Gary Lucas v Community Connections (Vic) Ltd

[2010] FWA 3763

[2010] FWA 3763

FAIR WORK COMMISSION

DECISION

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

Gary Lucas
v
Community Connections (Vic) Ltd
(U2009/14305)

COMMISSIONER BLAIR MELBOURNE, 17 MAY 2010

Application for unfair dismissal remedy.

[1] This is an application by Mr Gary Lucas (the Applicant) for unfair dismissal remedy against Community Connections (Vic) Ltd (the Respondent).

[2] Following submissions presented by the parties in Melbourne on Friday 30 April 2010, Fair Work Australia (the Tribunal) has decided to exercise its discretionary powers under s.594 of the Fair Work Act 2009 (the Act), which reads:

“594 Confidential evidence

(1) FWA may make an order prohibiting or restricting the publication of the following in relation to a matter before FWA (whether or not FWA holds a hearing in relation to the matter) if FWA is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to FWA in relation to the matter;

(b) the names and addresses of persons making submissions to FWA in relation to the matter;

(c) matters contained in documents lodged with FWA or received in evidence by FWA in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.

(2) Subsection (1) does not apply to the publication of a submission made to FWA for consideration in an annual wage review (see subsection 289(2)).”

[3] In relation, in particular, to s.594(1)(d), the Tribunal has decided to exercise its discretion in regard to restricting or prohibiting the publication of its reasons in this particular matter due to the concern by the Tribunal of the effects that the reasons for its decision may have on the Respondent. The Tribunal is not so much concerned about individualism but more that the reasons for its decision may have an impact on the good work that the Respondent does within the various communities in the south west part of Victoria.

[4] The Tribunal will order that the reasons for its decision be made available to the representatives of the Applicant, Mr Andrew Weinmann and the representatives of the Respondent, Mr McKoewn of counsel, and his instructing solictor, Ms Paula Robinson.

[5] This matter came to the Tribunal by way of a s.394 application by the Applicant alleging that his termination was harsh, unjust and unreasonable.

[6] The Applicant commenced employment with the Respondent on 19 February 2001 as a housing support worker working with public housing tenants. In the last several years of his employment with the Respondent, the Applicant did financial counselling as well as other duties. The Applicant states that his hours ranged from 38 to 60 hours per week and his employment was terminated on 25 November 2009.

[7] The Applicant advises that he joined the Australian Services Union (the Union) shortly after he commenced work with the Respondent. The Tribunal does not intend to go into detail regarding the Applicant’s union activities or the relationship between the Union and the Respondent in this matter. Suffice to say that there appeared to be some tension between those that had joined the Union and who were active in the Union and with the Respondent. That tension arose out of what was perceived by the Union and its members to be a reluctance on the part of the Respondent to actively engage the Union in enterprise bargaining.

[8] On or about 6 April 2009 the Applicant went on WorkCover and returned to work approximately two weeks later. A return to work plan was presented to the Applicant but it stated that the Applicant was not allowed to participate in industrial activities other than in his lunch hour. The Applicant refused to sign the plan for he believed that industrial relations was constant at the time and emails were sent continuously from the chief executive’s office.

[9] The Applicant also believes that there was ongoing bullying and harassment and he was regularly being approached by colleagues who felt threatened by management.

[10] The Applicant states that if he read one of the CEO’s emails outside lunch hour or spoke to other staff members about an issue they rose with him, he would be participating in industrial activity and therefore in breach of the return to work plan.

[11] The Applicant spoke to the HR Manager, Ms Taier Bage, and said he would put in seven paid work hours and deal with any industrial relations issues as they arose. Ms Bage advised that the executive management wouldn’t accept any changes to the terms of his return to work plan. The Applicant then refused to sign the return to work plan. He was then asked to leave the building.

[12] The Applicant then decided to put in a grievance against the CEO.

[13] Following some discussions between the parties, the Respondent advised the Applicant that they would not deal with any of the grievances until there was a return to work full time by the Applicant. The Applicant never returned to work full time. He was able to work four days per week.

[14] The Applicant received a warning for attending the workplace whilst on WorkCover.

[15] On 13 November 2009, the Applicant was called to a meeting with Ms Bage at approximately 4.30pm. Ms Bage advised the Applicant that he was required to attend a meeting on 20 November 2009. The Applicant advised the Respondent that he had leave booked for 17 and 18 November to take his mother to Geelong for an angiogram, which was booked for 17 November. He also advised the Respondent that if there were delays he might not make it back for the meeting scheduled for 20 November.

[16] The Applicant subsequently found an email advising that he was required to attend the meeting on 20 November 2009. That email states in part:

“This will be a disciplinary meeting to discuss defamatory comments made by you about the CEO to the OH&S administrator. The purpose of this meeting is to discuss these concerns, give you the opportunity to respond and to develop a plan to ensure these comments aren’t made in the future. The Agency values your contribution to the workplace and would like to be able to address these issues.”

[17] The Applicant emailed Ms Bage wanting to know what defamatory comments had been made. The Applicant received no response from Ms Bage.

[18] The Applicant states that his health took a turn for the worse and on 16 November 2009 he obtained a medical certificate stating that he was unfit for work for the following 28 days. The Applicant then presented that certificate to the Respondent. The Applicant’s mother did not get her angiogram done until 19 November. The Applicant states that he called Ms Emma G, the receptionist, on the morning of 20 November and said that he would be unable to make the meeting scheduled for that day.

[19] The Applicant states that he advised the receptionist that following the angiogram his mother needed surgery, and that the surgery could not occur until the following week and that he did not know when he would be able to make it back to work.

[20] On or about 2 December 2009, while still in Geelong, the Applicant received a letter dated 25 November 2009 from Ms Bage. The letter states in part:

“The investigation regarding the defamatory comments and threats to cause harm to staff of our organisation with a motor vehicle has been taken very seriously in accordance with agency policies and procedures.

The outcome of this investigation results in you being summarily dismissed from your position as financial counsellor and SHASP worker with Community Connections (Vic) Ltd with effect from 25 November 2009.”

[21] The Applicant states that he received no contact from the Respondent between the commencement of his leave on 17 November and 25 November 2009.

[22] The Applicant suspects that one of the comments he was sacked for was made in a meeting he had with the return to work officer, Andrew Harriet, from Workable, who was appointed his WorkCover case manager by QBE Insurance. The Applicant believes that that meeting was around September 2009 and was also attended by Ms Bage, but not the OH&S administrator as suggested in the letter dated 13 November 2009.

[23] The Applicant believes that Mr Harriet asked what it would take for the Applicant to return to work on a full time basis. The Applicant states that the said in a lighthearted tone “maybe for the bus to run over the CEO and then back over a couple of the executive management team”. He believes that Mr Harriet and Ms Bage accepted that remark in the manner in which it was intended and that was to be lighthearted.

[24] The Respondent endorses the Applicant’s commencement date; that is 19 February 2001, and states that the Applicant was employed in the financial counselling programme of the Respondent’s services and also within the Social Housing and Support Programme (SHASP).

[25] The Respondent provides a range of human and social justice services to families and children and individuals who are residents in the southwestern region of Victoria.

[26] The Respondent confirms the position of the Applicant in that at the time of termination of his employment the Applicant was working four days per week pursuant to a return to work programme whilst on WorkCover.

[27] The Respondent states that in the twelve months prior to the Applicant’s termination the Applicant was disciplined on two occasions in relation to his work performance. The first was a verbal warning on 19 March 2009 regarding the Applicant’s action in sending out an email to all of the Respondent’s staff expressing opinions on the current state of industrial relations with the Respondent’s workforce. The second was a written warning on 13 October 2009 for his actions of accessing the work premises and utilising work resources without authorisation and whilst he had been providing medical certificates regarding his unfitness to work to WorkCover.

[28] The Respondent also states that there were incidents involving the Applicant and the Respondent’s CEO over the period of 2008 to 2009 which provided for a difficult work environment.

[29] The Respondent states that the circumstances that lead to the termination of the Applicant’s employment with the Respondent on 25 November 2009 arose from matters occurring on 14 October 2009 and 12 November 2009.

[30] On 12 November 2009 Ms Sarah Prescott, Executive Director Services and Innovations, was advised by Ms Cheryl Bennett, OH&S administrator of a discussion she had had with the Applicant that day and the defamatory comments made by the Applicant about the CEO and threats to injure the CEO and two other executive managers.

[31] The Respondent states that the Applicant had an opportunity to respond to these allegations at the meeting scheduled for 20 November 2009. The Applicant did not attend but had left a message with reception on 19 November 2009 indicating that he wouldn’t be in for the rest of the week despite the fact that an arrangement had been put in place at a previous supervision meeting that he would notify Sarah Prescott directly as to his whereabouts.

[32] In the witness statement of Ms Cheryl Bennett, the Respondent’s OH&S administrator, she refers to a meeting on or about 14 November 2009 when Ms Bennett met the Applicant concerning queries relating to bullying and harassment policy for the agency. Ms Bennett believes that the Applicant believed that part of the procedure in the policy was to approach the CEO of the Agency and he believed that the CEO would have some bias as the Applicant had previously had bullying issues with the CEO. Ms Bennett stated that during this meeting the Applicant recalled a lot of past incidents and asserted that he had reported them but nothing had been done about them.

[33] Ms Bennett stated that she wanted to help the Applicant understand the policy and discuss the procedure for this policy and clarified his queries about it. She stated that during the discussion the Applicant made some comments about the CEO, such as calling him a “lying pig” and that the bullying had been going on for ages and the CEO shouldn’t be in the position he is in. Ms Bennett, in her statement, took offence at that and advised the Applicant that he shouldn’t be defaming the CEO, as with her background in the army it is particularly important not to disrespect nor defame your superior.

[34] Ms Bennett then decided that because of the way she perceived the Applicant’s comments, calling the CEO “a lying pig” which under evidence came out to being “a pig”, she should lodge an incidence report in relation to the discussion she had had with the Applicant.

[35] The Tribunal understands that the Applicant perceived the meeting with Ms Bennett to be a private and confidential meeting and that confidentiality had been broken, in that arising from his comments that he thought were being said in private resulted in an incident report being lodged with the Respondent.

[36] Ms Bennett had a further meeting with the Applicant on 12 November 2009 as she needed to see him regarding the incident report. It was during this meeting that it is alleged the Applicant again made some comments about Community Connections being better off if he drove over the CEO and backed up over one of the executive members. Ms Bennett believed that the Applicant was referring to Ms Sarah Prescott as the executive member he would back over. The discussion went on further concerning allegations of bullying that had occurred in the past and which the Applicant believed that nothing had been done.

[37] Ms Bennett sent an email to Ms Prescott and Ms Bage asking them to meet with her. All three met on the same day and Ms Bennett informed them about the discussion that she had with the Applicant as well as the previous discussion that she’d had with the Applicant on 14 October 2009 and informed them that she believed that the Applicant was referring to Sarah as the executive member he would back over.

[38] The email sent by Ms Bennett, dated 12 November 2009, states as follows:

“On the 14/10/2009 I had a meeting with a staff member to discuss the bullying and harassment policy. In the course of the conversation comments were made which I felt would contribute to the defamation of another person.

Unfortunately the staff member has been on leave and until now I have not been able to discuss the incident report with him.

Today I have discussed it with the staff member and allowed for him to make a response. He is unsure of the comments now as it happened sometime and does recall a different conversation ad also believed confidentiality should have been maintained. I explained I am bound by a code of ethics and the policy which I review, updated and submitted for approval had been breached.

In following the process for reporting incidents as his Supervisor could we meet (perhaps in the West Wing if available) so I can provide you with the detail of the incident the recommendations for preventative/corrective actions.”

[39] The policy referred to in the email very clearly states that confidentiality is a key part of that policy. It would appear that Ms Bennett had breached her own policy.

[40] It is interesting to note that the email does not refer to the alleged death threat; that is the Applicant driving a bus over the CEO and at least one maybe two executive members at all. It simply refers to, what Ms Bennett believes, were defamatory comments made about the CEO; that is the Applicant calling the CEO “a pig”.

[41] It needs to be understood that the Applicant, in calling the CEO “a pig” was talking to Ms Bennett about the CEO being a bully and harassing staff.

[42] The Tribunal notes that the second comment, about the Applicant wanting to run over the CEO and one or two other members of the executive team in a bus does not even rate a mention in the email from Ms Bennett dated 12 November 2009.

[43] Any reasonable person who looked at the comments objectively would come to the conclusion that there was no defaming of the CEO and there was no death threat against the CEO or any other member of the executive team. A thespian from the first night of an opening play is not wished good luck but is told to break a leg, not that anyone wishes for them to break a leg or that they intend to have their leg broken; it is simply a figure of speech. It was the Applicant’s attempt at being lighthearted. There was nothing malicious in his comment about running over the CEO in a bus at all.

[44] No attempt was made to stand the Applicant down if such a threat occurred, and if such a threat occurred, why did the Respondent wait 13 days before terminating the Applicant?

[45] It would appear to the Tribunal, based on the evidence and endorsed in transcript at [PN2966], that the CEO was offended by what he perceived to be a belligerent attitude on the part of the Applicant. The Tribunal is not aware of a law that prohibits people from being belligerent.

[46] It would also appear that the CEO holds the Applicant responsible for a stop-work meeting and an incident that arose out of that stop-work meeting.

[47] Further the Tribunal believes that the Applicant was denied the basic fundamentals of procedural fairness and natural justice in that he was not provided with any opportunity to explain his version of events. The Respondent knew very well that the Applicant may not have been able to make the meeting scheduled for 20 November 2009.

[48] It is interesting to note that in relation to the termination letter received by the Applicant on 25 November 2009 that the Applicant had sent by registered mail a medical certificate covering his absence from work and that certificate was received by the Respondent on 25 November 2009.

[49] Having determined there was no valid reason for the termination of the Applicant the Tribunal turns its mind to remedy.

[50] The Tribunal notes that the Applicant no longer wishes to be reinstated to his place of employment. The Tribunal therefore determines that compensation is appropriate. The Tribunal determines that four months’ salary based on a minimum of $885.87 per week gross be paid to the Applicant in the form of compensation. If the Applicant’s weekly earnings are more than $885.87 gross then the higher rate is to apply.

[51] The Tribunal makes the following observations.

[52] The Tribunal, as part of its decision, referred to any reasonable person who looked at the matter objectively as part of its reasons for determining that the termination of the Applicant was harsh, unjust and unreasonable and that there was no valid reason, makes that statement on the basis that there appears to be, amongst the executive members of the Respondent, a blind loyalty to the CEO for whatever reason. That blind loyalty, in the Tribunal’s view, distorts any objective thinking that the executive officers need to do particularly if allegations are made against the CEO of bullying or harassment.

[53] The Tribunal does not question the ability or the integrity of those executive members just their objective thinking, because of this loyalty to the CEO.

[54] The Tribunal also found the CEO to be somewhat evasive in his answers and where he did provide a response to questions he was, at times, overly dramatic.

[55] This completes the confidential part of the Decision. The following is not subject to the boundaries of s.594 of the Act.

[56] The Tribunal has determined in this matter there was no valid reason for the termination of the Applicant by the Respondent.

[57] The Tribunal has come to the conclusion that the alleged death threats and the alleged defaming of the CEO did not occur and therefore there was no valid reason for the termination of the Applicant.

COMMISSIONER

Appearances:

Mr A Weinmann for Mr Lucas

Mr G McKeown of Counsel with Ms P Robinson for Community Connections (Vic) Ltd

Hearing details:

2010

Warrnambool

March 23 and 24

April 12 and 13

Melbourne

April 30

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