Evan Dickinson v Calstores P/L

[2011] FWA 6858

Note: An appeal pursuant to s.604 (C2011/6569) was lodged against this decision - refer to Full Bench decision dated 20 January 2012 [[2012] FWAFB 692] for result of appeal.

[2011] FWA 6858

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 394 - Unfair dismissal

Evan Dickinson
v
Calstores P/L
(U2010/14038)

DEPUTY PRESIDENT SAMS SYDNEY, 31 OCTOBER 2011

Termination of employment - whether dismissal of employee ‘harsh, unreasonable or unjust’ - numerous breaches of Company policies - admissions of employee, but claims that policy breaches did not justify dismissal - verbal and written warnings - behaviour during counselling sessions - contempt for managers - valid reason for dismissal - procedural faults do not outweigh seriousness of behaviour and attitude - dismissal not unfair - application for an unfair dismissal remedy dismissed.

[1] Mr Evan Dickinson (‘the applicant’) was employed by Calstores Pty Ltd (a subsidiary of Caltex) (‘the respondent’) as a permanent part time service attendant (‘CSA’) at its F3 Southbound service station site at Wyong in New South Wales. The applicant had been employed by the respondent for around five years prior to his dismissal on 29 October, 2010. His letter of dismissal, dated 9 November 2010, was expressed as follows:

I refer to our recent, formal discussion with you regarding your behaviour as a Customer Service Attendant.

During our meeting held on Friday 29 October 2010 we asked you to respond to allegations that you processed your own transaction on 15 October 2010 whilst another CSA was on duty, despite having being [sic] given prior warnings that this was against Calstores policy.

During this meeting you confirmed that you had processed the transaction yourself, whilst the other CSA supervised, in order to minimise disruption to the business.

We considered the information available to us and the circumstances of the matter, including your two prior written warnings. After careful consideration and as advised to you verbally on 29 October 2010, the Company terminated your employment 29 October 2010, with 3 week’s [sic] in lieu of notice, as per the terms of the Calstores 2010 Enterprise Agreement.

Your final pay including 3 weeks in lieu of notice has been electronically transferred into your nominated bank account.

The superannuation fund administrators will be advised of your separation and they will contact you separately regarding the balance of your account with them.

Kindly note that you are required to return all property belonging to the Company, including store keys, uniforms and name badges.

As will become evident during the consideration of this matter, the applicant’s dismissal and the circumstances leading up to it, are not quite as straight forward as the above letter would seem to suggest. I shall return to these matters shortly.

[2] On 11 November 2010, the applicant filed an application pursuant to s 394 of the Fair Work Act 2009 (‘the Act’), seeking to have Fair Work Australia (‘FWA’) make a finding that his dismissal was ‘harsh, unreasonable and unjust’ and to make orders for compensation for his alleged unfair dismissal.

[3] A number of attempts at convening conciliation conferences were made, but it was not until 22 December 2010, that a conciliation conference was conducted. However, it proved unsuccessful and the matter was referred to me for arbitration in the April arbitration roster. The matter did not conclude in the allocated time and a further day of hearing was required and the parties filed final written submissions in June, 2011.

[4] The applicant initially sought orders for maximum compensation of 26 weeks’ pay, but after the conclusion of the substantive proceedings, the applicant contacted my Chambers to change the remedy he sought to reinstatement to his former position. As a result of this request, the matter was relisted for further directions on 12 September 2011. However, at that time both parties indicated they would be content to await the outcome of the substantive proceedings, before considering whether to put any further submissions on remedy (assuming, of course, the applicant was successful as to a finding of unfair dismissal).

THE EVIDENCE

[5] The following is a list of witnesses who gave oral and/or written evidence in the proceedings:

Mr Evan Dickinson - Applicant

Ms Alison Hahn - National Human Resources Manager

Ms Nicholas Giokaris - National Human Resources Manager, Retail.

Ms Gillian Murphy - Business Manager

Ms Tegan Morton - Store Manager

Mr George Nassis - Former employee

[6] It is apparent that the applicant’s dismissal was for his continued alleged breaches of the respondent’s policies. It was claimed that the applicant had received various verbal and written warnings for breaches of the respondent’s policies, including not attending work when rostered, unauthorised staff purchases and prohibited use of his mobile phone at work.

[7] Specifically, the respondent said that on 30 June 2010, the applicant received a verbal warning for a breach of the respondent’s sick leave policy and his failure to attend his shifts on time. On 27 July, 2010, he received another verbal warning for a failure to attend his shift on time and non completion of his duties. On 9 August, 2010 the applicant received the following written warning concerning:

● Persistent failure to attend the workplace without permission, including absenteeism and lateness.
● Refer to previous verbal warning on the 21/07/2010.
● Refer to previous verbal warning on the 27/06/2010.
● Failed to attend rostered shift on 7/8/2010 from 08:00am until 04:15pm.

[8] On 7 September 2010, the applicant attended a formal counselling session concerning further breaches of the respondent’s policies, which were described as follows:

1. Your recent punctuality and attendance record on the following occasions:

● ‘On 26/6/10 you were due to start work at 8:30pm, however you phoned the site at 5:30pm and stated you were ill and could not attend. You did not follow the correct procedure of contacting the manager if you cannot attend for work. We have also requested you provide a medical certificate for this absence and to date this has not been received.
● On three occasions being 27/6/10, 19/7/10 and 20/7/10, you were at least 30 minutes late for work. We also note that initially you put the wrong time on your timesheet until your lateness was noted by your manager.
● On 7/8/10 you did not attend for work, despite being advised by your manager that your request to be absent from shift was not approved. You were previously advised to submit a formal leave request for consideration, however you did not submit this request.

2. We have evidence that you have not complied with the Company’s policy relating to personal purchases on two following occasions:

● On 3/8/10 you consumed a muesli bar from the store and did not immediately pay for it.
● On 16/8/10 you processed your own transaction despite another CSA being on shift with you. This transaction also included a cash payout of $60, which exceeds the maximum cash payout allowed under Company policy.

3. On 19/8/10 at 9:10pm you can be seen on the store surveillance footage behind the console on your mobile phone, which is against Company policy.

This counselling resulted in a first written warning.

[9] On 20 September 2010, the applicant received a final written warning for the following breaches of policy:

1. Your recent attendance record on the following occasion:

On the 11th September you were rostered on to work from 8:30pm - 4:30am. You have been viewed on CCTV footage leaving your shift at 4:14am without authorisation from management.

2. Incorrectly completing shift sheets:

On the 11th September you were rostered on to work from 8:30pm - 4:30am. You have been viewed on CCTV footage leaving the site at 4:14am, however your time sheet has been submitted with a completion time of 4:30am.

[10] On 7 October 2010, the applicant received another final written warning for the following breaches of policy:

● Failure to complete action plan from formal counselling on the 7th September.
● Your action plan required you to review and sign all policies in the new CSA Handbook by the 14/09/10. To date this has not been received.
● We have evidence that you have not complied with the company’s policy relating to personal purchases.
● On the 21/09/10 at 9:45pm you purchased 2 x 600ml Cokes, 2pkts of Allen’s lollies & 2pkts of Red Rock chips and processed your own transaction, using a credit card.
● We also need to address the failure to provide adequate notice when you called in sick on the 30th September.

[11] On 27 October 2010, the respondent directed the applicant to attend a meeting on 29 October 2010 to discuss his various breaches of policy. His employment was terminated that day.

[12] Unsurprisingly, the applicant disputed all the warnings he received and raised various defences, including the following:

● contradictory policies;
● inconsistent application of the policies;
● his misunderstanding of the policies;
● false and unsubstantiated allegations by management;
● prejudicial treatment by a manager due to her failed relationship with his brother;
● management’s own breaches of policies;
● excessive and unfair scrutiny of him;
● predetermination of counselling process which was just ‘a neat facade’;
● lack of professionalism of human resource specialists;
● not being provided with written warnings;
● a failure to provide him with evidence of his misconduct;
● the respondent’s fabrication of evidence.

[13] On the other hand, the applicant claimed that he was a very productive employee. He had made a genuine and complete effort to adjust to the new ‘strict policy mandated workplace’ and he had complied with every policy, on every occasion, except where a conflict existed. He said he had attempted to maximise his adherence to policies, but minimise interruption of other employees and eliminate workplace conflict.

Relevant respondent policies

[14] To set the framework of the evidence in this matter, it is necessary to identify the various policies the applicant was alleged to have breached. The respondent’s policies are contained in the Calstores Pty Ltd Customer Service Attendant Handbook. There is no dispute that on 1 March 2006, the applicant signed an acknowledgement that he had read and understood the contents of the Handbook and that any failure to abide by the guide may result in disciplinary action, up to and including, termination of employment.

[15] The various policies referred to during this case include the following:

Absences

If you are going to be absent from a rostered shift or training you must notify your Store Manager and advise he or she of your reason and expected duration of absence at least four hours before the commencement of your shift. This is to determine the nature and possible duration of the illness and the effect on other shifts.

It is unacceptable for family or friends to call on your behalf unless circumstances permit otherwise.

Unsatisfactory attendance or unexcused absences (including commencing a shift late or leaving early) are considered cause for disciplinary action up to and including dismissal. An unreported absence for 3 consecutive days may be considered an abandonment of your employment.

Cash handling

Console Security requires all employees to enter a Password when logging onto a shift and that employees must log off their console when absent from the console for any extended period whilst performing other shift duties and when out of sight of the console.

Passwords are to be kept strictly confidential and must not be revealed to any other employees.

Breaches resulting in disciplinary procedures

Processing of own purchases by employee (except in circumstances where there is only one employee rostered. In this situation the employee must print two receipts, attach one to product to be consumed and place the other in the day file).

Console responsibilities

You are required to display a high degree of responsibility when handling both stock and money. Do not put yourself in a position where your honesty or integrity is questioned.

You will not eat or drink except in the approved area at the approved times.

You will not watch television or read magazines whilst on duty.

You must complete all designated shift duties. If shift duties are not completed, a note must be written in the store communications book detailing the outstanding tasks.

You must adhere to the Cash Handling Policy and all other console related procedures. Your Store Manager will make you aware of this policy and associated procedures.

Personal Purchases

Should you purchase goods for your own use during your shift you must adhere to the following process:

● Declare any products brought to work that are sold at Calstores (eg cigarettes, cold drinks, and confectionary).
● Have another employee process the transaction
● Pay for and print a receipt immediately upon purchasing products from your site
● Have another Calstores employee initial your receipt
● Place the receipt for the goods purchased in the daily folder

In circumstances where there is a sole operator in charge, the following process must apply.

● The employee must print two receipts, attach one to product to be consumed and place the other in the day file. The Store Manager must check the receipts daily.

All visiting Caltex employees should ensure they attach a receipt to a purchased product if it is to be consumed on site.

You may be asked at any time to show proof of purchases. Consumption of stock without payment may result in termination of your employment.

Punctuality

Punctuality is essential. You must turn up to your rostered shift in sufficient time to change over at the allotted time.

Mobile Phones

Personal mobile phones are not to be used while on duty. They should be switched off to avoid interruptions, kept in a secure location away from the console with personal belongings and are not to be kept on you during your shift.

Time Sheets

All employees must complete an Employee Time Sheet each day stating their ‘time in’ (start) and ‘time out’ (finish) and Total Hours Worked. It is each person’s duty to fill out the start and finish times as they occur and not in advance. If Time Sheets are incomplete for any day, wages may not be paid for that day.

Applicant’s Evidence

[16] The applicant said that in mid 2010, after Ms Tegan Morton was appointed store manager an ‘uncomfortable tension spilled over into the workplace’ as a result of a recent breakdown of her personal relationship with his brother. However, he said he was determined to overcome this difficulty. About the same time, the applicant’s shifts were changed from day work to night shifts during a ‘Knock-Down Rebuild (KDR)’ of the site. He believed he was entitled to more respect in regard to rostering. Given his five years of loyal service, he had wanted a more stable, ongoing roster.

[17] On 26 June 2010, the applicant was unable to attend for work at short notice and phoned the site to inform the person on duty. He said that this was customary practice and his understanding of the relevant policy was that it was unnecessary to inform management of sick leave absences. When Ms Morton gave him a verbal warning the next day, he expressed his frustration with the rostering arrangements due to his inability to adjust to night shifts and the contradictory policy framework regarding unpaid breaks. Ms Morton informed him that the roster change was due to certain medical issues of other employees and if he did not like it, he should request a transfer. The applicant said his roster was immediately cut from 4 to 3 shifts per week and Ms Morton justified this by a ‘snide’ remark: ‘you don’t turn up for weekend shifts’. The applicant said he was disgusted by her derogatory remark and her ‘malicious’ slashing of his roster.

[18] Around this time, the applicant informed Ms Morton he would be unable to work on Saturday, 14 August 2010. It was his understanding that two weeks’ notice was sufficient to inform management of his unavailability for a shift. He claimed Ms Morton had said the roster was already drawn up and she was not changing it. He believed she was deliberately confrontational and ignoring his rights. He decided to ‘remain indignant’ and not work on that day as Ms Morton’s ‘bullying tactics needed to be addressed’. Also around this time, medical release forms began to appear in the site diary. The applicant said that the staff were very offended and believed that he had been the instigator of the process. He denied this and believed that Ms Morton had lied to him about the rostering requirements. He said her unprofessionalism alienated him from his colleagues.

[19] The applicant then decided to seek advice and air his grievances with Head Office’s Human Resources Department. On 19 August 2010, he said he received a conciliatory phone call from Ms Gillian Murphy (Ms Morton’s supervisor). His fourth shift was reinstated, but when he said he wanted to raise other issues, Ms Murphy’s tone changed and she had tried to ‘catch him out’ in breach of the respondent’s mobile phone policy for answering calls at work.

[20] The applicant engaged in further liaison with Human Resources and Ms Alison Hahn organised a meeting which he believed was to discuss his grievances. However, he was dismayed to receive a letter from Ms Morton directing him to a counselling session. He believed his grievance meeting had been ‘hijacked as a desperate counter offensive’ by Ms Morton for the grievances he had lodged against her. The applicant was also annoyed that Ms Morton had attended the meeting. He said that his grievances were eventually discussed, but every response from Ms Morton or Ms Murphy, proved to ‘be a mixture of stonewalling, outright lies or a coached response’. He found the meeting (for which he was not paid) extremely frustrating and unproductive. He believed the policy guidelines for management consisted of the ‘vagaries of whims, favouritism and ridiculously broad caveats’. After this meeting, his performance was under increasing scrutiny.

[21] The applicant described the change of meal break policy which required employees to take a 30 minute unpaid meal break. However, he said that no resources were allocated to provide a break room and employees were not allowed to leave the store during their shift. As a result, he had worked through his break, without being paid. The applicant believed the policy contradicted the respondent’s security policy and endangered the safety of staff. It also contradicted the cash handling policy because the two staff on night shift were required to cover each other’s break and utilise the same console and cash float. He believed a situation could arise where employees could be wrongly accused of theft or blamed for another employee’s mistakes. He had disagreed with the ‘new management mentality as it would hinder initiative and decrease morale’, but he claimed he was willing to abide by any new policy directives.

[22] The applicant attended a second unpaid counselling session where he informed Ms Morton and Ms Murphy that before he left his shift he would use the McDonald’s toilets as they were more hygienic, well lit and offered more privacy as compared to the port-a-loos provided for employees’ use during the KDR. He said Ms Murphy told him he was lying which he found to be quite offensive. He claimed he became stressed from the constant bullying and harassment. He said he adjusted his routine to ensure that CCTV footage would show him leaving his shift no earlier than 4:30am.

[23] The applicant now believed his employment was under significant threat due to ‘a vigilant and shameless campaign orchestrated’ by Ms Morton and Ms Murphy. He decided to look for other work and make an extra effort to conduct himself as an exemplary employee. He said he had failed on both counts.

[24] The applicant was scheduled for a third counselling session on 7 October 2010, concerning his failure to sign off on a new policy booklet; a requirement arising from the previous counselling meeting. However, he said he was never instructed to sign off on the booklet at the previous meeting. Nevertheless, he told Ms Murphy that he would not sign off on a booklet which he believed contained important inconsistencies and which he did not understand. The applicant expressed concerns with what he described as the extremely invasive and cynical application of CCTV footage and audio recordings, which were an invasion of his personal privacy. Ms Murphy had told him he had no right to know what protections existed to safeguard his privacy and that he should sign off on the policies or face termination. He said he was stunned by such a ‘dismissive and draconian attitude’.

[25] As to the issue regarding the personal purchasespolicy, the applicant said it had been a simple miscommunication. He believed the thrust of the policy was directed to keeping receipts and attaching ‘staff purchase’ tickets to the items. He now understood the policy relates to the processing of transactions when another staff member is not available. The applicant said the third issue - failing to provide adequate notice when calling in sick on 30 September 2010 - was a product of his determination to attend work, despite being sick. However, at 6:30pm on that day, he was vomiting and had to call in sick.

[26] During this meeting, the applicant confronted Ms Morton about another denial of his annual leave request for the 16 October - 24 October 2010. He felt angry to have then been rostered on for the 16 October 2010. He asked to view his annual leave request, which was denied, and after a lengthy period of ‘childish stubbornness’ Ms Morton had relented. Ms Morton realised her mistake and he accepted that she had made an honest mistake. The applicant said that Ms Murphy then launched an ‘aggressive interrogation’ of Ms Morton which he believed was unnecessary as it made her stressed and uncomfortable. The applicant said he returned to the live streaming of CCTV footage issues, and asked for a ‘hypothetical justification’. When Ms Murphy said it meant the police could be called quicker in the event of a robbery, the applicant said this directly breached the respondent’s ‘armed hold up’policy. The applicant said he left the meeting in ‘hysterics’ as it was ‘truly comical’ if the issues had not been so serious. He said he ‘wilted to their blackmail and coercion’ and ‘begrudgingly’ signed off on the policy.

[27] The applicant identified further inconsistencies in the respondent’s policies concerning ‘sign in’ codes and the absence of personal lockers. Of particular concern was Ms Morton’s own disregard for the cash handling policy, when covering another employee’s meal break. She would operate the console, without using her own sign in, and utilise the same cash float. He believed this destroyed the integrity of the employee’s control over their own cash float and opened up a ‘Pandora’s box’ to false allegations of theft or carelessness. When he had confronted her and told her he was uncomfortable with her clear breach of policy, she disagreed and became angry. She said she would report him for just being difficult and then she stormed off into the office. He became stressed and concerned as to his employment, for merely upholding the respondent’s policies.

[28] The applicant said that after returning from annual leave he was handed a fourth counselling letter and a direction to attend a meeting on his day off. He told Ms Murphy he would not attend any further meetings scheduled on his days off, as this was a classic case of bullying and harassment. The meeting was rescheduled, although he had told Ms Murphy that the counselling sessions were neither productive nor justified. He felt a sense of injustice and outrage toward Ms Morton’s and Ms Murphy’s campaign against him, despite his attempts to conduct himself in an exemplary manner.

[29] At the next meeting held on 29 October 2010, attended by Ms Murphy and another ‘ring in’ witness, Mr Simon Daniel - Franchise Business Manager, Ms Murphy asked the applicant to explain his staff purchases breach. He said he was unsure about the specifics of the allegation and asked to see the CCTV footage. After investigation, it was established that the footage had been deleted. Despite no evidence, he was still told to explain himself. He believed this represented ‘another stunning lack of professionalism and a clear injustice’. He said that while he could have ‘stonewalled’ and flatly denied the allegations, he claimed he had made every effort to abide by the staff purchase policy. While another employee (Brian) and Ms Morton were present on site at the time he had not wanted Ms Morton to perceive him as disruptive by asking her to process his purchase. He argued that his behaviour ‘was designed to enable the maximum of policy adherence’. After a short adjournment of the meeting, the applicant was dismissed.

[30] The applicant summarised his case as follows:

‘In conclusion, I contend that the entire counselling process served merely as a convenient facade for what was a deliberate and malicious campaign to forcefully remove me from the Calstores organisation. Tegan had been prejudiced against me due to her failed relationship with my brother and in conjunction with Gillian’s seemingly abject disdain for employees and employee rights they quickly went about creating an untenable workplace environment characterised by excessive and unfair scrutiny, haphazard and inconsistent policy frameworks, constant criticism, alienation and sabotage’.

The applicant described the respondent’s reply submission as being a ‘gross and deliberate fabrication of events amounting to falsehoods, insincere statements made with the express intent of assassinating my character and intimidating me’. He believed his employment would have continued for many years had he not been dismissed. He claimed he had been looking for alternative employment, which had proved unsuccessful.

[31] In cross examination the applicant agreed that:

(a) when he signed his letter of offer of employment, he had acknowledged having read, understood and accepted the rules and obligations in the respondent’s Handbook. However, he said that ‘you’ve got to take into account the reality of the workplace’;

(b) he had attended an induction program and various other training sessions;

(c) the Handbook stated that processing one’s own purchases could result in disciplinary action. However, he said he had intended to comply with the policy, but when it was not required he would not comply;

(d) Ms Murphy had made it clear what her expectations were regarding compliance with the Handbook;

(e) he usually read the store diary and would use it to communicate issues to other staff;

(f) he had intended to follow the policies in respect to console responsibilities and punctuality;

(g) the mobile phone policy required that mobile phones were not to be used while on duty and to be switched off. However, while he intended to comply with the policy, the practice was different and he had just followed a culture which management was well aware of.

[32] Further, when asked about the requirement to fill in his time sheets correctly, he said that there had been different approaches to this at different times during his employment. He claimed he had not left work early - it was just a ‘misunderstanding’. He believed that the time he left work was when he left the F3 complex. This included the time he had used the McDonald’s rest room facilities which were located on the complex. He conceded that he had not complained about the state of the port-a-loos, but he insisted the issue was well known and management was aware of the situation.

[33] In respect to the 26 June 2010 absence, the applicant did not accept that he was required to notify Ms Morton of his absence because for four years there had been a different practice. He claimed he was late for work because he would take his meal break before his shift started, so he would not be in conflict with either of the respondent’s locked door policy or meal break policy.He agreed he never told anyone of this arrangement and did not note these changes in the store diary. When asked why he did not consistently turn up a half hour late for every shift, he said he may have just forgot to change the times he had arrived for work.

[34] The applicant claimed that he was exercising a workplace right when he took the 7 August 2010 off without Ms Morton’s approval. He did not think it was necessary to put a leave form in. The applicant could not recall an incident on 3 August 2010 in which a work colleague had complained that he had not purchased a muesli bar in accordance with the staff purchase policy. As to the incident on 16 August, 2010 when he processed his own transaction, despite another CSA being present on shift, he claimed it was the practice that had applied since he had started employment and, in any event, there was never any monitoring of the staff purchase policy.

[35] At the counselling meeting on 7 September 2010, the applicant agreed that when he was told he had to contact Ms Morton if he was sick and bring in a doctor’s certificate, he had replied ‘You’re kidding this is just a joke, I’m not going to the doctor for one day off’. He said he had not sounded rude and abrasive when he had used these words. He also agreed that when Ms Murphy referred to his late starts on 27 June, 19 and 20 July, 2010 and went through the requirements for roster breaks and arrival time, he simply replied ‘yeah, whatever’. He claimed he was still annoyed that his shifts had been reduced. He agreed that he had probably also said ‘There’s no point of these meetings. You don’t make any sense’. He claimed he was by now banging his head up against a wall. He agreed he may have also used words such as ‘being treated like children’ and had said that other CSA’s frequently disregarded policies. However, he would not name them because, he said, he was not a ‘dobber’. The applicant agreed that Ms Murphy had told him that any future breaches of policy could result in disciplinary action and that Ms Murphy went through an action plan which required him to request permission prior to leaving a rostered shift early, adhere to the Handbook policies and have it signed by 14 September 2010. However, he said that no follow up meeting was held.

[36] At the 20 September 2010 meeting to discuss his leaving early to go to the restroom at McDonalds, he had not wanted a witness present at the meeting. He claimed other employees left work early and that he had not left the ‘vicinity’ until 4:30am. Prior to this time he claimed he would be monitoring the car park for ‘certain things’, (just any security issues). He accepted no one had ever asked him to monitor the car park and it was not part of his job description. During the meeting, the applicant had said ‘I have no power as an individual and will try and rally support from the whole group of site staff’ and that he would continue to advise other staff of his disciplinary counsellings. In respect to Ms Murphy recording him saying ‘these meetings are a fucken joke and a waste of time, you won’t be happy until you have divided, conquered and terminated all staff. You know no staff like you’, he denied using the ‘f-word’ and denied he had been aggressive. He agreed he did say ‘I thought cream rises to the top. I guess in your case it isn’t true’. While he now regretted this comment, he claimed he had been very angry and frustrated at the time. He agreed he may have left the meeting midway through Ms Murphy outlining an action plan.

[37] In respect to the counselling meeting of 7 October 2010, the applicant agreed that he said he did not need a witness because ‘the meetings are a joke anyway, a complete waste of time’ designed to harass and bully him into resigning. He denied saying that ‘I’m trying to find loopholes in your current policies’. The applicant did not agree to the breach of policy concerning him processing his own transaction while another CSA was on duty. In fact, he had complied with the policy, because at the time, he was working ‘alone’. He denied saying ‘what’s the bloody point? You will never see commonsense’, and claimed that Ms Murphy was prone to fabrications. He could not recall if Ms Murphy had warned him that further breaches of policy would result in termination. He agreed Ms Murphy had told him to complete and sign the Handbook, and comply with the staff purchases and notification of absence policies.

[38] In respect to the final meeting on 29 October 2010, the applicant claimed Ms Murphy fabricated the following comments she alleged he had made:

● I do not want to ‘attend any more of these fucking meetings’;
● ‘I’m not reading this fucking document, you’re just out to bully and harass me’;
● ‘I refuse to attend any more of these fucking meetings. They are a waste of time and this is harassment. Tomorrow is my day off.

However, the applicant agreed that during the meeting, the purchase of the Tic Tacs was discussed. He said he had bought the Tic Tacs because he had ‘paranoia’ about bad breath when dealing with customers. He acknowledged that he had said that next time he would take great delight in watching Ms Morton fill out 9 stickers if he bought that many Caramello Koalas or perhaps he would buy 19 and it would be worth the $8 (to watch her put a sticker on each one). He claimed this was a meaningless statement designed to show what an employee could do if they wanted to cause trouble and antagonise management. He also agreed that he called Ms Murphy ‘a joke’ and said ‘what exactly is your major malfunction?’ He considered his was a ‘mild response’ considering he had just been terminated, and that his earlier comments during the meeting were a result of his frustration.

[39] The applicant explained that Ms Morton’s breakup with his brother was ‘recent’ in that it had been a year and a half since they began working together. He denied it was him who had the problem with Ms Morton. He also denied following her around the store in order to intimidate her.

[40] Mr George Nassis said he was apparently given a verbal warning on 28 June 2010, by Ms Morton concerning breaches of the respondent’s security policy. He said this discussion was informal and he had heard no more about it for 4 months. He was not aware it was an official warning. However, it had been written up by Ms Morton as an informal counselling session. He later received a ‘first and final’ warning for breaching the security policy on 15 October 2010. He believed that Ms Morton had made him an ‘accomplice’ in breaching the policy because she operated his console using his ‘sign in’ code. However, she had received no warning about her own breach of policy.

[41] At this juncture, I note that Mr Nassis was dismissed on the same day as the applicant. He subsequently lodged a s 394 unfair dismissal application which was determined by Harrison C in Nassis v Calstores P/L [2011] FWA 2031 (‘Nassis’) on 6 April, 2011. More will be said about this decision later.

Respondent’s evidence

Ms Gillian Murphy

[42] Ms Murphy outlined the various policies and procedures applying to the applicant and the acknowledgements by him of being required to comply with them as a condition of his employment. She also outlined ten training sessions the applicant had undertook concerning these policies. Ms Murphy had understood from the site’s former manager, that the applicant had had a number of performance issues, particularly concerning reliability and turning up for rostered shifts. While it was said that these issues involved formal counselling sessions, no records of them, as well as some of the applicant’s performance appraisal documents, were able to be located during the renovations of the worksite.

[43] Ms Murphy said a meeting was held on 27 May 2010 to discuss the knockdown/redevelopment of the site with resultant changes to the practice concerning meal breaks. This meant two CSAs on night shift could take meal breaks and leave the demountable to use the toilet or have a break. While the applicant had predominantly worked day shift, he was now required to work additional night shifts. On 12 July 2010, Ms Murphy received an email from Ms Morton in which the applicant had expressed concerns at the changes. He was advised the arrangements were a temporary measure during the KDR period, but that Ms Morton would do what she could to minimise the impact on him.

[44] On 27 June 2010, Ms Murphy had a discussion with Ms Morton about problems she was having with the applicant. The day before he had phoned the store at 5:20pm, stating that he could not make his shift at 6pm. He had not phoned her but had called the store direct. She had unsuccessfully tried to contact him and could not find a replacement for his shift. Ms Murphy instructed Ms Morton to have a discussion with the applicant about his obligations in respect to notification of sick leave. Ms Murphy understood Ms Morton had a meeting with him on 30 June 2010 (he had turned up 30 minutes late for his shift). She gave him a verbal warning and required him to provide a doctor’s certificate when he was sick. On 21 July 2010, Ms Morton sent another email to Ms Murphy regarding further breaches of policy by the applicant and had requested the matter ‘be moved into a written warning’. Ms Murphy understood the applicant received a second verbal warning in a meeting with Ms Morton on 27 July 2010. She also understood Ms Morton would be monitoring the applicant to ensure he was completing his shift duties.

[45] On 7 August 2010, while Ms Murphy was at the worksite with Ms Morton, the applicant phoned Ms Morton and told her he would not be turning up for his shift which was due to start in an hour. Given that he had already been counselled twice about absenteeism, Ms Murphy directed Ms Morton to issue him with a written warning. Ms Murphy accepted that she had called the applicant’s mobile phone around 9:30pm on 19 August 2010, to discuss a change of roster. She had intended to leave a voice message as she expected his phone would be switched off in accordance with the mobile phone policy. However, the applicant had answered his phone while on duty.

[46] On 23 August 2010, Ms Morton called Ms Murphy to advise her of a complaint from another CSA who had been working with the applicant on 2 and 3 August, 2010. Ms Morton had viewed CCTV footage in which she observed the applicant breaching a number of policies, in respect to staff purchases, cash withdrawals and mobile phone use. As the applicant had not been spoken to about these policies, she directed Ms Morton to give the applicant a verbal warning, and understood she did so that day. Ms Murphy said that, as the applicant’s behaviour did not seem to be improving, she decided to meet with him directly at the workplace. She was aware that the applicant had raised grievances with Ms Hahn, so it was decided to meet with him to discuss both matters. He was notified on 1 September 2010 to attend a meeting on 7 September 2010. Ms Murphy received a complaint from another CSA (Doug) about the applicant (via Ms Morton) concerning his unwillingness to assist on shift. However, the CSA did not wish to put his complaint in writing.

[47] Ms Murphy described the meeting of 7 September 2010. Ms Hahn had firstly explained the purpose of the meeting, which was to discuss the two matters. Ms Murphy found the applicant to be very rude and arrogant and she described his frequent use of coarse language. He had said words such as:

● ‘You’re shooting from the hip’

● ‘You don’t know what you’re talking about, you’re never here. You never come here, you never do night shift. That’s crap. I know you haven’t been here.’

● ‘You’re a joke’.

Ms Murphy gave the applicant a copy of the new Handbook and asked him to read it and return the signature acknowledgment page. After the meeting, Ms Murphy said that the respondent investigated the applicant’s claims that other CSA’s were ‘stealing time’ (leaving early). However, she said that no evidence was found to support the applicant’s claims.

[48] On or around 13 September 2010, Ms Morton called Ms Murphy to advise of another complaint, by another CSA, against the applicant, that he had left his shift early on 11 September 2010. Ms Morton reviewed CCTV footage and found that he had left at 4:14am, rather than 4:30am and had recorded 4:30am on the time sheet. Another complaint, from another CSA, was received on 15 September 2010. Ms Murphy decided to convene another meeting with the applicant. Prior to this meeting, Ms Morton informed Ms Murphy that the applicant was placing his counselling forms in the store diary. When they met on 20 September 2010, Ms Murphy said the applicant was extremely rude to her and said things such as:

● ‘I thought cream rises to the top. I guess it’s not true in your case.’
● ‘You’re just a joke’.

The applicant received a final written warning following this meeting.

[49] On 1 October 2010, Ms Morton called Ms Murphy and informed her that the applicant had again failed to comply with the sick leave policy and she had received another complaint from another CSA. On 7 October 2010, Ms Morton and Ms Murphy met the applicant again. Ms Murphy described the applicant’s behaviour as rude and abrupt; he swore frequently and appeared ‘disengaged’. He had refused to sign the Handbook because he disagreed with the respondent’s policies and he was looking for loopholes in them. Ms Murphy decided to give him one last chance and gave him a final written warning.

[50] Around the 18 October 2010, Ms Morton advised Ms Murphy that another CSA had complained about the applicant processing his own transaction for a packet of Tic Tacs and a $19 cash withdrawal from the till. Ms Morton had been in the office at the time and the applicant had asked the other CSA to stand beside him while he processed the transaction on his console. Later that day, Ms Murphy had delivered a letter to the applicant requesting he attend a meeting on 28 October 2010. When she did so, he was very rude and said ‘I’m not reading this fucking document. You’re just out to bully and harass me’. Ms Murphy said that customers were in the store at the time.

[51] At the meeting, Ms Murphy met the applicant with Mr Simon Daniel, Franchise Business Manager, as an independent witness. Throughout the meeting the applicant’s responses included, ‘these policies are a joke. I’m being bullied and harassed. You’re a joke.’ He made it clear he did not agree with the respondent’s policies and he intended to deliberately breach them, whenever he could. She adjourned the meeting. Ms Murphy said she was very disappointed with the applicant’s attitude - he was insulting, intimidating and seemed quite angry. Based on his history and attitude, she believed she had no choice but to terminate his employment.

[52] As to possible remedies, Ms Murphy believed the applicant’s reinstatement would be impossible, given his disagreement with almost every one of the respondent’s policies and his deliberate setting out to breach policies. She could have no confidence he would act appropriately in the workplace or respect the directions of his supervisors.

[53] In oral evidence, Ms Murphy was asked to detail the allegations raised by other CSAs against the applicant. She said she had received a phone call from ‘Doug’ who was upset about the applicant not completing his duties and his general behaviour and demeanour on site. Another employee, ‘Rochelle’, thought the applicant was an idiot because she had received a summons in Mr Nassis’s case, although she had no direct involvement with the applicant. Another employee, Mr ‘W’ had said to Ms Murphy that both employees (Nassis and Dickinson) had ‘made their beds and they could lie in it’.

[54] In cross examination, Ms Murphy said that when she had phoned the applicant at work she had planned to leave a voicemail. She denied the conversation was lengthy. When asked why she did not immediately hang up and call the store phone, Ms Murphy said that, in any event, the applicant was not counselled as to this mobile phone breach.

[55] CCTV footage was shown during Ms Murphy’s cross examination. It showed the applicant purchasing 2 cokes, 2 packets of lollies and 2 packets of chips, at a time another CSA was on duty. It also showed him eating and drinking behind the counter. Ms Murphy agreed she did not contact the applicant between the 19 October 2010, when she learnt of his staff purchasing breach, and his subsequent counselling on 29 October 2010. Ms Murphy relied on the CCTV footage and the till transaction history as evidence of staff purchase breaches. In any event, Ms Murphy noted that the applicant did not deny processing the transaction.

[56] Ms Murphy disagreed that she had bundled the issues relevant to him and Mr Nassis together when they should have been dealt with separately. She denied this process demonstrated her prejudice and bias toward the applicant.

[57] The applicant pointed out to Ms Murphy that Ms Hahn had not said that the applicant had frequently used offensive language and therefore there must be an inconsistency between Ms Hahn’s recollection and her own. Ms Murphy denied any inconsistency. He also asked why the ‘employee comments’ in the counselling formdid not include any reference to him swearing. Ms Murphy said that the form was not big enough to fit all comments arising from the meeting and, in any event, the counselling was not about his swearing. Ms Murphy was asked to explain why her statement that the applicant was rude, abrupt, swearing and upset had not been recorded in the counselling report which she had typed up later. She replied that the counselling sessions were not for breaches of the offensive language policy and, in any event, she tolerated a certain amount of leniency when employees were upset and uncomfortable. Nevertheless, she insisted that he used offensive language during the counselling sessions.

[58] Ms Murphy said there was no conflict between the security policy and the meal break policy during the KDR period, because one employee could take a break, while the other remained on duty. Ms Murphy agreed that the applicant did modify his behaviour (being late on 3 occasions, his annual leave requests, exceeding maximum cash out limit and the mobile phone policy), but further breaches of other polices continued. In any event, the applicant had said he was trying to find loopholes in the policies.

[59] Ms Murphy rejected the applicant’s suggestion that he was not aware of the staff purchase sticker policy because he had said, in a meeting before the 18 August, 2010, that he ‘would take delight in making Tegan write up 18 odd stickers to place on products’.

Ms Tegan Morton

[60] Ms Morton acknowledged that she had been in a relationship with the applicant’s brother. However, it had ended in February, 2008 and had no influence on her day to day dealings with the applicant. Ms Morton said that certain breaches of policy by the applicant were brought to her attention by other employees. ‘Doug’ had complained that the applicant would not assist him with his duties and ‘Jody’ had observed him consuming goods, and had not seen him pay for them. In addition, she herself was present when he had turned up late for his shift.

[61] In cross examination, Ms Morton agreed that it was the respondent’s policy to give 2 weeks notice of a roster change. When asked why the applicant could not give similar notice, she said it depended on the needs of the business and the availability of the staff. In any event, in respect to the applicant’s first counselling, she did not believe that he had given 2 weeks notice. Ms Morton was unsure if the applicant was exercising a ‘workplace right’ by asking not to be rostered on that day. She denied saying that ‘the roster is already up and I’m not changing it’. In fact, she had phoned other sites to see if they could accommodate his shift. She denied seeking to ‘engineer a crisis’ that would jeopardise the applicant’s employment and denied that she was prejudiced against him.

[62] Ms Morton disagreed that security policy compliance was lax under her management. She further disagreed that she had had a personal vendetta against the applicant. Ms Morton acknowledged that the applicant did improve his compliance with a certain number of the respondent’s policies; but further different breaches continued to occur. Ms Morton conceded that the applicant was acting in ‘good faith’ when he requested that she utilise a different console and cash float while he was on his lunch break.

[63] Ms Morton agreed with Ms Murphy’s evidence that the applicant frequently and deliberately set out to breach store policies and to find loopholes in them. Ms Morton could not recall all of the names of the CSAs who had complained about the applicant or in what form. However, no statements from other CSAs were put into evidence.

Ms Alison Hahn

[64] As National Human Resources Manager, Ms Hahn said that on 24 August 2010, she received an email from her colleague, Ms Ohanian, indicating that she had commenced an investigation into issues involving the applicant which included:

● Purchasing items from the store and not paying for them;
● Using his mobile phone whilst on shift;
● Fraudulent completion of time sheets;
● Inappropriate notification when not attending rostered shifts; and
● Not attending a rostered shift due to requesting the day off and without following correct annual leave process.

On 27 August 2010, when she received a list of grievances from the applicant, Ms Hahn commenced an investigation and spoke to him on or about the 30 August, 2010. His grievances were as follows:

‘You raised concerns that you were “unfairly disciplined” for missing a particular Saturday shift, which you believed you were entitled to be absent for.

Your second grievance related to the leave request you submitted for 4 and 5 September, which was declined. As discussed, your leave request could not be accommodated due to another CSA (Sally) having requested the same time off at an earlier date and there were no other CSA’s available to work the shift.

You raised concerns that your Business Manager, Gilliam Murphy deliberately phoned you on your mobile phone whilst at work in order to “catch you out”.

You claim that your store manager provided you with incorrect information relating to your eligibility to be paid for the August Bank Holiday. You are concerned that she either ‘lied deliberately’ or ‘didn’t care enough to find out the right answer’.

You have raised concerns that the implementation of unpaid breaks for night shifts during the KDR contradicts Calstores security standards.

You have raised concerns about rostering in Calstores and in particular at your site. You believe the wording in the Calstores Enterprise Agreement relating to rostering employees on weekends and public holidays on a rotating basis is neither realistic, nor desirable. You further claim that length of service be rewarded with longer serving employees being given the most desirable shifts.

You raised concerns that CSAs who were trained and previously paid to do the daily roll-over were no longer paid unless they were instructed to complete the roll-over in the absence of the store manager. CSAs on night shift were permitted to complete the roll-over during their shift, voluntarily but would not receive the $5 Rollover Allowance. You felt that your decision not to volunteer meant the burden of other CSA duties fell to you, whereas your colleague who volunteered to do the roll-over was excused from completing her CSA duties.

Your final grievance relates to Tegan’s placement as your manager at the site and your belief that you have been unfairly treated due to her past relationship with your brother’.

[65] Ms Hahn decided to hold a meeting with the applicant, Ms Murphy and Ms Morton to discuss both the performance issues and his grievances. This occurred on 7 September, 2010. Ms Hahn said that during the meeting she had found the applicant to have a poor attitude and his responses displayed a disregard for company policy. He had said he had no intention of doing more than he had to and that this was a ‘terrible job’. She felt he was disrespectful towards both Ms Murphy and Ms Morton by scoffing at their responses and disagreeing with everything they said. On the other hand, Ms Murphy was courteous and respectful. Ms Hahn formed the view that the applicant’s breaches of policy were wilful and a display of rebellion. He did not commit to improve his behaviour.

[66] Ms Hahn responded in writing to the applicant’s grievances on 29 September 2010 and concluded her email as follows:

‘You have noted the above grievances as examples of how you have been unfairly treated. I have found no evidence that you have been treated differently to any other CSA. As stated earlier, there appears to be a lack of clear communication between you and Tegan, which must be resolved in order for you to work effectively together.

You have advised me you have no interest in transferring to another location and that you had expected the past relationship with your brother would not affect your working relationship with Tegan. Tegan has echoed this sentiment.

However, I have recommended to your Business Manager that she monitor your ongoing relationship and that transfer to another location of yourself or Tegan remains an option.

Evan, I hope that this assists you in resolving many of the concerns you have raised. I thank you for taking the time to speak with me and for raising your grievances through the appropriate channels and I apologise for the delay in responding’.

In a reply email, dated 6 October 2010, while challenging Ms Hahn’s findings, the applicant said he was content to ‘let the matter rest’.

[67] In cross examination, Ms Hahn confirmed that there was a practice in which counselling forms were not completed during a meeting. She conceded it would be preferable to have the ‘comments’ section of the form filled out during the session, by both management and the employee, rather than have it typed in at a later date. Ms Hahn understood that it was management practice to give verbal warnings before written warnings, which were not always shown to the employee. She agreed an employee could be potentially oblivious as to whether they had received a verbal warning. Ms Hahn confirmed that verbal warnings can be referred to in counselling sessions and if serious enough, an employee could be issued a written warning for the same breach. Verbal warnings are noted in the manager’s diary or recorded on a file note and placed on the employee’s file. Ms Hahn conceded there was no consistent approach and no specific policy as to whether an employee receives a copy of a verbal warning. She believed the practice varied between managers. Ms Hahn confirmed that verbal counselling notes had not been signed by either the applicant or Ms Morton, and in one particular case, a verbal warning and a written warning were about the same issue. She explained that the purpose of a verbal warning was to make employees aware that any future indiscretion could result in a formal warning being issued. Ms Hahn accepted that it was reasonable to give an employee a copy of a completed counselling form and to communicate a written warning to an employee. However, she was unaware if this practice was applied to the applicant after each of his counselling sessions.

[68] Ms Hahn accepted that the applicant had raised an allegation of bias against Ms Morton. However, when it was investigated it was found to have no substance. Consequently, she did not accept that Ms Morton and Ms Murphy had failed to comply with the respondent’s counselling procedures in respect to dealing with counsellings in an unbiased manner. She also did not accept that Ms Murphy had demonstrated an intention of forcing the applicant to resign. She had merely responded to his comments about being unhappy about his job.

[69] Ms Hahn did not accept the applicant’s proposition that Ms Morton and Ms Murphy should have withdrawn from the counselling process. She said it was necessary to have an employee’s direct supervisors involved in managing any disciplinary process as they would be familiar with all the relevant issues. Ms Hahn was also asked what steps had been taken by the respondent since his dismissal to improve its disciplinary procedures (these questions were objected to and ruled irrelevant to the applicant’s unfair dismissal claim). Nevertheless, Ms Hahn agreed that it was not best practice to have a CSA checklist sign off where two CSAs were sharing a till, as it may be in breach of the cash handling policy. However, the site had received certain exemptions in this regard, as it had only one console available during the KDR project.

[70] Ms Hahn confirmed that despite the applicant’s grievances and whether they had been resolved or not, he was still going to be counselled. The applicant claimed that he was not in breach of the mobile phone policy when he answered a call from Ms Murphy. However, Ms Hahn understood the breach related to him being observed on CCTV footage later that night using his mobile phone. In any event, Ms Hahn said that answering a call from Ms Murphy was not a contributing factor that led to his dismissal.

[71] Ms Hahn said that she had contacted the applicant on 30 August 2010 to commence an investigation into his grievances. She made it very clear to him that at the meeting on 7 September 2010, the two issues of his work performance and his grievances would be discussed separately. She believed this process was fair. She said the loss of shift issue had no relevance to the matters to be discussed and, in any event, the fourth shift had been restored.

[72] Ms Hahn agreed that there was no strict time period requiring an employee to give notice of unavailability for a shift. However, the policy says ‘as much notice as possible’. Ms Hahn agreed that an employee at CSA Level 2 was allowed a certain degree of discretion in respect to the respondent’s policies and guidelines. However, if there was a conflict of policies in which safety was compromised, then the safety policy would override any other policy. In this respect, Ms Hahn did not believe the Tic Tacs incident represented a conflict in policies, particularly as the applicant had been warned about the issues previously and there is no workplace policy about interrupting a manager.

[73] Ms Hahn was asked about whether the respondent had a zero tolerance to offensive language. She said it depended on the circumstances, the language used and the involvement of management. She maintained the applicant had a poor attitude during counselling sessions. However, she agreed the applicant had been polite to her during counselling sessions and she could not recall the applicant’s frequent use of offensive language (as claimed by Ms Murphy). Ms Hahn agreed that it was quite possible to affect transfers of employees on the Central Coast. However, given the applicant had made it clear to her on a couple of occasions that he was not interested in a transfer, she took the matter no further. Ms Hahn acknowledged that Ms Morton had never lodged a complaint about her allegation of intimidation by the applicant.

[74] Ms Hahn was asked about her understanding of what ‘working alone’ meant in circumstances where the applicant claimed it was confusing when one person was physically alone in the store and a work colleague was temporarily outside the store. She disagreed that the policy was confusing and confirmed that the applicant had breached the policy on staff purchases. The applicant put to her that he had never stolen anything and was never deemed untrustworthy. However, Ms Hahn said the policy applies to every CSA, not just those suspected of stealing. Ms Hahn was asked to explain what she meant about the applicant’s wilful breaches of policy. She stated that this view was based on what he had said in the counselling sessions, including that he disagreed with the policies and did not think they should be enforced. She had formed the view that he was wilfully breaching policies as a form of rebellion as he did not agree with them. When he asked Ms Hahn about Ms Murphy and Ms Morton’s evidence that he had adjusted his behaviour to comply with certain policies, the question was objected to as a ‘misrepresentation of their evidence’.

Mr Nicholas Giokaris

[75] Mr Giokaris said the respondent has approximately 1100 employees and it was critical to the business that the respondent’s policies were adhered to, so as to ensure the smooth running of the business. He referred to the particular importance of the staff purchase policy which protects employees in the event of any cash discrepancies and also protects the business from financial losses.

[76] Mr Giokaris said that his involvement in the applicant’s termination was to be satisfied that he had been given a ‘fair go’ and given every opportunity to respond to the allegations and modify his behaviour. Mr Giokaris was satisfied that the applicant had been given prior counselling sessions, yet he continued to breach a number of policies. These justified his termination of employment.

[77] In cross examination, Mr Giokaris said he was informed of the applicant’s counselling sessions during weekly meetings with his staff. He was also aware of conflict between the applicant and Ms Morton because of the grievances raised by the applicant in August, 2010, which were investigated by Ms Hahn. Mr Giokaris said he was not aware that Ms Murphy had called the applicant’s mobile while he was at work, which he had answered, and was subsequently counselled for. He was also not aware of the conflict between the applicant and Ms Morton about the correct policy procedure for taking meal breaks. Mr Giokaris accepted that before authorising the applicant’s dismissal, he had not viewed any of the CCTV footage taken of the applicant, nor had he spoken directly to him.

SUBMISSIONS

The Applicant

[78] In a written submission, the applicant argued that he had been the subject of unsubstantiated and/or irrelevant allegations and that the respondent’s disciplinary process was inherently inconsistent. He disputed two of the three verbal warnings and referred to Ms Hahn’s evidence to demonstrate that managers had different approaches to recording verbal warnings. He also denied receiving written warnings and said that they were fabrications. He claimed the counselling process was designed to make the workplace so untenable as to force him to resign.

[79] The applicant believed that the complaints from other CSAs were doubtful and were being used to ‘dig up dirt’ about him. He said ‘Calstores management were interested in compiling a dossier of biased, unfounded and prejudicial claims’ against him to justify his dismissal. He described Ms Murphy’s behaviour as malicious which revealed her contempt for employees. The applicant queried the missing files allegedly concerning earlier counselling sessions and disciplinary interviews.

[80] The applicant submitted that Ms Morton’s allegation of harassment had never been put to him and he was stunned by Ms Murphy’s flagrant disregard for the truth and her utter contempt for employees. Management should be ashamed for allowing her to make such ‘vile and utterly false allegations’.

[81] In accepting that he had received training on the respondent’s policies and Handbook, the applicant insisted that management had full knowledge of many minor policy breaches at the workplace. It had been a workplace which had previously enjoyed a great deal of autonomy. He submitted that policies were ambiguous and alleged breaches, ‘purely technical, petty or accidental’. He believed Ms Murphy sought to alter the workplace culture by relying on a rigid and strict policy approach. He noted that his 2008 performance appraisal had rated him as ‘regularly exceeds many specified performance levels’.

[82] The applicant claimed that his counselling over the staff purchase policy was unfair because it concerned an amended policy which he was not aware of. In any event, his breaches were simple misunderstandings and were a result of uncertainty and confusion, particularly as to what happens when an employee is working alone. The applicant said that it defied logic and reason to describe his behaviour as wilful. He added that his final policy breach was to avoid workplace disruption and conflict in that he did not want to interrupt Ms Morton simply to purchase a packet of Tic Tacs.

[83] The applicant disputed what Ms Murphy said during the third counselling on 29 October 2010. He claimed her statement was a complete fabrication, because none of his alleged comments were recorded on the counselling form and Ms Hahn’s evidence supported his version of events. He said he had only asked Ms Murphy whether she had a ‘major malfunction’ once - not twice. The applicant noted that his policy breaches were not wilful as he did not gain from them personally. They were technical breaches which were harmless to the respondent’s business. In any event, he put that the staff purchase policy was a minor policy, which could never justify summary dismissal, if it was breached.

[84] The applicant denied taking a pre-emptive strike so as to avoid further counselling sessions, when he lodged his own grievances. He described the 7 September 2010 counselling session as a mixture of resurrected issues, the results of canvassing colleagues for ‘dirt’ and policy breaches orchestrated by management. As to punctuality, the applicant submitted that the roster changes had created turmoil for him. He said there was a contradiction between the lock doorpolicy and the meal breakpolicy which caused him to breach the policy. The applicant said he remained unsure of the sick leave notice policy and, in any event, he had a large amount of accrued leave and his attendance record was good. He said the ‘theft of time’ allegations stemming from using the McDonald’s toilets rather than the port-a-loo, was because the latter was cramped, unhygienic and dark.

[85] The applicant submitted that his evidence should be overwhelmingly preferred to that of the respondents; particularly Ms Murphy and Ms Morton. Ms Hahn had intentionally been evasive and vague. He put that Ms Morton lied under oath in that she said she covered the applicant’s break only once, but later said she did so on another occasion.

[86] The applicant said he had applied for around 100 jobs and he was in receipt of Centrelink benefits. The applicant cited Selvachandran v Peteron Plastics Pty Ltd 62 IR 371, in that the reason for his dismissal was ‘capricious, fanciful, spiteful and prejudiced’. He believed that there was no valid reason for his dismissal, but that it merely represented ‘a three strikes and you’re out’ mentality (see Edwards v Giudice (1999) FCA 1836 (23 December 1999). He cited Moore J in that decision as demonstrating that his explanations for his breaches were ‘falling on deaf ears’. He cited Qantas Airways Ltd v Cornwall (1998) 865 FCA, 28 July 1998, to demonstrate his breaches did not operate in a vacuum, but occurred during the KDR period and he was caught between a ‘rock and a hard place.’ He referred to ‘Nassis’, to demonstrate the procedural faults leading to his dismissal and cited Beck v Trinity Petroleum Service Pty Ltd [2011] FWA 2158, concerning offensive language in the workplace.

For the respondent

[87] Ms P Salewicz described the applicant as an evasive, contradictory and argumentative witness who displayed these same characteristics when cross examining the respondent’s witnesses. He frequently waivered from his version of events. He became agitated and upset if he could not get the answers he wanted and, on numerous occasions, he accused the respondent’s witnesses of lying under oath. These were serious allegations for which there must be clear and unequivocal evidence (see Christos v Curtin University of Technology PR974099, 25 September 2006). There was no such evidence in this case. It was just that the applicant’s perceptions of events differed sharply from the respondent. He also sought to draw inferences that could not possibly be drawn from the evidence.

[88] Ms Salewicz submitted that much of the applicant’s closing submissions were made without the support of any evidence and should, pursuant to s 577 of the Act, be disregarded by FWA. She highlighted these sections of the applicant’s closing submissions.

[89] Ms Salewicz said that the applicant’s dismissal was not ‘harsh, unreasonable or unjust’: see Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 at [466], and that this was a valid reason for his dismissal; namely, his wilful and continued breaches of a number of the respondent’s policies: see Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 and Parmalat Food Products Ltd v Wililo [2011] FWAFB 1166 at [24]. These were:

(a) Attendance at work:

● One occasion failed to attend (7.8.10)
● 3 occasions late to work (27/6/10, 19/7/10, 20/7/10)
● 1 occasion left work early (11/9/10)

(b) Absences on sick leave:

● 1 occasion failed to notify his store manager (26/6/10)
● 2 occasions failed to provide adequate notice (26/6/10, 30/9/10)

(c) Staff purchases:

● 1 occasion consumed an item from his store prior to payment (3.8.10)
● 3 occasions processed own transaction when not working alone (16.8.10, 21.9.10, 15.10.10)

(d) Cash withdrawals:

● 1 occasion withdrew above the store’s cash withdrawal amount (16.8.10)

(e) Mobile phone policy:

● 1 occasion using mobile phone whilst at work (19.8.10)

(f) Timesheets:

● 4 occasions failed to record his actual starting and finishing times (27.6.10, 19.7.10, 20.7.10, 11.9.10).

The breach that resulted in the termination of his employment was the breach of the staff purchases policy on 15 October, 2010.

[90] Ms Salewicz submitted that there was little doubt the applicant had breached the respondent’s policies on numerous occasions. However, he took issue with whether the policies were valid, whether he had a reasonable excuse for the breaches and whether they constituted a valid reason for his dismissal. Ms Salewicz noted that Harrison C in Nassis had said:

‘I accept the Respondent’s submission that given the high risks associated with the business and the size and scope of the operations, the Respondent had an absolute duty of care to ensure its policies were centralised and mandatory [para 38].’

Ms Salewicz added that none of the respondent’s policies were unreasonable or illegal and the respondent could not continue to employ an employee who had a pattern of non-compliance and who was unwilling to comply even when given a lengthy period of time to do so.

[91] Ms Salewicz noted that the applicant had agreed that:

● he was aware of the CSA Handbook and the terms of the 2010 Enterprise Agreement;
● he had signed an acknowledgment that he would agree to be bound by the terms and conditions set out in the Handbook;
● he had received an updated copy of the Handbook on 7 September, 2010;
● he had intended to comply with the Handbook;
● he was aware the Handbook contained the respondent’s expectations of him and he had never been told that its policies were to be complied with according to commonsense or workplace practices;
● he underwent numerous training on specific modules;
● he recalled his induction training and follow up training;
● he had read regular updates in the store diary;
● there were meetings with store staff and memos distributed following on from those meetings; and
● he knew there was a requirement of strict compliance with the respondent’s policies.

[92] Ms Salewicz outlined the various informal and formal discussions that were held about the applicant’s behaviour and lack of compliance with policies, which began in mid 2010. There were no less than 7 occasions in this regard. Ms Salewicz said that all of the applicant’s informal counsellings were discussed with him in the counselling meeting of 7 September, 2010. Despite being counselled for punctuality and attendance, four days later he was observed leaving the store prior to the end of his shift. Another counselling session was held in which he agreed he had been told of what was expected of him in respect to timesheets and requesting permission to leave his shift early. Ms Salewicz said that in the final formal counselling, the applicant made it very clear he did not agree with the respondent’s policies and it was his intention to breach them, whenever he could. In these circumstances, the respondent was left with no choice, but to terminate his employment.

[93] Ms Salewicz rejected the applicant’s submission that Ms Murphy had a vendetta against him and submitted that Ms Morton’s former relationship with the applicant’s brother had nothing to do with her dealings with the applicant. In fact, that relationship had ended in February, 2008, despite the applicant asserting it had ended ‘recently’. Ms Salewicz noted that while the applicant criticised the respondent for not considering him for a transfer to another site, it was he who had rejected this option. Ms Salewicz said the respondent assisted the applicant during the transfer period to night shifts. It had properly investigated his grievances and communicated its conclusions to him. The respondent agreed that the applicant was subject to scrutiny, but this was understandable given his earlier warnings.

[94] Ms Salewicz noted that the applicant claimed the respondent had manufactured other employees’ complaints about him and criticised why it took 21 days before ‘Jody’s’ complaint was raised with him. Ms Salewicz said the applicant had completely misrepresented the position and observed the CSA concerned had contacted Ms Morton the very next day after the breach had occurred. The later written complaint was part of Ms Murphy’s investigation into the breach. Ms Salewicz put that, at no stage, did the applicant acknowledge that he had done anything wrong. He excused his conduct as simple miscommunications, trivial policies, an accident, different interpretations and adjusting to new workplace arrangements.

[95] Ms Salewicz observed the applicant claimed, in respect to his failure to attend work on 7 August, 2010, that he was merely exercising a ‘workplace right’. However, he could not point to anything in the Handbook which permitted staff to unilaterally declare that they would be unavailable on a particular day. He knew he was breaching policy (see Erbacher v Golden Cockeral P/L [2007] AIRC 491).

[96] As to the staff purchase policy breaches, the applicant claimed he was adjusting to a new requirement for a sticker to be placed on a purchased item. This policy had never changed and it defied commonsense that the applicant would consume an item without paying for it and then argue that a sticker requirement prevented him from complying with a basic and strict policy. In respect to the staff purchase on 21 September 2010, the applicant insisted that he was ‘working alone’ as the other CSA was outside the store at the time. As to the excuse that he purchased the Tic Tacs straight away because he was concerned with bad breath, Ms Salewicz said that this excuse was only first raised in these proceedings. Moreover, it ignores the fact that he also withdrew $19 cash at the same time.

[97] Ms Salewicz pointed to the contradiction in the applicant’s evidence about lateness for work. He claimed he took his break before commencing his shift, but had previously said he just was not organised in time. The applicant also maintained an absurd proposition that ‘leaving work’ meant when he left the entire F3 complex.

[98] Ms Salewicz submitted that the Tribunal should not accept the applicant’s claim concerning a workplace culture or custom and practice as an explanation of his breaches of policies. If this was so, it does not explain why other CSAs had complained about his non-compliance. Further, the applicant’s claim of a lack of knowledge of the policies does not sit with the significant and extensive steps the respondent undertook to convey its expectations, its policies and implications if they were breached. In any event, he had three formal counselling sessions (see Lawerson v Laserlite Australia [2008] AIRC 601, para 29-30).

[99] In addressing the subsections of s 387 of the Act, Ms Salewicz acknowledged that the applicant was not given written confirmation of every verbal warning: see Batterham & Ors v Dairy Farmers [2011] FWA 1230 at para 274. However, he was given written notice of all formal counselling sessions and he knew exactly what was expected of him. The applicant provided responses at each counselling session and the respondent considered these responses before making a decision. On all occasions, the applicant was invited to have a support person present, but he had elected not to do so. Ms Salewicz submitted that the applicant was not denied procedural fairness. The applicant knew perfectly well what was alleged against him: see Starkey v Cootes Transport Group P/L [2011] FWA 228 at para 40.

[100] As to the respondent’s evidence, Ms Salewicz put that both Ms Murphy and Ms Hahn did not waiver in their recollections of the applicant’s appalling behaviour during the counselling sessions. Moreover, he had conceded he made the following comments:

● This is a terrible job;
● There’s no point in these meetings, you don’t see any sense;
● These meetings are a joke and a waste of time. You have no commonsense. You know no staff like you;
● I’m surprised that you’re in the position you are. I always thought the cream was meant to rise to the top;
● You and your policies are a joke. No one likes you. How do you sleep at night?;
● You as a person, you’re a joke, you’re not all there.

Ms Salewicz noted that inappropriate conduct during a disciplinary process can be a valid reason for termination: see Uitdenbogerd v ATO [2009] AIRC 29 (‘Uitdenbogerd’); Theoctistou v Austaron P/L.

[101] Ms Salewicz submitted that the applicant’s application for an unfair dismissal remedy should be dismissed. He had relatively short service and there was only one emailed job application put before the Tribunal in support of the applicant’s assertion that he had applied for approximately 100 jobs. Further, the applicant would not have remained employed for very long. If the Tribunal was minded to award any compensation, it should be reduced due to the applicant’s misconduct.

In reply

[102] The applicant repeated many of his arguments from his first submission. He noted that Ms Salewicz did not provide any examples of where he had allegedly waivered from his version of events. He had only become agitated and upset when faced with ‘abject fabrications’. The applicant compared his breaches of policy to those involved in the Nassis case in which there had been a wilful breach of important safety policies in which losses and risks were clearly identified.

[103] The applicant reiterated that he believed there was a vendetta against him. He denied being given three verbal warnings. He claimed Ms Morton’s evidence was misleading in respect to his annual leave request. He reasserted the conflict between the unpaid breaks policy and the lock door policy and said it was not a convenient excuse. He had raised a real policy dilemma. The applicant submitted that the procedural faults in his case were significant and he relied on the comments of Harrison C in the Nassis decision. He reiterated that the counselling documents were completed by the respondent long after the meetings had taken place. He pointed to the contradiction between Ms Murphy’s evidence and Ms Hahn’s evidence over the claims of frequent use of offensive language. He said Ms Murphy was not a credible witness and her evidence should be approached with considerable caution and suspicion. He described her as a ‘tyrant’. He added that Ms Morton was also not a credible witness.

[104] The applicant put that none of the breaches of policy were wilful, serious or continuous, but were unwitting, harmless and rare. There were also mitigating factors related to the KDR period. The applicant put that the staff purchase breach discussed in the 7 September 2010 counselling session occurred before the new policy was announced. The second breach was a misunderstanding because of the working alonepolicy. The last breach was a mere ‘physicality’. He put that these breaches were ‘a slight adaptation necessitated by real world circumstances’. In any event, he claimed that as a CSA Level 2, he had a discretionary power and that such a strict, rigid interpretation of the staff purchase policy is not ‘sound, defensible and well founded.’ Management should not ‘be permitted to cynically prosecute employees for purely technical and harmless breaches of relatively obscure company policies’. His breaches had never exposed the respondent to any risk or loss. He relied on Woolworths Ltd t/a Safeway v Brown (PR963023) (26 September 2005) as contrasting wilful and habitual breaches of policies to unwitting and accidental breaches.

- was the applicant engaged as a casual;

- had the applicant been employed by the respondent on a regular and systematic basis for a sequence of periods during a period of at least 12 months; and

- did the employee have a reasonable expectation of continuing employment by the employer.

- drawing a party's attention to the relevant legislative provisions and key decision(s) on the issue being determined. For example, in relation to a reg. 30B(1)(d) matter - Reed v Blue Line Cruises (per Moore J, Dec 571/96, 26 November 1996);

- asking a party questions designed to illicit information in relation to the issues which are central to the determination of the particular proceedings;

- assisting a party to conform to the Brown v Dunn principle and other procedural rules designed to avoid unfairness; and

- drawing a party's attention to the relative weight to be given to bar table statements as opposed to sworn evidence.

A member may also intervene, to an appropriate extent, by asking questions of witnesses. Such a role is appropriate in the following circumstances:

- to clear up a point that has been over looked or left obscure;

- to obtain additional evidence to better equip the member to choose between the witnesses versions of critical matters;

- to exclude irrelevances and discourage repetition;

- to ask admissible questions which a party is unable, for the moment, to formulate; and

- to facilitate expedition in the progress of the proceedings. [See generally Government Insurance Office (NSW) v Glasscock (1991) 13 MVR 521 at 534 per Handley JA; and Spiteri v Monocure Pty Ltd (1995) 62 IR 359.]’ See also Wan v Australian Broadcasting Commission (1999) PRS6650.

[116] That said, I am well satisfied that the applicant in this case was provided with every opportunity to put whatever he wished in support of his arguments, including raising irrelevant and argumentative matters during the cross examination of the respondent’s witnesses. A review of the transcript in this respect will reveal my numerous interventions and the applicant’s failure or unwillingness to accept directions as to a proper, relevant and expedient presentation of his case. While I accept that the applicant was totally unfamiliar with what was required of him during the proceedings, I found his disrespect towards witnesses and his determination to continually argue and focus on the correctness of his own position, entirely consistent, as I will later explain, with the behaviour he displayed during the last months of his employment with the respondent.

General Observations

[117] Unfortunately, I must say at the outset that I am not a bit surprised that the applicant was ultimately dismissed. In my view, the applicant demonstrated an unbelievable and reprehensible contempt for his supervisors and for the respondent’s policies, bordering on insubordination. His behaviour during counselling sessions, notwithstanding he considered them ‘comical’ and a waste of time, was nothing short of appalling. He believed he was an exemplary employee who had done nothing wrong and who was being unfairly pursued by vindictive and unprofessional managers. On any objective analysis of the evidence, this view bears not a shred of resemblance to reality. He had either a silly, irrational or implausible answer to each and every allegation raised by the respondent. What also struck me as clever, but ultimately unhelpful to his case, was his ability to construct arguments by relying on the respondent’s policies, when it suited him, but then when the policies didn’t match his behaviour, he insisted they were either inconsistent, observed in the breach by other employees or did not reflect the realities of the workplace. With this in mind, I have no doubt that he said in one of the counselling meetings, ‘I’m trying to find loopholes in your current policies’. Of course when all else failed, he attempted to deflect criticism of his own conduct by stating that the policies he had breached were also breached by his supervisors.

[118] Some examples of his irrational explanations included the following. He claimed that when he was late for work, on three occasions in two months, he was in fact taking his meal break, before his shift started in order to ensure he was not in conflict with the locked door policy and the meal breaks policy. Apart from the absurdity of taking a meal break before you even start work, and the fact that he had told no-one of this strange arrangement, it is most curious why he did not consistently take his break before the shift, but rather rationalised (irrationally) this as a reason for him being late on three occasions over many shifts. To use his own words, his explanation would be comical if it was not so serious.

[119] When questioned about the breach of the staff purchase policy, he claimed that he was working alone (and, presumably not in breach of the policy) when the other employee was outside the shop area. One might reasonably ask what was so urgent that he could not ask the other employee to come in and conduct the transaction for him according to the policy? In any event, his definition of working alone was patent nonsense.

[120] Even on his own admissions, the applicant had breached a number of the respondent’s policies; although given the CCTV footage, it is difficult to imagine him being able to claim otherwise. His admitted breaches include the following:

● using his mobile phone whilst on duty and obviously not having it turned off;
● recording incorrect start and finish times on his time sheets;
● not providing reasonable notice of his inability to attend for work;
● purchasing items for his own use, contrary to the staff purchasing policy;
● taking time off without the supervisor’s approval.

It might be said that taken individually, each of these incidents might not be regarded as particularly serious - minor indiscretions - and certainly not, on their own, a sufficient basis to constitute a valid reason for dismissal. However, each of the examples above cannot be disaggregated from a consistent pattern of behaviour which was confrontationist, argumentative and insubordinate. It included behaviour, particularly in counselling sessions, that ill behoved any employee; let alone one who paraded himself as an exemplary one. Overall, given all of the circumstances, I consider that the respondent was entirely justified in its decision to terminate the applicant’s employment. Moreover, there was not a skerrick of contrition for his conduct; simply a farrago of implausible and nonsensical explanations and self righteous counter allegations.

[121] There is no doubt in my mind that the applicant’s conduct over a long period of time, was inconsistent with any intention he had of maintaining his obligations to the integrity of the employment relationship (see Concut Pty Ltd v Worrell [2000] HCA 64). His conduct struck at the heart of the employment relationship in such a destructive way as to be entirely inconsistent with any intention of him continuing the relationship. Indeed, on his own evidence, the applicant had been looking for another job as early as 7 September, 2010.

Applicant’s evidence

[122] Other aspects of the applicant’s evidence were particularly disturbing and demonstrate a rather warped and bizarre understanding of his rights and obligations as an employee. For example:

● He claimed he was ‘exercising a workplace right’ by giving his manager 2 weeks’ notice of not coming in for a shift and he did not need to fill in a leave form. He said this was consistent with the respondent’s requirement to give 2 weeks’ notice of a roster change. Aside from the fact that there is a requirement for an employee to seek approval for any absence, on any sensible analysis, the applicant’s assertion is not a workplace right. It has nothing to do with the requirement of the respondent to give 2 weeks’ notice of a roster change. To then describe the respondent’s insistence on him filling in a leave form, as ‘playing hardball’ is a gross exaggeration. What could possibly be ‘hardball’ about filling in a request form for leave?
● He made threats to management about ‘rallying the staff’ to his cause and communicating the outcomes of his counselling sessions to other staff to keep them informed. Again, apart from the improper nature of these threats, there was no evidence that he could garner support from anyone. In addition, he claimed he couldn’t find a witness to attend one of his counselling sessions, notwithstanding he had over a week’s notice of the meeting.
● In respect to the staff purchase policy, he threatened to make life difficult for Ms Morton and would take great delight in watching her fill out 9 stickers if he purchased that many Caramello Koalas, or that if he bought 19, it would be worth the $8.
● He disputed the notes of the counselling sessions and claimed Ms Murphy was ‘prone to fabrication’. When pressed in cross examination, there was little information in the notes that the applicant denied. In any event, given my views about the applicant’s behaviour and conduct, I prefer the evidence of the respondent to that of the applicant where there was any conflict as to what occurred during the counselling sessions.
● The applicant claimed that when information was passed to Mr Giokaris, it was akin to ‘Chinese whispers’. I do not understand how this analogy is relevant, or applicable to what his complaint about the process was all about.
● The applicant believed Ms Morton had it in for him because of her recent failed relationship with his brother. Ms Morton readily conceded the relationship had ended - but this was in February 2008, over two and a half years before the applicant’s conflicts with her. Further, the applicant understated the time when the relationship ended deliberately to give the impression his problems with Ms Morton coincided with her breakup with his brother. I accept Ms Morton’s evidence that the ending of the relationship had nothing to do with her day to day dealings with the applicant. Moreover, the applicant’s claims of a vendetta does not account for why other employees complained about him. He chooses to ignore the reality of his attitude to Ms Murphy and Ms Hahn as well.
● The applicant criticised management for monitoring him after his second warning. Of course an employer is entitled to more closely scrutinise an employee after a second warning. I ask rhetorically, why wouldn’t an employer do so? The very purpose of a warning is to ensure that further issues are not repeated.
● The applicant complained that he was called ‘mate’ by Ms Murphy. This was not even disrespectful when compared to the language he used in his counselling sessions (see para 38) and his derogatory comments about his supervisors (such as ‘I thought cream rises to the top, I guess it’s not true in your case’), and describing them as unprofessional and a joke.
● His insubordination was plainly apparent when knowing he was subject to video surveillance, he continued to flout the respondent’s policies.
● As to the muesli bar issue, he claimed he hadn’t wanted to consume the goods. If this was so, why didn’t he wait until the other CSA was available before processing the transaction?
● There was no substance to the applicant’s assertion that he had breached the staff purchase policy, before the new policy was announced. He knew what the policy provided and he had breached the policy as it then existed. It is nonsense and disingenuous to claim he could not have breached the policy because it changed only marginally at a later time.
● The applicant claimed Ms Murphy had breached the mobile phone policy by calling him on his mobile to leave a message. This was ridiculous. I accept Ms Murphy’s evidence that she intended to leave a voice message.
● The applicant claimed he was ‘ambushed’ in that he was given a letter of a meeting notice. The letter did no more than give him notice to attend a counselling. It did not of itself ‘ambush’ him about anything. Did he seriously expect to be given notice of a notice to attend a meeting?
● The applicant even criticised the wrong date on a counselling form, as if it demonstrated some momentous procedural fault. This was nonsense. It was nothing more than a genuine mistake, that had absolutely zero impact on the fairness or otherwise of the disciplinary process.
● The applicant correctly asserted that there was a gap of 3 weeks, from 21 September 2010 - 15 October 2010, where there were no recorded incidents concerning his behaviour. He rationalised this as proving he had demonstrated he was doing the right thing and improving. This was an absurd proposition - as if a gap of 3 weeks of no incidents exonerated all preceeding and later behaviour.
● He also seemed to have believed that if you breach one policy, but don’t breach it again, that it cannot be taken into account when you breach a separate policy. In other words, on this logic, each breach must be considered on its own, and numerous breaches of other policies cannot be taken and considered together. If this was so, then very few cases involving multiple incidents of poor performance or conduct would ever demonstrate a pattern of behaviour to justify dismissal. Such a proposition is contrary to both logic and law.
● In the ultimate nonsensical submission, the applicant said that if he was as bad as the respondent had made out, he should have been summarily dismissed. He rationalised that, as he was dismissed with 3 weeks’ pay in lieu of notice, then the respondent had breached its own policy on summary dismissal. Given this idiotic notion, perhaps he might consider paying the respondent back for something he now believes he was not entitled to.

[123] The applicant’s central complaint against the respondent was that its warnings and counselling sessions were designed to bully and harass him into resigning. At the outset, I should say that it is becoming far too common these days for claims of bullying and harassment to arise in circumstances where an employer is merely seeking to manage the improvement of an employee’s performance or conduct. While this might appear to be a generalisation, in my recent experience, and this is a case in point, claims of bullying, harassment or discrimination are tossed around as a pre-emptory strike or used as a deflection from an employee’s own shortcomings. In this case, the applicant’s allegations sit rather uncomfortably with his own evidence that he was looking for another job as early as 7 September, 2010.

[124] Moreover, his behaviour and comments in counselling sessions with female managers could, on one view, amount to serious allegations of bullying by him towards them. Based upon my conclusions on the evidence, it is to Ms Murphy’s, Ms Morton’s and Ms Hahn’s credit that they conducted themselves appropriately, responsibly and respectfully at all times, despite the provocations of the applicant through his snide, obscene and disrespectful remarks. In addition, I also accept Ms Morton’s evidence that the applicant had followed her around the shop in an effort to intimidate her. This was outrageous behaviour. Ms Morton would have been perfectly entitled to complain about it. His criticism of her for not doing so, says more about her good sense than the applicant’s criticism of her not doing so.

Procedural Fairness

[125] In my view, Ms Hahn was an impressive witness; no doubt demonstrating why she is the National Human Resources Manager. She was prepared to accept criticisms of the counselling process, particularly in respect to verbal warnings not being provided in writing to employees. The applicant strenuously complained of procedural unfairness given Ms Hahn’s acknowledgement in this regard. I readily agree that it would be preferable to ensure that an employee knows he/she has been given a verbal warning. It would also be preferable for the employee to signoff or refuse to sign, as the case may be, on the counselling form. It would also be desirable to have a consistency of approach between managers as to the issuance of verbal warnings. Nevertheless, balanced against these acknowledgements is the following matters highlighted during the proceedings.

[126] Firstly, there can be no doubt that the applicant knew full well he had been warned by Ms Murphy as to breaches of the respondent’s policies and what the consequences of continued breaches would be. Secondly, the applicant himself acknowledged that he had breached the respondent’s policies, but his defences were that he applied them ‘flexibly’ or that other persons had breached them too, or that they were inconsistent. Thirdly, given the applicant’s contempt for the counselling sessions, providing him with a formal copy of the record and outcome of proceedings, would have unlikely changed his attitude towards the counsellings. Fourthly, the applicant raised silly irrelevant procedural technicalities such as the incorrect date on the counselling session of 28 October 2010, when it occurred on the 29 October 2010 and Ms Murphy’s failure to contact him between the date of the staff purchase breach of 18 October 2010 and the date of the counselling on 29 October 2010.

[127] Fifthly, the applicant submitted that because the counselling forms were not signed by him meant that they were a ‘complete fabrication’. Two things may be said about this submission. Firstly, accepting this proposition would require me to find that Ms Murphy and Ms Morton simply made up the bulk of their detailed evidence in order to justify the applicant’s dismissal. I do not intend to do so, as I found Ms Morton and Ms Murphy to be open, honest and credible witnesses. Secondly, the applicant overlooks the obvious inconsistency in his argument when he claimed documents were fabricated because he didn’t sign them, when he himself had refused to sign the Policy Handbook acknowledgement.

[128] Sixthly, the applicant challenged Ms Murphy as to why his comments about his swearing and offensive language were not recorded on the counselling documents. Ms Murphy, correctly in my view, explained that the applicant was not counselled for these comments and, in any event, she accepted he was upset. Viewed in this way, there was no procedural fault.

The ‘Nassis’ Case

[129] The applicant’s reliance on the decision of Harrison C, in Nassis, was highly selective. In any event, the decision does not assist the applicant’s arguments at all. Ironically, the applicant cast Mr Nassis, (a person he called as a witness in his own case), as a perpetrator of far more serious breaches than he had ever committed - presumably to draw a conclusion that his case warranted a higher level of compensation than that which was awarded to Mr Nassis. The applicant relied on the Commissioner’s comment that compliance with the respondent’s policies was lax prior to the appointment of Ms Murphy as Business Manager in 2009. While this states the correct factual position, it cannot explain away the applicant’s conduct and behaviour. Moreover, the Commissioner does not criticise Ms Murphy’s tightening up of compliance, nor does he rely on it as a basis for concluding that there was no valid reason for Mr Nassis’ dismissal. Indeed, the Commissioner found quite to the contrary as paras 39 - 42 make plain:

‘I accept the Respondent’s submission that given the high risks associated with the business and the size and scope of the operations, the Respondent had an absolute duty of care to ensure its policies were centralised and mandatory. The authorised exception at the F3 Wyong location was clearly communicated and no other individual variations could be tolerated.

On his own admissions the Applicant breached the policies and rationalised his actions on the grounds he was adjusting to working in a new store and was trying his best.

Regrettably in the context of working as a sole operator on the graveyard shift the Applicant put customer convenience first and his own safety and security second.

In all of the circumstances of this matter I find the Applicant’s breaches of the Respondent’s policies a valid reason for his termination’.

In addition, I note the Commissioner’s comments at paras 61 and 62 of his decision:

‘The remuneration the Applicant would have received but for the termination can only be a speculative estimate. The Applicant did not appear to take the warning signs that his employment was in jeopardy seriously. On his own evidence he was insensitive to the tightening up of security procedures on site.

Given the growing accumulation of allegations in my view the Applicant would not have remained employed for any lengthy period’.

[130] While I accept that the Commissioner made a modest order for compensation in Nassis based on procedural faults, for the reasons I have earlier outlined, I do not consider such faults, as may be correspondingly relevant here, were of such seriousness as to ground a finding of procedural unfairness in this case. More importantly, however, I do not discern from the Commissioner’s decision, that there was ever an issue with Mr Nassis’ behaviour and attitude toward management during his counselling meetings. This stands in marked contrast to the applicant’s appalling behaviour and utter disdain toward management and the respondent’s policies, including the counselling process. Even given the applicant’s acknowledged comments about Ms Murphy and Ms Morton, the facts and circumstances surrounding Mr Nassis’ dismissal were markedly different to those that were evident in this case. The applicant conveniently passed over this disparity between his own and Mr Nassis’ circumstances. I would add that there is no doubt that the Tribunal is able to have regard to an employee’s behaviour during counsellings or performance reviews when considering whether a decision to dismiss the employee was ‘harsh, unreasonable or unjust’. In this respect, I refer to the comments of Williams, C in ‘Uitenbogard’ at paras 122 and 176, as follows:

‘In summary there is sufficient evidence, particularly but not only, the evidence of Mr Ramanathan, Mr Carpenter, Mr McGrath, Mr Davies and Mr Warne to satisfy me that the conclusion of the final assessment report was correct. The evidence of these witnesses for the respondent comprehensively demonstrated that the applicant's performance was unsatisfactory and at times his behaviour had been inappropriate during the review formal performance management period.

The evidence shows that the instances of the applicant's unsatisfactory performance were numerous and significant and had not been resolved even after additional mentoring and support had been provided and time for improvement allowed. In addition the evidence is that the applicant did not approach the formal performance management process in a positive manner. The applicant did not throughout the period of review demonstrate to the respondent that notwithstanding his unsatisfactory performance here was a willing employee striving to do his best to meet the reasonable expectations of the respondent’.

[131] Turning now to the specific requirements of s 387 of the Act, I make the following findings:

● there was a valid reason for the applicant’s dismissal in that he repeatedly and deliberately breached the respondent’s policies (subsection (a));

● the applicant was not only notified of the reason for his dismissal, but he was made aware of the reason/s over a reasonable period of time (subsection (b));
● the applicant had numerous opportunities to respond to and to explain his breaches of policies in counselling sessions. He compounded his misbehaviour by treating the counselling sessions with disdain and contempt (subsection (c));
● there was no refusal by the employer to allow the applicant a support person to be present (subsection (d)). I note that for the meeting of the 7 October 2010, the applicant had said ‘I don’t need a witness’;
● the applicant was given a number of warnings that if he continued to breach the respondent’s policies, his employment may be terminated (subsection (e)). He was under no illusion as to what action would flow from his continued breach of policies.
● Subsections (f) and (g) relating to the size of the employer’s enterprise and its human resource expertise are not relevant to this application, although I note that the respondent is a relatively large employer with a dedicated human resource team.
● I have earlier canvassed other matters which I consider relevant to this application; (subsection (h)).

[132] Accordingly, for the aforementioned reasons, I find no basis for a conclusion that the applicant’s dismissal on 29 October 2010 was ‘harsh, unreasonable or unjust’, either substantively or procedurally, after applying the tests in s 387 of the Act. The applicant was not unfairly dismissed, as required by s 385 of the Act. It follows that his application for an unfair dismissal remedy must be dismissed. An order to that effect will be issued contemporaneously with this decision. Foreshadowed proceedings as to remedy are unnecessary and the matter is concluded.

DEPUTY PRESIDENT

Appearances:

Mr E Dickinson - unrepresented

Ms P Salewicz - for the respondent

Hearing details:

2011
SYDNEY
7, 8 April; 25 May; 12 September

Final written submissions:

June, 2011

Printed by authority of the Commonwealth Government Printer

<Price code C, PR515330>