: A copy of a letter sent by Ms Ritter via email to Mr Osia on 21 December 2023. The letter indicates Mr Osia cannot ignore a direction to attend a disciplinary meeting and indicated a further meeting would be convened in early 2024.
-SR 5: A copy of an email Mr Osia sent Ms Ritter on 21 December 2023 after receiving her letter. Mr Osia refers to complaints he has raised against BOC employees.
-SR 6: A copy of emails exchanged between Ms Ritter and Mr Osia on 2 January 2024. Ms Ritter was attempting to arrange a disciplinary meeting for 8 January 2024.
-SR 7: A copy of emails relating to Mr Osia’s attempts to arrange for Yuan Mei Woo (Linde’s Head of Human Resources – Asia Pacific) to be his support person. The request was declined.
-SR 8: A copy of emails exchanged between Ms Ritter and Mr Osia on 5 to 8 January 2024. Ms Ritter is attempting to lock in the disciplinary meeting and Mr Osia is referring to his separate complaints.
-SR 9: A copy of an email from Ms Ritter to Mr Osia dated 8 January 2024 which confirms the disciplinary meeting will be held on 11 January 2024.
-SR 10: A copy of an email from Lillian Tsai to Ms Ritter dated 8 January 2024 regarding Mr Osia’s request for Ms Tsai to be his support person. Ms Tsai is based in Taiwan.
-SR 11: A copy of emails between Mr Osia and Sujit Chatterjee (Linde Lead Assessor, Global SHEQ) dated 19 and 20 December 2023. Mr Osia requests that Mr Chatterjee act as his support person. Mr Chatterjee is based in India.
-SR 12: A copy of emails between Ms Ritter and Keith Pace (Linde Executive Director – SHEW Complaint & Assessment) on 8 and 9 January 2024. The emails concern Mr Osia’s request for Mr Pace to be his support person. Mr Pace is based in America.
-SR 13: A copy of emails between Ms Ritter and Dave Copeland (Linde Associate Environment Director Global SHEQ) which confirm Mr Copeland agreed to be a support person for Mr Osia at the meeting on 11 January 2024. Mr Copeland is based in New York.
-SR 14: A copy of Ms Ritter’s notes from a disciplinary meeting held with Mr Osia on 11 January 2024.
-SR 15: A copy of a letter from Mr Beston to Mr Osia dated 11 January 2024 which confirms Mr Osia’s suspension on full pay.
-SR 16: A copy of Ms Ritter’s notes from a meeting held with Mr Osia on 17 January 2024.
I marked Ms Ritter’s statement, and its attachments, Exhibit R1. Ms Ritter was cross-examined by Mr Osia during the determinative conference on 3 June 2024.
· A copy of an email sent by Mr Osia to the Commission on 1 May 2024 regarding documents that had been sought by BOC. I marked the email Exhibit R2.
· A copy of emails sent by Mr Osia to Linde’s Integrity Line from 21 to 24 August 2023. I marked the emails Exhibit R3.
· A copy of notes made regarding Mr Osia’s complaint to the Linde Integrity Line on 20 August 2023. I marked the notes Exhibit R4.
· Witness statement from Mr Beston dated 3 May 2024. The statement had the following documents attached:
-CB 1: A copy of an email Mr Osia sent to a large group of employees on 23 January 2023. The email contains what is alleged to be inappropriate content.
-CB 2: A copy of an email from Mr Beston to Mr Osia on 30 January 2023 where Mr Beston offers to meet with Mr Osia to assist with settling into his employment.
-CB 3: A copy of an email sent by Mr Osia to a large group of employees on 13 March 2023. The email contains what is alleged to be inappropriate content.
-CB 4: A copy of an email sent by Mr Osia to a large group of employees on 11 April 2023. The email contains what is alleged to be inappropriate content.
-CB 5: A meeting invite sent by Mr Beston to Mr Osia concerning a meeting with Mr Osia on 9 August 2023 to discuss Mr Osia’s performance.
-CB 6: Notes made by Mr Beston about the meeting with Mr Osia on 9 August 2023.
-CB 7: A meeting invite sent by Mr Beston to Mr Osia concerning a meeting with Mr Osia on 16 August 2023 to follow up on issues raised at their earlier meeting regarding Mr Osia’s performance.
-CB 8: Notes made by Mr Beston about the meeting with Mr Osia on 16 August 2023.
-CB 9: A copy of an email Mr Osia sent Mr Chatterjee on 18 August 2023 which indicates an upcoming Business Level Assessment would be handled by Mr Beston. Mr Beston says he had specifically told Mr Osia this was his responsibility during their meeting on 16 August 2023.
-CB 10: A copy of a meeting invite Mr Beston sent Mr Osia for a further meeting regarding his performance on 21 August 2023.
-CB 11: A copy of Mr Beston’s notes from his meeting with Mr Osia on 21 August 2023. Mr Beston alleges Mr Osia became agitated during the meeting and made a highly offensive and inappropriate comment.
-CB 12: A copy of an email from Mr Beston to Mr Osia on 22 August 2023 where Mr Beston is following up on a meeting invite request.
-CB 13: A copy of an email from Mr Beston to Mr Osia dated 1 September 2023. The email requests that Mr Osia focus on issues raised at the earlier meetings and particularly: audit arrangements, tasks, and audit protocols.
-CB 14: A copy of an email from Mr Osia to Mr Beston dated 20 September 2023. The email forwards a jury service summons from Ipswich District Court for the period of 16 October 2023 to 27 October 2023. Although Mr Osia’s role with BOC was based in Sydney, his residence on the electoral roll is in Queensland. The summons directed Mr Osia to check each evening whether he was required in court the next day during the period of 16 to 27 October 2023.
-CB 15: A copy of an automatic reply message sent from Mr Osia’s inbox during the period he had been summoned for jury service. The email is not entirely clear regarding Mr Osia’s work arrangements during this period.
-CB 16: A copy of an email from Mr Beston sent to Mr Osia on 23 October 2023 and Mr Osia’s response. Mr Beston was querying whether Mr Osia was on jury duty, annual leave or working from home. Mr Osia responded: “I am working from home today but tomorrow I am in court for at least an hour.”
-CB 17: A copy of a carer’s leave request form submitted by Mr Osia on 23 October 2023 to take leave from 14 to 17 November 2023 to care for his wife. Mr Beston was notified of the request via an automatic email.
-CB 18: A copy of a jury service leave request form submitted by Mr Osia on 24 October 2023 to cover the period of 24 to 27 October 2023. Mr Beston was notified of the request via an automatic email.
-CB 19: An extract from Mr Osia’s work phone log which allegedly indicates he drove to Queensland during work time without approval on 13 October 2023.
-CB 20: A copy of an email Mr Beston sent Mr Osia on 15 November 2023 requesting a copy of Mr Osia’s Statement of Attendance for Jury Service and a certificate covering his carer’s leave. There are further emails exchanged between Mr Beston and Mr Osia on these issues on 20 and 24 November 2023.
-CB 21: A copy of an email from Chris King (Regional Process Risk and Audit Manager) to Mr Beston dated 5 December 2023. Mr King’s email raises concerns about Mr Osia’s performance in relation to recent audits.
-CB 22: A copy of an email from Mr Beston to Will Ellis (NZ Operations Manager) on 14 December 2023 and Mr Ellis’ response dated 15 December 2023. The emails concern Mr Osia’s performance in recent audits.
-CB 23: A copy of Ms Ritter’s meeting notes for the meeting held with Mr Osia on 11 January 2024. Mr Beston was at the meeting and confirms the accuracy of the notes.
-CB 24: A copy of the allegations letter to Mr Osia dated 11 January 2024.
-CB 25: A copy of Ms Ritter’s notes for the meeting held with Mr Osia on 17 January 2024. Mr Beston was at the meeting and confirms the accuracy of the notes.
-CB 26: A copy of Mr Osia’s termination letter dated 19 January 2024.
I marked Mr Beston’s statement, and its attachments, Exhibit R5. Mr Beston was cross-examined by Mr Osia during the determinative conference on 3 June 2024.
In addition to its Form F3 employer response, BOC relied upon an outline of submissions dated 3 May 2024. BOC also provided a document relating to Mr Osia’s earnings after the dismissal as an aide to the Commission. Mr Millar made oral closing submissions at the end of the determinative conference on 3 June 2024.
Statutory provisions – initial jurisdictional matters
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) Mr Osia was protected from unfair dismissal at the time of being dismissed; and
(b) Mr Osia has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether Mr Osia was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Mr Osia was so protected, whether Mr Osia has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a)the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed;
(b) the dismissal was harsh, unjust or unreasonable;
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFDC); and
(d) the dismissal was not a case of genuine redundancy.
Consideration – initial jurisdictional matters
There was no dispute and I find that Mr Osia’s employment with BOC terminated at the initiative of BOC effective 19 January 2024. I am therefore satisfied that Mr Osia has been dismissed within the meaning of s.385(a) of the FW Act.
Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a)whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c)whether the dismissal was consistent with the SBFDC;
(d) whether the dismissal was a case of genuine redundancy.
It is not disputed and I find that Mr Osia’s application was filed within the relevant 21-day period.
It is not in dispute, and I find that Mr Osia was protected from unfair dismissal. Mr Osia had completed the minimum employment period of six months. Mr Osia’s earnings were below the high-income threshold of $167,500.00 (which is exclusive of compulsory superannuation payments)[1] at the time of dismissal.
BOC’s employer response form states it had 1080 employees when Mr Osia was dismissed. That means it is not a small business and the SBFDC is not relevant.
BOC has not argued Mr Osia’s dismissal was a case of genuine redundancy and it clearly was not.
Given my findings in relation to these initial matters, I am required to determine whether Mr Osia was unfairly dismissed.
Statutory provisions - unfair dismissal
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[2]
Consideration – unfair dismissal
Was there a valid reason for the dismissal related to Mr Osia’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[6] “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”[7]
BOC identified seven reasons for Mr Osia’s dismissal on 19 January 2024. I have considered all the evidence and submissions in relation to each allegation and my findings for each allegation are below.
Mr Osia falsely claimed jury service leave for the days of 24 to 27 October 2023.
It is clear Mr Beston put Mr Osia on notice that he was querying Mr Osia’s working arrangements during the week commencing 23 October 2023. Mr Beston sent an email to Mr Osia at 12:51pm on Monday, 23 October 2023 which stated: “Can you please let me know if you are in jury duty, on annual leave or working from home?” Mr Osia replied immediately at 12:51pm on Monday, 23 October 2023 and stated: “I am working from home today but tomorrow I am in court for at least an hour.”[8] I am not satisfied on the evidence there was a sufficient basis for Mr Osia to indicate he would be in court for at least an hour on 24 October 2024.
Mr Osia received a text message at 6:13pm on Tuesday, 24 October 2024 which stated: “You are NOT required to attend Ipswich District Court on 25/10/2023 for jury service.”[9] Later that evening at 9:42pm on Tuesday, 24 October 2023, Mr Osia submitted a claim for jury service leave for the period of 24 October 2023 to 27 October 2023.[10] Mr Osia also received text messages at 5:00pm on 25 October 2023 and at 5:43pm on 26 October 2023 that confirmed Mr Osia was not required to attend Ipswich District Court on 26 and 27 October 2023.[11] Given the system being used by the court to advise potential jurors whether they needed to attend court the next day, I consider Mr Osia must have received a text message during the evening on 23 October 2023 advising him of whether he needed to attend court on 24 October 2023. Mr Osia did not provide the text message and indicated it had been destroyed. I find on the balance of probabilities that Mr Osia received a text message on Monday, 23 October 2023 that confirmed he did not need to attend Ipswich District Court on 24 October 2023.
Given the evidence above, I find Mr Osia claimed jury service leave that he was not entitled to on 24 to 27 October 2023. Mr Osia should have either worked from home on these days, as he had done the previous week, or sought approval to take annual leave if he needed a break from work. Mr Osia benefitted financially from claiming jury service leave because it meant he did not need to use accrued annual leave entitlements for his absences on 24 to 27 October 2023.
I find Mr Osia incorrectly submitted a claim for jury service leave on 24 October 2023 and personally benefitted from making the claim. I consider this conduct provides a valid reason for his dismissal.
For completeness, I do not consider there is sufficient evidence to conclude that Mr Osia committed misconduct by driving from Sydney to Queensland on Friday, 13 October 2023. Mr Osia being summoned to jury service in Queensland while working in Sydney was an unusual occurrence. It is conceivable that Mr Osia could have satisfied his work obligations by being contactable while driving and catching up on emails and other work later in the day. It does appear Mr Osia worked reasonably autonomously, although I accept Mr Osia should have advised Mr Beston of his movements. I would not have concluded Mr Osia’s conduct in travelling to Queensland during working hours constituted a valid reason for dismissal when considered in isolation.
Mr Osia misused carer’s leave for absences on 14 to 17 November 2023.
The evidence establishes that Mr Osia applied on 23 October 2023 for carer’s leave to assist his wife from 14 to 17 November 2023.[12] It is also clear that Mr Osia’s wife never attended a medical appointment around this time.[13]
I do not consider the evidence establishes Mr Osia knew he was not entitled to claim carer’s leave from 14 to 17 November 2023. Given the amount of notice Mr Osia provided, there was ample opportunity for BOC to query the leave before it was taken. I also accept an employee in Mr Osia’s position may not be fully aware of the specific circumstances that trigger an entitlement to access carer’s leave.
I do not consider Mr Osia’s actions in accessing carer’s leave on 14 to 17 November 2023 to assist his wife constituted a valid reason for dismissal.
Mr Osia had not complied with complied with his manager’s expectations concerning the arrangement and conducting of audits on various occasions from June 2023 until early January 2024.
I accept BOC established that several issues had arisen concerning Mr Osia’s performance in arranging and conducting audits during his employment. However, I consider this to be a performance issue as opposed to misconduct. Although Mr Beston clearly took several steps to try and assist Mr Osia in addressing the issues, Mr Osia was never issued with a formal written warning letter or subjected to other disciplinary action. In those circumstances, I do not consider the performance issues provided a valid reason for dismissal.
Mr Osia behaved inappropriately towards colleagues on various occasions from June 2023 to early January 2024.
I accept Mr Beston’s evidence that Mr Osia used extremely inappropriate and offensive language during a meeting with him on 21 August 2023.[14] Mr Osia did not provide a very convincing denial during cross-examination.[15] Mr Osia referred to the comment needing to be taken in context. However, I agree with Mr Beston’s statement that this type of language is not appropriate to be used at work in any context.
I consider Mr Osia’s conduct during the meeting on 21 August 2023 provided a valid reason for dismissal.
I do not consider Mr Osia’s conduct in raising his voice during a meeting about a Kemerton Audit on 10 November 2023 to be sufficiently serious to provide a valid reason for dismissal when considered in isolation.
Mr Osia failed to comply with BOC’s travel policy for a trip to Perth on 11 to 13 November 2023 and for a trip to New Zealand from 5 to 13 December 2023.
Mr Beston confirmed the allegations against Mr Osia relating to the New Zealand trip were not substantiated.[16]
I consider the evidence establishes Mr Osia personally benefitted from BOC paying for a hire vehicle which Mr Osia used for personal travel with his son while holidaying in Perth and that Mr Osia did not use BOC’s approved booking system to arrange his return flight. However, I do not consider these matters are sufficiently serious to constitute a valid reason for dismissal when considered in isolation.
Mr Osia failed to comply with directions and requests during a disciplinary process in December 2023 and January 2024.
I accept Mr Osia failed to comply with a lawful and reasonable request to attend a disciplinary meeting with Mr Beston and Ms Ritter on 19 December 2023. Mr Beston indicated the meeting could be done remotely given Mr Osia was in Queensland and provided an opportunity for Mr Osia to arrange a support person. I do not consider it was acceptable for Mr Osia to state in an email: “You do not need a Teams meeting here” to Ms Ritter on 18 December 2023.[17] That decision was not Mr Osia’s to make. Mr Osia did not respond at all to Ms Ritter’s clear direction to attend the meeting and did not answer her calls or emails on 19 December 2023.[18] While Mr Osia was obviously entitled to strenuously defend any allegations against him, he could not unilaterally decide not to attend a disciplinary meeting as directed.
In determining whether a refusal to carry out a lawful and reasonable direction constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee’s conduct.[19]
I consider Mr Osia’s failure to comply with a lawful and reasonable direction to attend a disciplinary meeting on 19 December 2023 provided a valid reason for dismissal.
I do not consider the situation is as clear in terms of the events in early 2024. The evidence establishes Mr Osia was taking steps to try and organise a support person and he ultimately attended meetings on 11, 17 and 19 January 2024. I do not find Mr Osia’s conduct in relation to the disciplinary process in early 2024 provided a valid reason for dismissal.
Mr Osia’s conduct in relation to allegations 1, 2, 5 and 6 demonstrates a pattern of behaviour of misleading and dishonest conduct which has undermined its trust and confidence towards Mr Osia.
I do not accept BOC has established on the evidence that Mr Osia demonstrated a pattern of “misleading and dishonest conduct.” I do not consider Mr Osia’s conduct in incorrectly claiming jury service leave in conjunction with using a BOC funded hire vehicle for personal travel in Perth constitutes a pattern of “misleading and dishonest conduct.” I do not consider Mr Osia’s inappropriate behaviour during a meeting on 21 August 2023 and his refusal to comply with a lawful and reasonable direction to attend a disciplinary meeting on 19 December 2023 to be “misleading and dishonest conduct.”
I do not consider this allegation is substantiated and do not consider it constitutes a valid reason for dismissal.
Conclusion – valid reason
I have found that there were three separate valid reasons for Mr Osia’s dismissal, specifically:
· Mr Osia incorrectly claimed jury service leave on 24 October 2023.
· Mr Osia behaved inappropriately by making an extremely inappropriate and offensive comment during a meeting with Mr Beston on 21 August 2023.
· Mr Osia failed to comply with a lawful and reasonable direction to attend a disciplinary meeting on 19 December 2023.
Was Mr Osia notified of the reason for dismissal?
Proper consideration of s.387(b) requires a finding to be made as to whether Mr Osia “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[20]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[21] and in explicit[22] and plain and clear terms.[23]
I find Mr Osia was notified of the valid reasons for dismissal via Mr Beston’s letter dated 11 January 2024.[24]
Was Mr Osia given an opportunity to respond to the valid reason?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[25]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[26] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[27]
I find Mr Osia was provided with an opportunity to respond to the valid reasons at the meetings convened on 11, 17 and 19 January 2024.[28]
Did BOC unreasonably refuse to allow Mr Osia to have a support person present to assist at discussions relating to the dismissal?
I find BOC did not unreasonably refuse to allow Mr Osia to have a support person present at discussions relating to the dismissal. Mr Copeland attended all three meetings as a support person for Mr Osia.
Was Mr Osia warned about unsatisfactory performance before the dismissal?
The valid reasons I have identified related to Mr Osia’s conduct and not his performance. This factor is not relevant.
To what degree would the size of BOC’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
BOC is a large business and it followed proper procedures in effecting the dismissal.
To what degree would the absence of dedicated human resource management specialists or expertise in BOC’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
BOC has dedicated human resource management specialists, and it followed proper procedures in effecting the dismissal.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
The fact that Mr Osia was summarily dismissed can be considered as an “other relevant matter” under s.387(h) of the FW Act and a conclusion that summary dismissal was disproportionate to the gravity of the misconduct may support a conclusion the termination was harsh.[29]
However, I consider Mr Osia’s conduct in incorrectly claiming jury service leave and his refusal to comply with a lawful and reasonable direction to attend a disciplinary meeting justified his summary dismissal. Although I consider Mr Osia’s statement during the meeting on 21 August 2023 was serious enough to justify summary dismissal, BOC did not dismiss him until around five months after that comment was made.
Mr Osia’s tenure with BOC was reasonably short and he has found alternative employment. I do not consider there are any other relevant matters.
Is the Commission satisfied that the dismissal of Mr Osia was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in s.387. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[30]
I have found that there were three separate valid reasons for Mr Osia’s dismissal and that BOC followed a proper process in effecting the dismissal. I find that the dismissal was not unjust or unreasonable.
Mr Osia presented as a likeable person with strong religious beliefs. I do not consider he was fully aware of the seriousness of some of the conduct he committed. I suspect this may explain why Mr Beston did not pursue stronger disciplinary action following Mr Osia’s inappropriate and offensive statement at the meeting on 21 August 2023. In any event, I find the misconduct committed by Mr Osia was serious and I do not consider his dismissal was harsh in all the circumstances.
Having considered each of the matters specified in s.387 of the FW Act, I am not satisfied that the dismissal of Mr Osia was harsh, unjust or unreasonable.
Conclusion
I am not satisfied that Mr Osia was unfairly dismissed within the meaning of s.385 of the FW Act.
The application is dismissed.
COMMISSIONER
Appearances:
Mr Osia representing himself.
Mr Millar of counsel, instructed by HWL Ebsworth Lawyers, on behalf of BOC.
Determinative conferences:
2024.
Via video.
15 May.
3 June.
[1] Section 332(2)(c) of the FW Act.
[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[4] Ibid.
[5] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[6] Edwards v Justice Giudice [1999] FCA 1836, [7].
[7] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[8] Exhibit R5, Attachment CB-16.
[9] Exhibit A6, page 14.
[10] Exhibit R5, Attachment CB-18.
[11] Exhibit A6, page 14.
[12] Exhibit R5, Attachment CB-17.
[13] Exhibit R5, Attachment CB-20.
[14] Exhibit R5 at [28] and [29].
[15] Transcript at PN412, PN414 and PN425.
[16] Exhibit R5 at [61](e).
[17] Exhibit R1, Attachment SR-3.
[18] Exhibit R1 at [26].
[19] Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries [1995] IRCA 499.
[20] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[21] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[22] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[23] Ibid.
[24] Exhibit A2, Exhibits R1 and R5.
[25] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[26] RMIT v Asher (2010) 194 IR 1, 14-15.
[27] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[28] Exhibit R5 from [52] to [65].
[29] Ibid at [55].
[30] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
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