Edward Williamson v Semsley Pty Ltd T/A Senior Helpers Adelaide Northern Suburbs
[2017] FWC 3273
•18 JULY 2017
| [2017] FWC 3273 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Edward Williamson
v
Semsley Pty Ltd T/A Senior Helpers Adelaide Northern Suburbs
(U2017/2962)
COMMISSIONER HAMPTON | ADELAIDE, 18 JULY 2017 |
Application for relief from unfair dismissal – alleged serious misconduct arising from incidents with fellow employee and representative of a client – disputed events – findings made based upon credit – serious misconduct found – whether valid reason – conduct in breach of reasonable standards of behaviour – valid reason for dismissal – whether procedure fair despite some reservations about process – whether harsh in the circumstances including some mitigating context – dismissal not harsh, unjust or unreasonable – application dismissed.
1. Background and case outline
[1] Mr Edward Williamson has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, Semsley Pty Ltd T/A Senior Helpers Adelaide Northern Suburbs (Senior Helpers). 1
[2] Senior Helpers is operated by Ms Linda Sharrock and Mr Scott Sharrock and provides in-home care to the elderly including companionship and assistance with daily living activities. Senior Helpers employs in the order of 65 casual employees from what is a relatively small administrative operation involving the Sharrocks and two or three other employees.
[3] Mr Williamson commenced his employment with Senior Helpers in February 2015 as a Personal Care Attendant (PCA) on a casual basis. In August 2016, Mr Williamson began working in the office on a part-time basis as a “Scheduler”. The employment of Mr Williamson in that role was more akin to a regular casual who received an hourly rate with the casual loading without leave entitlements. This role involved, amongst other things, acting as a broker between clients and PCAs, ensuring that service requests were appropriately filled in a timely manner. Mr Williamson continued to complete the occasional shift as a PCA.
[4] Mr Williamson was dismissed on 15 March 2017 on the grounds of alleged serious misconduct, in particular two alleged incidents involving a fellow employee, Ms Anna Perriam, and earlier an employee of a major corporate client, both during a period while Ms and Mr Sharrock were away from the office.
[5] Mr Williamson contends that while Mr and Ms Sharrock were away in the week commencing 6 March 2017, Ms Perriam began micro-managing him, withholding vital information and criticising him. After several days of what he describes as bullying behaviour, Mr Williamson submits that he “broke down” and this resulted in an argument with Ms Perriam. Shortly thereafter, he raised this behaviour with Mr Sharrock by telephone. Upon the Sharrocks’ return, he was immediately dismissed from his employment.
[6] Mr Williamson further contends that he did not engage in any misconduct in relation to Ms Perriam or the employee of the major client that would justify his dismissal and that he was dismissed as a result of raising a bullying and harassment complaint with his employer. Indeed, Mr Williamson denied engaging in any of the serious conduct as alleged by the respondent witnesses. 2 He also contended that he was denied the opportunity to lodge a s.789FC stop bullying application because of his dismissal and that this was procedurally unfair. In that regard, Mr Williamson did not directly suggest that this was the reason for the dismissal, but rather, a consequence; although he does contend that if he had “kept his mouth shut”, he would still have his job.
[7] Mr Williamson also contends that there had been previous incidents where Mr Sharrock had lost his temper in the workplace and that this represented a precedent. 3 In light of what he contends was the absence of any previous warning or disciplinary action and the failure to follow procedural fairness, the dismissal was unfair and he seeks reinstatement to his former position, or in the alternative, compensation.
[8] Senior Helpers contends that while Mr and Ms Sharrock were away, Mr Williamson and Ms Perriam were directed to work together and “take care” of the administrative side of the business. The respondent submits that it told both Mr Williamson and Ms Perriam that while Mr and Ms Sharrock were away, Ms Perriam was to be “in charge”. Senior Helpers also contends that during this period Mr Williamson engaged in serious misconduct by yelling at and intimidating Ms Perriam, including throwing items around the room and repeatedly slamming the office door. Senior Helpers submits that this altercation was loud enough to be heard by someone in the neighbouring office. It also submits that Mr Williamson put at risk one of its main contracts by his rude behaviour toward this client’s employee.
[9] Senior Helpers further contends that Mr Williamson had previously been given an informal verbal warning regarding his conduct in the office and the need to work as a team member. In addition, the respondent contends that it discussed the alleged conduct with Mr Williamson before the decision to dismiss was made. Senior Helpers oppose any potential reinstatement order on the basis that it can have no confidence that Mr Williamson would be able to work as part of the Senior Helpers team, in particular with Ms Perriam, in the future.
[10] Accordingly, there is a significant factual dispute about the events leading up to the dismissal in March 2017, and competing contentions about the consequences of those events in terms of the appropriateness of continuing with Mr Williamson’s employment and the fairness of the process leading to the dismissal.
[11] Both parties represented themselves in this matter. The application was subject to a determinative conference following consultation with the parties as contemplated by s.399 of the FW Act. This was conducted in a largely inquisitorial manner and given the absence of external representation for either party, appropriate assistance and latitude was provided to facilitate the presentation of each case. 4
[12] There is no dispute that Mr Williamson was protected from unfair dismissal within the meaning of s.382 of the FW Act and there is a valid application before the Commission.
2. The evidence
[13] Mr Williamson provided a witness statement and gave sworn evidence.
[14] Senior Helpers relied on the witness statements and sworn evidence from the following:
● Ms Linda Sharrock – Director and Co-owner;
● Mr Scott Sharrock – Director and Co-Owner; and
● Ms Anna Perriam – Office employee who was involved in the events taking place in the week commencing 6 March 2017.
[15] Senior Helpers also relied on the written documents and sworn evidence of:
● Mr Peter Wintulich – An employee of Voicetronix Pty Ltd. Mr Wintulich’s office is located directly opposite the Senior Helpers office (in the same building); and
● Ms Michelle Watson – Programme Assistant with Resthaven Incorporated (Resthaven) - a major client of Senior Helpers.
[16] I found that Mr Williamson had a strong tendency to view matters subjectively and this coloured much of his evidence. He also lacked insight into his own behaviour and sought to deny certain conduct whilst simultaneously explaining mitigating factors for such behaviour. This does not necessarily mean that he consciously attempted to mislead the Commission and I allow for the fact that Mr Williamson contends that bullying he was subject to earlier in his life has significantly informed his view about what is appropriate conduct in others. However, for reasons outlined earlier, I have treated his evidence on the disputed events with some caution.
[17] I consider that Ms Sharrock and Mr Sharrock gave their evidence honestly and openly. There was however a tendency to overstate some of the facts about Mr Williamson’s earlier employment but I generally accept their evidence on the major events that they directly observed or participated in.
[18] I found Ms Perriam’s evidence to the frank and honest and I generally accept it where it conflicts with that of Mr Williamson.
[19] Both Mr Wintulich and Ms Watson were impressive witnesses and I accept their evidence.
[20] Given the nature of the determinative conference, I have also had the opportunity to observe the exchanges between Mr Williamson and Ms Perriam. Despite the somewhat controlled nature of that environment, those observations inform my assessment of the likely approach adopted to each other in the workplace, at least to some degree.
3. The factual context based upon the evidence
3.1 The general context in which the employment and dismissal occurred
[21] Before dealing with the key factual disputes associated with the conduct of the two employees and the relevant statutory considerations more generally, it is appropriate to set out the general context in which the relevant events took place.
[22] The respondent is a provider of in-home care for the elderly. The majority of Senior Helpers employees are PCAs that attend at the homes of individual clients to provide care services, often arranged through corporate clients such as aged-care providers and community service organisations. The respondent also maintains a relatively small office premises for conducting the administrative side of the business. This is largely undertaken by Ms and Mr Sharrock with the assistance of some casual staff, predominantly at the time, Mr Williamson and Ms Perriam. Senior Helpers also engages one or more Sales Representatives.
[23] Mr Williamson commenced employment in February 2015 working as a PCA. In August 2016, he began working in the office one or two days a week as a Scheduler and other than the occasional shift, 5 no longer worked as a PCA. Mr Williamson’s hours as a Scheduler averaged about 15 hours per week spread over the two days.
[24] There is some tension between the parties as to the circumstances whereby Mr Williamson ceased substantially being a PCA. There is some evidence before the Commission about various requests that Mr Williamson not be provided to clients as a PCA, however as Mr Williamson has also indicated in his evidence, there may be many reasons that a client could request a particular PCA or not, given the very personal nature of those services. It is not necessary for me to draw any conclusions about these matters other than to find that there is no evident pattern of issues from that period which would inform the current disputed facts. They were not relied upon by Senior Helpers in relation to the dismissal itself. 6
[25] Senior Helpers considered that Mr Williamson’s work as a Scheduler was good and that he had a “great phone mannerism”. 7 However, in early February 2017 Mr Williamson was given an informal verbal warning by Mr Sharrock in relation to some of his interactions with PCAs and other staff members. He was reminded that it was part of his job to work with other staff in the office and that his job depended on it.8
[26] Ms Perriam also worked in the office, largely on separate days to Mr Williamson, although they occasionally had worked together.
[27] In the week commencing 6 March 2017, Mr and Ms Sharrock required Ms Perriam and Mr Williamson to work in the office together for a week while they were away. Although they would be accessible by phone, Mr and Ms Sharrock expected Ms Perriam and Mr Williamson to “take care” of the office in their absence. I also find that prior to their departure, Mr Sharrock advised both Ms Perriam and Mr Williamson that Ms Perriam would informally take the reigns and be in charge whilst the Directors were away. The fact that there was no change in roles noted on the roster for that week is not significant given the rather informal nature of that document and the role given to Ms Perriam.
[28] It is common ground that there were some inappropriate exchanges between Mr Williamson and Ms Perriam during the week, and on 9 March 2017 in particular; however, the detail and responsibility for those exchanges is in dispute and I will return to make specific findings about those matters.
[29] On 7 March 2017, Ms Perriam advised Ms Sharrock by telephone that she had received a complaint from Ms Watson at Resthaven, one of the respondent’s largest clients, about the manner in which she had been spoken to by Mr Williamson. Ms Sharrock advised Ms Perriam that Mr Williamson would need to call Ms Watson to apologise. This was done and I will also return to the detail of the conduct and subsequent events shortly.
[30] On 9 March 2017, Mr Williamson contacted Mr Sharrock in a distressed state and complained about the conduct of Ms Perriam. In that telephone call, which lasted for up to two hours, the two discussed many of Mr Williamson’s concerns. In particular, Mr Williamson complained, in effect, that Ms Perriam was behaving badly, was attempting to run him out of the office, that he had had enough and was intending to walk out that day. Mr Sharrock advised, in effect, that if he was not resigning, he would need to return to the office and work together. A conference call with the two employees was conducted by Mr Sharrock later that day. In effect, Mr Sharrock counselled both employees and informed them that they should put aside their differences and work together to get the job done. I would observe that ideally, a more robust response to the joint concerns of the employees and their distress was warranted, even allowing for the fact that the Directors were not in Adelaide at that time.
[31] On 10 March 2017, Ms Sharrock received a telephone call from their Sales Representative to the effect that the office was very tense and that Mr Williamson or Ms Perriam should be sent home. Mr and Ms Sharrock made the decision to send Mr Williamson home (with pay) as he was less experienced in the administrative roles and did not have the skill set to manage the office on his own in peak periods.
[32] On 14 March 2017, Ms Sharrock met separately with both Ms Perriam and Mr Williamson. Prior to that meeting, Ms Sharrock advised the applicant that they would be meeting later in the day and that he should prepare some notes. In the subsequent meeting, Mr Williamson alleged that Ms Perriam had been bullying him including by micro-managing and withholding information from him. At the conclusion of his meeting with Ms Sharrock, the applicant was sent home. In the subsequent meeting, Ms Perriam denied micro-managing and bullying Mr Williamson and alleged that on 9 March 2017 he had intimidated and screamed at her in a threatening manner.
[33] In effect, Ms Sharrock made a “judgment call” regarding the allegations of both Mr Williamson and Ms Perriam and considered that Ms Perriam’s recollection was an accurate account of what occurred. Mr Williamson’s employment was terminated on 15 March 2017 when Ms Sharrock called him to advise that she could no longer offer him any more shifts.
3.2 The conduct of Mr Williamson and Ms Perriam in the week commencing 6 March 2017
[34] I find that Mr Williamson did not want to acknowledge that Ms Perriam had been appointed by the Sharrocks as informally taking charge in the office during their absence. As outlined earlier, I am satisfied that this was, in effect, communicated to both of the employees by the Directors prior to their departure. Further, Mr Williamson, who had longer service with the respondent than Ms Perriam, did not consider that he needed any such oversight in the absence of the Directors. It is also possible that Ms Perriam initially took her informal role very seriously. This all formed some of the important context for what followed.
[35] I further find that the above circumstances meant that when Ms Perriam appropriately took an interest in the work being undertaken by Mr Williamson and made suggestions, this was perceived as being micro-management and interference. Ms Perriam’s role in the events surrounding Ms Watson, to be considered below, also exacerbated the tension that existed in the office.
[36] I have considered the examples given by Mr Williamson about Ms Perriam deliberately withholding information or making comments as part of alleged bullying conduct. Ms Perriam had a reasonable and plausible explanation for those events and Mr Williamson’s view about those matters is an illustration of his very subjective perspective and his keenness to find fault with Ms Perriam. For example, an issue arose from the fact that Mr Williamson had indicated that some petrol money would be provided to a PCA that came into the office. There are apparently sound business reasons for not doing that, but in any event, the indication to Mr Williamson that, in effect, he should not have done that and that he should speak to the Directors was a reasonable position to take. Another example involved a text message that was sent to Mr Williamson after work. Mr Williamson had taken the work computer and mobile telephone with him and Ms Perriam sent a text message in effect requesting that the applicant provide some further details to a PCA. Even if the text message was unclear, which is certainly not evident on its face, there is no objective basis to contend that information was deliberately withheld or that the communication was unreasonable. 9
[37] I do however accept that the office was busy, particularly in the absence of the Directors, and this also made some contribution to the tensions in the office between the two employees.
[38] By 9 March 2017, there was considerable tension in the office. Ms Perriam had opted to sit in the front office so that she and Mr Williamson could each have space. At some stage during the course of 9 March 2017 these tensions extended to a dispute about the airconditioner and whether it should be turned off or on. Ms Perriam could hear Mr Williamson swearing and becoming agitated and understood that this was because he could not get in contact with an employee. Ms Perriam went into his office and suggested the names of workers he may be able to call to fill the service request.
[39] There was initially some back and forth about what workers had, or should be, called for various jobs. Mr Williamson began to get further agitated and raise his voice. Ms Perriam said to Mr Williamson that he needed to “cut the attitude” as it “was starting to put me in a bad mood” and she needed him “to calm down”. During this time Mr Williamson became more aggressive, including by slamming pens on the table.
[40] Ms Perriam removed herself to the front office and Mr Williamson followed, standing over her (as she was seated) yelling and gesturing with his hands, saying things including “I’m not a child, I don’t like being treated like a child”, “I get respect from Scott and Linda and that’s all I will accept”, and calling her a “condescending bitch”. Ms Perriam asked Mr Williamson to leave on a number of occasions, which he eventually did before returning a number of times, slamming the door and continuing to yell. He stood over Ms Perriam and snatched the work mobile phone from her hands.
[41] The exchange took place over a period of up to five minutes.
[42] Mr Williamson then rang Mr Sharrock using the work mobile phone from the car park.
[43] There is no doubt that Mr Williamson was genuinely upset at what he considered to be the inappropriate conduct of Ms Perriam. There is also no doubt that Mr Williamson’s response was loud and threatening and caused considerable distress to Ms Perriam. It was not a measured response or joint argument as claimed by Mr Williamson.
[44] The fact that it was Mr Williamson who was largely the (verbal) aggressor in this exchange, is consistent with the evidence of Mr Wintulich who testified about what he heard on 9 March 2017. His office is located directly opposite the Senior Helpers’ office and he confirmed that:
● He heard an argument coming from the Senior Helpers’ office – a male voice was shouting and being verbally abusive. He heard a female voice ask the man to leave and the door slamming more than once;
● The male voice was loud and condescending and the female voice sounded as if she was attempting to diffuse the situation; and
● He felt ill and thought about calling the police but did not do so as the exchange had finished and he thought that the person involved may have left before the police arrived.
[45] Mr Wintulich confirmed that he did not hear all of the detail of what was said; however, his evidence about the tone of the discussion, the contribution that each of the employees were making, and the slamming of the doors was convincing.
[46] Despite Mr Williamson’s denials and attempts to downplay the evidence of Mr Wintulich, I accept that the doors in the office, although having gas strut closers, are able to be closed with some force. In addition, there is no credible basis to suggest that what Mr Wintulich heard was not at least a substantial part of the exchanges that occurred between Mr Williamson and Ms Perriam on 9 March 2017.
[47] I note that Mr Wintulich was not spoken to by Senior Helpers about what he heard until sometime well after the dismissal.
[48] There were further tensions between Mr Williamson and Ms Perriam on Friday 10 March 2017 and this involved some differences of view about the allocation of workers and who was responsible for missing a job and allegations by Mr Williamson that Ms Perriam was not pulling her weight. These tensions were observed by the Sales Representative and this ultimately led to Mr Williamson being sent home.
3.3 The conduct of Mr Williamson in relation to Ms Watson
[49] Ms Watson is an employee of Resthaven, which provides Senior Helpers with a large portion of their work. Ms Watson gave evidence about a telephone conversation with Mr Williamson on 7 March 2017 and the potential consequences of that for Senior Helpers. Her evidence, which I accept, was that:
● She understood at the time that Mr Williamson was expecting her to call him to advise whether a particular service was to go ahead or not.
● When she called Mr Williamson, he raised his voice and angrily said words including to the effect of “don’t you know what you’re doing”.
● She was taken aback, felt intimidated and found Mr Williamson’s tone to be very unprofessional.
● The interaction had the potential to put Senior Helpers’ contract with Resthaven at risk as they have other care providers that they can use.
● As a result of the conversation with Mr Williamson, she did not provide further shifts to Senior Helpers for the rest of the day, and therefore Senior Helpers lost work.
● Mr Williamson did call, and after she avoided taking his call for a period, they later spoke and Mr Williamson apologised.
[50] Mr Williamson contends that Ms Perriam was dealing with the matter and when he took over the service request, she did not pass on some relevant information. He understood that the service request had been cancelled and was later informed that it was still required.
[51] Without reciting all of the detail of these events, I find that there was some uncertainty about the home address provided to the worker assigned to that particular Resthaven job and that a further complication arose because an agency worker had been assigned rather than a direct employee as preferred by the client. Ms Perriam, who had been dealing with the matter, left the office in the period when Resthaven would be confirming whether the service should continue. Mr Williamson understood, incorrectly but not completely without some basis, that he was to cancel the worker and when Ms Watson called to confirm that the client had decided to keep the appointment, the exchange then occurred.
[52] I do not consider that Ms Perriam set up Mr Williamson or intentionally did not disclose information. The misunderstanding that took place can readily happen given the dynamic nature of what was happening and this did lead to some frustration on Mr Williamson’s behalf. However, his angry response to Ms Watson, particularly as the representative of the major client, was not appropriate. His apology was given, on instruction, but was apparently genuine and in evidence, Mr Williamson willingly accepted that it was not proper or reasonable to “arc up” at a client. 10
3.4 The dismissal and the immediate consequences
[53] I have set out the general sequence of events leading to the dismissal above. During the course of the meeting between Ms Sharrock and Mr Williamson on Tuesday 14 March 2017, the applicant was requested to explain the behaviour and issues arising while the Directors were away in Perth. Amongst other matters, Mr Williamson indicated that he felt that Ms Perriam micro-managed and reprimanded him, made him feel like she was looking over his shoulder, did not speak respectfully to him, but rather criticised him, made him feel like a child, withheld information and treated him like he did not know his job.
[54] During that meeting, which went for almost an hour, Ms Sharrock also raised Mr Williamson’s alleged behaviour including the interactions with Ms Perriam and Ms Watson. Ms Sharrock explained that that conduct was not what was expected of an employee whilst Mr Williamson stated that he had been bullied by Ms Perrriam and spoke at length about his treatment by her and that he felt stressed and upset. Ms Sharrock formed the view that Mr Williamson was not disputing the alleged conduct, but rather, justifying it based upon the behaviour of Ms Perriam. Ms Sharrock indicated that Ms Perriam’s behaviour may have been inappropriate and that she would be speaking to her about his complaint later in the day. Mr Williamson indicated that he wanted to meet with Ms Perriam to “square things away” and that he would not confront Ms Perriam in the future. Ms Sharrock replied that she wanted to speak to Ms Perriam alone and expressed concerned as to whether the two employees could work together in the office.
[55] Later that day, Ms Sharrock met with Ms Perriam to discuss the events of the previous week and Mr Williamson’s allegations against her. Mr Perriam indicated that she was trying to assist Mr Williamson with the names of workers for shifts, vehemently denied removing shift information from his desk, and whilst she agreed that she tried to give suggestions, she was not trying to micro-manage or bully Mr Williamson. Ms Sharrock warned Ms Perriam that she needed to be supportive of her co-workers and that a cohesive and cooperative atmosphere was important. Ms Perriam was not however given a formal disciplinary warning.
[56] As outlined earlier, Ms Sharrock took the decision to dismiss Mr Williamson following those discussions. On 15 March 2017, Ms Sharrock advised Mr Williamson by telephone that she had considered the information available and had made a decision that she could no longer offer him work in the office. Further, she indicated that the decision was based on his behaviour in the office while the Directors were away, which she considered to be serious misconduct as the behaviour was threatening towards another worker, and in addition, the incident with Resthaven was unacceptable.
[57] During the dismissal discussion, Mr Williamson indicated that this was not fair, that he was a victim of bullying and that Ms Perriam would do this to other employees. Ms Sharrock indicated that she had spoken to Ms Perriam about those issues and Mr Williamson further raised his voice and indicated, in effect, that he would be disputing the matter and then hung up the phone.
[58] Mr Williamson’s dismissal took effect immediately.
[59] Following the dismissal, Mr Williamson sent the following Facebook message to Ms Perriam:
“you are a foul tempered, NASTY BULLY!!! I had to put up with YEARS of bullying from idiots like you all thru school!!! Now in the workplace you bring it all up again and you bully me micro manage me and treat me like dirt!!! You sole aim since the day i started in admin was to drive me out…... success. you are a pathetic irrational nasty BULLY go jump now i feel lousy like crap and devastated!!! YOUR FAULT !!!!! you are truly a lousy evil person!!!” 11
[60] Mr Williamson accepted that he sent this Facebook message with reference to Ms Perriam and that “in my mind it’s nothing but the truth”. 12
4. Was Mr Williamson’s dismissal unfair within the meaning of the Act?
[61] Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[62] Mr Williamson was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.
[63] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.
[64] The FW Act relevantly provides 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 is 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.”
[65] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.
[66] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to Mr Williamson’s capacity or conduct (including its effect on the safety and welfare of other employees)
[67] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.13
[68] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.14 Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.15 In this case, this includes the evidence of Mr Wintulich.
[69] I have considered the elements of conduct relied upon by Senior Helpers. That is, the conduct in relation to Ms Perriam, particularly that on 9 March 2017, and the earlier exchange between Mr Williamson and Ms Watson on 7 March 2017. My findings on those events are consistent with the view that elements of misconduct are present in both cases. In the case of the conduct towards Ms Perriam, this was serious misconduct.
[70] I allow for the fact that there may have been some overly keen “supervision” of Mr Williamson during the week in question and that this led to frustration by the applicant given his attitude to her role. However, the response was disproportionate and involved conduct that was itself much more unreasonable and was in fact threatening behaviour. It was also abusive and not consistent with the reasonable expectations of an employee in these circumstances. Although Mr Williamson and Ms Perriam did not need to regularly work together, that had occurred in the past and was likely into the future given the small operation involved. Importantly, the absence of any genuine recognition that his conduct was not appropriate is also a significant factor adding to the justified reasons for the dismissal.
[71] In terms of Mr Williamson’s conduct with Ms Watson, such was also unreasonable; albeit, to a lesser degree. There were also some mitigating circumstances that I have taken into account which do not excuse that conduct but put it into some context. However, in terms of consequences, that conduct did lead to the loss of some business and it also had the potential to put some ongoing risk into the relationship with the respondent’s major client.
[72] I am satisfied that the making of the bullying complaint against Ms Perriam was not the reason, or part of the reasons, for the dismissal. The making of the complaint led to the investigation of the circumstances and it is the view taken by Senior Helpers that Mr Williamson’s behaviour was serious misconduct that led to the dismissal. There is also no suggestion that Senior Helpers was aware of any intention, or held concerns about, the potential for an anti-bullying application to be lodged by Mr Williamson and accordingly this played no part in the decision.
[73] There are some mitigating circumstances and I will return to these in due course.
[74] Having regard to all of the circumstances, I am satisfied that there was a valid reason for dismissal, including its effect on the safety and welfare of other employees, arising from Mr Williamson’s conduct.
Section 387(b) – whether Mr Williamson was notified of the reasons for dismissal
[75] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.16
[76] Ms Sharrock discussed her concerns about Mr Williamson’s alleged conduct with him on the day before the dismissal. At that point, she had not spoken to Ms Perriam and had not determined what ultimate view would be taken about the conduct and Mr Williamson’s employment.
Section 387(c) – whether Mr Williamson was given an opportunity to respond to any reason related to her capacity or conduct
[77] The process contemplated by the FW Act does not require any particular formality and is to be applied in a common sense way to ensure the employee has been treated fairly. This question becomes whether Mr Williamson was aware of the precise nature of the employer’s concerns about his conduct and had a reasonable opportunity to respond to these concerns.17
[78] This is related to the consideration established by s.789(b) above. I am not without reservations as to whether the process adopted by Senior Helpers gave Mr Williamson an opportunity to deal with the reasons. That is, the two broad allegations were discussed. However, at that point, the respondent had not spoken at all to Ms Perriam and was not in a position to determine the extent of the misconduct or any final views about its seriousness.
Section 387(d) – any unreasonable refusal by the respondent to allow Mr Williamson a support person
[79] There is no indication that Mr Williamson requested a support person in any discussions and accordingly, this consideration does not arise; that is, there was no refusal of any request.
Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Williamson – whether he has been warned about that unsatisfactory performance before the dismissal.
[80] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.18
[81] The substantive reasons for dismissal relied upon relate to Mr Williamson’s conduct, rather than the performance of his work.
[82] I do accept that there was an informal warning about his conduct and approach to other staff and clients given in February 2017; however, that is a matter to be considered more generally. There was also a reminder of the need for proper conduct, as a result of the discussion that took place leading to the need to provide an apology to Ms Watson.
Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Section 387(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.
[83] I have proceeded on the basis that Senior Helpers is not a small business within the meaning of the FW Act and it does have somewhat limited administrative resources. The decision makers did not have access to dedicated human resource management specialists or expertise in the enterprise. I accept that was likely to have impacted upon the procedures adopted in effecting the dismissal.
[84] As a result, the consideration of the deficiencies in those procedures must also take this aspect into account.
Section 387(h) - other matters considered to be relevant
[85] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,19 the Full Bench observed:
“[24] ... ... The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[86] In this case I have found that serious misconduct occurred and that a valid reason for dismissal has been demonstrated by Senior Helpers.
[87] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to any actual conduct found by the Commission20 and I have assessed this in reaching my final conclusions.
[88] Although not initially contended by Mr Williamson, during the course of the determinative conference he did raise what amounts to a submission that he was unfairly subject to differential treatment. This involved two aspects; being firstly, that Ms Perriam was treated differently despite her conduct and the stated recognition that she had an anger management problem. Secondly, that Mr Sharrock had during a Christmas party had a loud verbal altercation with an employee.
[89] In Sexton, John v Pacific National (ACT) Pty Ltd,21 (Sexton) Lawler VP dealt with the issue of differential disciplinary outcomes in the following manner:
“[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a “fair go all round” within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing “apples with apples”. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. Obviously, where, as in National Jet Systems, there is differential treatment between persons involved in the same incident the Commission can more readily conclude that the cases are properly comparable. However, even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case. For example, a worker guilty of particular misconduct justifying termination might be shown leniency because of extreme need or stress arising from the serious illness of a close dependent. Another worker guilty of the same misconduct could not necessarily rely upon the leniency shown to the first worker as a basis for demonstrating that his or her termination was harsh, unjust or unreasonable. Many other examples could be constructed.”
[90] Although applying an earlier statutory regime,22 this approach remains apposite as part of the Commission’s overall assessment of whether a dismissal is unfair within the meaning of the FW Act.
[91] Without repeating all of the details, I do not consider that Ms Perriam’s conduct was comparable to that of Mr Williamson. What Mr Williamson saw as provocation and his sense that he was being bullied is not objectively supported by the evidence. 23 Further, the response was completely disproportionate and of a different character to the actions of Ms Perriam. In relation to issues raised about Mr Sharrock, based upon the evidence before the Commission there was a short heated exchange involving Mr Sharrock at a function, however, this falls well short of the kind of conduct that took place on 9 March 2017. I also do not consider that this exchange represented any form of condonation of that kind of conduct.
Conclusion on nature of dismissal
[92] In determining matters in this jurisdiction, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in that position.24
[93] Further, as outlined earlier, the FW Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the FW Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in s.381 which relevantly provides as follows:
“381 Object of the Part
… …
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”
[94] As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether the procedural deficiencies made any difference to the outcome.25
[95] I have earlier outlined certain reservations about the procedure adopted by the respondent in this matter. Ideally, Senior Helpers would have formed its views about the conduct having spoken to Mr Williamson, Ms Perriam and Ms Watson and then advised Mr Williamson in person about those findings and provided an opportunity for him to respond prior to making any final decision on his employment.
[96] Senior Helpers did speak to both of its employees about the alleged conduct before making its decision. Importantly, Ms Sharrock specifically raised the alleged misconduct with Mr Williamson and he had had an opportunity to explain what amounts to the mitigating circumstances. There was also no significant dispute about the conduct towards Ms Watson, other than the precise basis for Mr Williamson’s apparent frustration. Mr Williamson had already been sent home at that point and it would have been clear that his future employment was in jeopardy. I have considered the impact of not providing Mr Williamson with the opportunity to respond to the final conclusions about the conduct in light of my findings about that conduct and his response in these proceedings.
[97] Mr Williamson continues to deny most of the more significant elements, and the seriousness, of his conduct in connection with Ms Perriam. Given that position and the consequences for the business and the need for a safe working environment for all of its employees, I do not consider that the process had led to significant unfairness to Mr Williamson. I am also required to take the expertise of the business, or more particularly, the lack of human resources expertise, into account under s.387(g) of the FW Act.
[98] Mr Williamson had worked for Senior Helpers in the various capacities since 2015 and whilst this is not a long period, the dismissal has had negative consequences for him, both financially and more generally. Despite that impact and the presence of some mitigating circumstances that I have outlined earlier, the denial of the most serious conduct and the absence of any sense of contrition or a genuine willingness to change his behaviour, means that Mr Williamson is largely responsible for that outcome. I would observe that in other circumstances, those mitigating factors, including the distress and life experiences apparently experienced by Mr Williamson that may have contributed to the events of 9 March 2017, and potentially the less than ideal immediate response of Senior Helpers to the concerns of both employees on that day, would have been more significant in the end result.
[99] Having regard to my findings of fact based upon the credibility of the evidence, and having considered each of the matters established by s.387 of the FW Act, in all of the circumstances evident in this case, I am on balance not satisfied that the dismissal of Mr Williamson was harsh, unjust or unreasonable.
5. Conclusions and orders
[100] As a result, the dismissal was not unfair within the meaning of the FW Act. This application must therefore be dismissed and an order26 to that end is being issued with this decision.
COMMISSIONER
Appearances:
Mr E Williamson, on his own behalf.
Ms L Sharrock and Mr S Sharrock for Semsley Pty Ltd T/A Senior Helpers Adelaide Northern Suburbs.
Hearing details:
Determinative Conference
2017
Adelaide
15 June.
1 I have used the discretion available in s.586 of the FW Act to correct the employer name identified in the application
2 Including at transcript PN674.
3 Transcript PN163.
4 This was done in a manner consistent with the statutory charter of the Fair Work Commission. See the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.
5 Estimated to be two hours of PCW work in the month leading up to the dismissal – as an example.
6 Transcript PN384.
7 Exhibit R4.
8 Ibid.
9 Transcript PN1056 to PN 1060.
10 Transcript PN1162 and PN1163.
11 Exhibit R3.
12 PN344.
13 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].
14 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.
15 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.
16 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
17 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].
18 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
19 [2011] FWAFB 1166.
20 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
21 PR931440 (14 May 2003).
22 s.170CE of the Workplace Relations Act 1996 (Cth).
23 See the approach to the definition of bullying conduct, including the concept of reasonable management action, in Amie Mac v Bank of Queensland Limited and others [2015] FWC 744 and GC [2015] FWC 6988.
24 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685; Miller v University of New South Wales (2003) 132 FCR 147 and [13].
25 See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.
26 PR594610.
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