George Bechara v Ashford Homes Pty Ltd T/A Ashford Homes

[2016] FWC 3542

[2016] FWC 3542

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

George Bechara
v
Ashford Homes Pty Ltd T/A Ashford Homes
(U2015/13525)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 31 MAY 2016

Application for relief from unfair dismissal - whether valid reason for dismissal – whether dismissal was harsh, unjust or unreasonable – Fair Work Act 2009 – ss.387, 394.

[1] This matter concerns an application for an unfair dismissal remedy by Mr George Bechara. On 12 October 2015 Mr Bechara made an application pursuant to section 394 of the Fair Work Act 2009 (the Act) for remedy in respect of his dismissal by Ashford Homes Pty Ltd T/A Ashford Homes (Ashford Homes).

[2] The application indicated the date Mr Bechara’s dismissal took effect was 9 October 2016. Consequently, the application was made within the 21 day time limit prescribed by section 394(2) of the Act.

[3] The reasons provided by Ashford Homes for the dismissal of Mr Bechara were that Mr Bechara had:

● Refused to assume the full duties of the Construction Manager role;
● Refused to discuss any changes to the role as he saw it; and
● A lack of trust of anyone at Ashford which impeded his abilities to properly resolve and discuss issues as a construction manager.

[4] Mr Bechara submits that Ashford Homes had unfairly dismissed him from his employment whilst he was on sick leave because he had refused to agree to changes in the scope of his employment, and because he had lodged a general protections application and he had refused to resign from his employment.

Procedural Background

[5] The matter was not resolved at conciliation, and it proceeded to arbitration before me in a Hearing conducted in Melbourne on 7 and 8 March 2016.

[6] On 4 March 2016, prior to the hearing, the Commission sought submissions from the parties as to whether permission should be granted for the parties to be represented, Mr Addison a lawyer for Mr Bechara and Mr Wareham for Ashford Homes. A determination of this issue is necessary to ensure that the manner in which a hearing is conducted is fair and just. 1

[7] In Warrell v Walton, 2 the Federal Court held that:

“24 A decision to grant or refuse ‘permission’ for a party to be represented by ‘a lawyer’ pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party ‘in a matter before FWA’ must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere ‘formal’ act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted ‘only if’ one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., ‘FWA may grant permission...’. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting ‘permission’.”

[8] Section 596 of the Act provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

… “

[9] Mr Addison for the Applicant submitted that it would be unfair not to allow Mr Bechara to be represented because although Mr Bechara is able to speak and understand English and did not need an interpreter, he is not from an English speaking background and English was not his first language. Mr Bechara had had some difficulties with understanding some phrases and some of the language used during the jurisdiction hearing. For those reasons, it was submitted that Mr Bechara was unable to represent himself effectively and efficiently.

[10] Mr Wareham for the Respondent submitted that although Ashford Homes was not a Small Business as defined in the Act, it is a small operation without a dedicated Human Resource function or expertise within the business.

[11] Having considered the submissions of the parties, taking into account Mr Bechara’s background and Ashford Homes being without a dedicated Human Resource function or expertise, the Commission determined that allowing Mr Bechara and Ashford Homes to be represented would enable the matter to be dealt with more efficiently.

[12] Mr Bechara filed written submissions in the Commission on 2 February 2016. Ashford Homes filed written submissions in the Commission on 22 February 2016.

[13] Mr Bechara gave evidence on his own behalf. The following witnesses gave evidence on behalf of Ashford Homes:

● Mr Johan Wiggett, Chief Financial Officer of Home Australia (Ashford Homes is a subsidiary of Home Australia).

● Mr Michael Williams, Sales and Operations Manager for Ashford Homes.

Background

[14] Mr Bechara had been employed by Ashford Homes since August 2011. Prior to his dismissal, Mr Bechara was the Construction Manager responsible for managing both the construction and maintenance activities.

[15] Mr Williams commenced employment with Ashford Homes in March 2003 and was originally appointed as the Sales and Administration Manager. Some time in or around February 2015, Mr Williams’ role title changed to Sales and Operations Manager. 3 Mr Bechara and Mr Williams reported directly to the State Manager, Mr Darren Sandford.

[16] Mr Wiggett joined Home Australia as the Chief Financial Officer (CFO) in June 2015. Prior to taking up the role of CFO, Mr Wiggett was part of a Deloitte consulting team appointed to assist Home Australia improve its business performance. Mr Wiggett dealt directly with Mr Sandford and his role with Deliotte was mostly the analysis of financial performance however, he was aware the construction arm of Ashford Homes “was an issue”. He says his analysis of Ashford Homes during the time he was consulting with Deloitte was not about the operational performance of individuals 4 however he did agree that he had formed the opinion that the construction arm of Ashford Homes was dragging the rest of the business down. It is obvious that the opinion Mr Wiggett had formed of the Ashford Homes construction arm influenced his later dealings with Mr Bechara.

[17] In December 2014, one of the Cconstruction Supervisors resigned from his position. Mr Bechara raised concerns with Mr Sandford regarding an increase in workload on a number of occasions and he expressed that he thought there was some urgency in the need to employ a replacement supervisor.

[18] On 17 February 2015, Mr Bechara and Mr Williams had a meeting in which Mr Bechara asserts Mr Williams told him Mr Sandford was not employing a new supervisor and that he was being demoted to the position of Construction Supervisor. Mr Williams submits that this was not the case and Mr Bechara was told he needed to take over some of the construction jobs until they employed a new Supervisor.

[19] Mr Bechara took on a number of the supervisors jobs whilst performing his day to day activities in both construction and maintenance. On 10 March 2015, he wrote to Mr Sandford raising concerns of the possible demotion, his workload and the job allocations. Mr Sandford replied advising that there was no demotion to Mr Bechara’s position resulting from the request to temporarily take over the supervision of some of the construction jobs until Ashford Homes employed a new Supervisor.

[20] In April 2015, Mr Bechara raised concerns regarding his workload and being excluded from the job allocation process. Not long after raising those concerns he received an email from Mr Sandford advising that things had changed since his commencement with Ashford Homes, that he would receive a new position description and that they could agree on each of his tasks for clarity moving forward.

[21] Upon receiving a follow up email on 19 June 2015 from Mr Sandford which sought a response to the position description sent to him on 29 May 2015, Mr Bechara sought external advice regarding the proposed changes to his role. After receiving advice from the Fair Work Ombudsman, Job Watch and the Commission, Mr Bechara sent correspondence to Mr Sandford stating he would not be signing the new position description as it contained terms he did not agree with. Mr Wiggett says from the period of June 2015 to the date of his dismissal, Mr Bechara refused to review, sign or even engage in discussions regarding changes to his role.

[22] Mr Wiggett submitted between the period of July to August 2015, he observed that Mr Bechara’s priorities were not in line with the business’ requirements. Mr Wiggett says he made a number of attempts to discuss this with Mr Bechara, along with other concerns regarding Mr Bechara’s role and responsibilities, however Mr Bechara had refused to engage in any discussions.

[23] On 5 August 2015, Mr Wiggett met with Mr Bechara to discuss two issues, one being an incident between Mr Bechara and another staff member, and the second being Mr Bechara’s performance. Mr Wiggett says as per previous attempts to discuss his role and responsibilities, Mr Bechara would not engage in any discussions.

[24] Mr Bechara says during the meeting on 5 August 2015, Mr Wiggett request that he resign from his role. Mr Bechara says as he refused to agree to changes to his role and as he had refused to resign as requested by Mr Wiggett, this was the beginning of a deliberate attempt to remove him from his employment. Mr Wiggett refutes the assertion that he requested Mr Bechara to resign during the meeting.

[25] On 16 September 2015. Mr Bechara received a “first and final” warning for the events that took place on 31 July 2015 and were discussed in the meeting on 5 August 2015.

[26] On 17 September 2015, Mr Bechara took personal leave and remained on personal leave until he was dismissed from his employment with Ashford Homes on 9 October 2015.

[27] On 30 September 2015, Mr Wiggett received an email from Mr Sandford advising him that Mr Bechara had made a General Protections Application to the Commission. Mr Wiggett received an email on 1 October 2015 from the Commission advising him of the General Protections Application. 5

[28] It is necessary to consider the evidence regarding the meeting of 17 February 2015 with Mr Williams, and the meeting of 5 August 2015 with Mr Wiggett as these events are of some importance in these proceedings. Indeed, it seems that the events that took place during those meetings appear to have been the catalyst for much of what later occurred.

The Evidence

Meeting 17 February 2015

[29] The following paragraphs summarise Mr Bechara’s evidence of email conversations between himself and Mr Sandford in support of his assertion that Mr Williams told him he was to take on the role of supervisor and that he believed “would be a demotion for me”. 6

[30] On 10 December 2015: Mr Sandford requested Mr Bechara take on some of the Supervisor (Mr Sekic’s) allocated jobs until they employed a replacement Supervisor. Mr Bechara says he agreed to take on three of the jobs although he was already doing a lot of travel with the maintenance issues and was assisting supervisors as well as conducting quality inspections and meeting with clients. Mr Bechara requested some urgency be placed on the recruitment of a new supervisor. 7 This was not disputed by either Mr Williams or Mr Wiggett.

[31] On 12 December 2015: Mr Sandford responded to Mr Bechara stating the construction jobs were the most important and if Mr Bechara can’t manage the maintenance in the short term he could allocate the work to others and manage it remotely. He advises Mr Bechara that “at times we all need to take on a bit more”. 8 Mr Sandford made the following statements in his email to Mr Bechara:

“Regardless of job titles we work to help everyone on the team, I would think with your experience that you can take on Brett’s round completely on a temporary basis”  9 and “it is pointless advertising for a replacement supervisor now as the building industry closes for a number of weeks”.10

[32] Mr Bechara and Mr Sandford continued to exchange emails in which Mr Bechara explains that he believes he has distributed the jobs effectively to ensure construction is efficient, and that his time would be better utilised in the office and focusing on construction and various other issues rather than spending four hours traveling between jobs. Mr Sandford responded requesting Mr Bechara take on the Supervisor jobs until they find a replacement which he expects to be in January 2015. 11

[33] Mr Bechara submits on 17 February 2015, during a phone conversation with Mr Williams, he was informed that Mr Sandford had no intention to replace the supervisor and Mr Bechara was to take up the role of supervisor. Mr Bechara says taking on the role of a supervisor would be a demotion. 12

[34] Mr Williams provided a written statement and gave oral evidence at the hearing that at no time did he advise Mr Bechara that he was to be demoted to the position of Supervisor. Mr Sandford was not called upon to provide evidence by Ashford Homes. Mr Williams did not dispute that he had spoken to Mr Bechara about the Supervisor role on 17 February 2015. Mr Williams says at no point did he advise Mr Bechara that Mr Sandford had no intention of employing another Supervisor. Mr Williams says prior to speaking to Mr Bechara he had spoken to Mr Sandford seeking clarification as to whether or not the Supervisor role would be replaced. He says Mr Sandford told him that they were not in a position to replace the Supervisor and that “George was to take over that role in the interim.” 13 Mr Williams says he passed this message on to Mr Bechara who reacted quite badly to the information.

[35] Mr Bechara did not dispute that he reacted badly. It is plausible that he took some offence to being told he would be assuming the Supervisor duties by Mr Williams and not Mr Sandford. 14 Mr Bechara says he had told Mr Williams that as he was not his boss, and as they were on the same reporting line, Mr Williams was not in a position to tell him that he was no longer going to be the Construction Manager. Mr Bechara gave evidence in cross examination that he had told Mr Williams that if it was Mr Sandford’s intention to demote him then Mr Sandford should contact him and tell him directly.

[36] Given the oral evidence of Mr Williams, I accept that it is plausible that Mr Bechara was told Mr Sandford was not employing a new Supervisor, and as such Mr Bechara would be required to take on some of those duties. Whether or not he was told if this was a temporary or permanent decision is disputed. I accept that when he was told that the Supervisor was not being replaced, Mr Bechara believed by taking on the duties of a Supervisor, this was, in part, lowering the status of his position and that he would subsequently see this as a demotion from his current role.

Bechara’s refusal to assume the full duties of the construction Managers role.

[37] Mr Wigget says he met with Mr Bechara on a number of occasions to discuss Mr Bechara’s role as Construction Manager. Mr Wiggett says on each occasion Mr Bechara refused to discuss his role and had refused to assume the full duties of the Construction Manager Role. Mr Wiggett and Mr Bechara each gave evidence with regards to the meeting in July, and on 5 August, 26 August and 14 September 2015.

June - July one on one Meeting

[38] Mr Wiggett says he met with Mr Bechara in a one on one meeting in July 2015 which he says lasted for two hours with Mr Bechara doing most of the talking. He says he advised Mr Bechara at that meeting that construction was not performing and Ashford Homes had lost a lot of money. 15 Mr Wiggett says he told Mr Bechara that “it can’t continue the way it is” and that they needed to “work together and really turn things around”.16 Mr Wiggett had formed the view that Ashford Homes’ financial troubles mostly related to the construction side of the business.

[39] Mr Bechara submitted written and oral evidence that on 25 June 2015 Mr Wiggett attended a construction meeting and following the meeting Mr Bechara and Mr Wiggett stayed back to discuss a number of Mr Bechara’s concerns. Mr Bechara says he told Mr Wiggett at the meeting that he was being overworked, undermined and bullied by Mr Sandford.

[40] Mr Bechara says Mr Wiggett requested to meet with him the next day in his office for a one on one meeting. Mr Bechara and Mr Wiggett provided differing accounts of the one on one meeting. However both parties submitted that Mr Bechara did most of the talking expressing a number of concerns. Mr Bechara says Mr Wiggett told him he was not a very good manager and suggested he resign from Ashford Homes and he would provide him with a good reference. Mr Wiggett says at no time during any discussion between July and August did he tell Mr Bechara that he needed to resign. He says he told Mr Bechara there needed to be changes made to the way things were being done as construction was not performing. 17

[41] Mr Wiggett’s recollection of the June and July one on one meetings was that Mr Bechara did not trust anyone at Ashford Homes and that he thought there was a conspiracy against him to push him out of the business. 18 Mr Wiggett says at no point during these meetings did he ask Mr Bechara to resign. Mr Wiggett says the only thing he said to Mr Bechara was “George, I realise all your issues. The key focus for me in joining the business is really to sort out, you know, the issues and work out construction.”19

Meeting 5 August 2015

[42] Mr Wiggett gave evidence that he met with Mr Bechara on 5 August 2015 and discussed two matters, the first being an altercation that had taken place between Mr Bechara and an admin staff member (Nicki) in which the staff member alleged Mr Bechara had yelled aggressively at her, and the second issue related to Mr Bechara’s performance. 20

[43] Mr Wiggett says Mr Bechara was offered a support person to which he declined. Mr Wiggett says he took Mr Bechara through the allegations at this meeting and that Mr Bechara disputed the events and alleged that Nicki was the aggressor in the situation. It was not disputed that Mr Bechara requested a copy of the witness statements which Mr Wiggett declined because he did not want to see any retribution to any of the employees and wanted them kept confidential. 21

[44] Mr Bechara says at the meeting he was not able to give his side of the story. He says Mr Wiggett handed him a written warning and asked him to sign. Mr Bechara says he requested that before he signed the warning and before Mr Wiggett made his findings on the matter, he review the security footage. 22 Mr Wiggett says he agreed to explore the video footage so he could “look at his (Mr Bechara’s) side of the story” and he informed Mr Bechara if all the employees say the same thing then it is very difficult for him to not issue a warning based on the information he had.

[45] Mr Wiggett says the second matter discussed at the meeting was how Mr Bechara was spending his time and how this aligned with Ashford’s priorities. He says this part of the meeting lasted for only four or five minutes as Mr Bechara refused to discuss his role with him. Mr Wiggett gave Mr Bechara a copy of the Construction Manager’s roles and responsibilities and asked him to look over it. He says he told Mr Bechara there was no need to sign but asked if he could tick off what he agreed with or cross out what he saw wasn’t his responsibility so he could identify the gaps and address them. 23

[46] Mr Bechara’s oral evidence about the events that took place in the second part of the meeting were somewhat inconsistent. I do accept that a discussion took place with regards to a position description and that the discussion was brief. However, it is evident the bulk of the meeting was spent on the conduct allegations against Mr Bechara.

Meeting 26 August 2015

[47] Mr Wiggett and Mr Bechara met again on 26 August 2015. Mr Bechara and Mr Wiggett once again provided different versions of what took place. Mr Wiggett says Mr Bechara refused to discuss anything to do with his role. Mr Bechara says Mr Wiggett asked him which of the options put to him at the 5 August 2015 meeting did he want to take up. Mr Bechara says he told Mr Wiggett that he had considered what had been put before him and he was the Construction Manager and not a Building Manager and that he would not be resigning from his role. Mr Bechara says he told Mr Wiggett he had received advice from the Commission and as his role had not changed, he would not sign a new document. 24 Mr Wiggett says he recalls that there may have been one conversation with Mr Bechara where he was told, based on the advice he had received, he can’t sign any documents.25 However he couldn’t recall if this was the meeting in which that occurred. Mr Wiggett says at no point in the discussion did he ask Mr Bechara to resign.

[48] Mr Wiggett agreed he had given Mr Bechara the position descriptions again during the meeting and says they had the same conversations as previous meetings. He says he discussed the need to focus on progress claims and that he again attempted to define what it was Mr Bechara does in his role. 26 Mr Wiggett says he just couldn’t work with Mr Bechara and at the end of August he came to the conclusion that Mr Bechara was not going to continue in his role.27 Mr Wiggett says Mr Bechara was clearly being an uncooperative employee and he had reached the conclusion it was not working. He says he couldn’t communicate with Mr Bechara clearly on exactly what he did on a day to day basis and what he needed.28

Meeting 14 September

[49] Mr Wiggett and Mr Bechara met again on 14 September 2015. Again, the versions of the events that took place during the meeting differ. Mr Wiggett says he was again unable to engage Mr Bechara in a discussion regarding his role. He says Mr Bechara became aggressive during the meeting and he advised Mr Bechara it was best that they find an amicable way to part ways. He says Mr Bechara immediately agreed to part ways if they paid him a full redundancy. Mr Wiggett said he told Mr Bechara the business could not afford a redundancy payout but he would give him reasonable notice so he could look for work elsewhere. Mr Wiggett says Mr Bechara became aggressive at this point of the discussion.

[50] Mr Bechara says during the meeting Mr Wiggett asked him to resign from his position. Mr Bechara produced contemporaneous notes of the meeting to that effect. 29 Mr Bechara says he told Mr Wiggett he would not resign and if they wanted to get rid of him they could make him redundant, and that they could contact Fair Work and find out the right way to get rid of him.30

[51] It is clear that during the meeting of 14 September 2015 Mr Wiggett engaged in discussions with Mr Bechara to explore Mr Bechara’s separation from Ashford Homes, be it amicable or not. Mr Wiggett gave evidence in cross examination that he had considered what a reasonable time would be for Mr Bechara to amicably separate from the business however as he had become aggressive in the meeting, they did not get to explore options. He also says he had evaluated what a redundancy would have cost Ashford Homes however because of cash flow constraints, redundancy was not an option. 31

[52] Mr Wiggett further submitted he had a number of discussions with Mr Bechara where he advised Mr Bechara that his priorities were incorrect and he “wanted to discuss his role and responsibilities with him.” 32 Mr Wiggett submits he advised Mr Bechara that he needed to spend less time on maintenance matters and put more effort in to progress claims as a priority.33 Mr Bechara says Mr Wiggett told him to ignore maintenance altogether, he says he requested Mr Wiggett put this in writing to him. Mr Wiggett says he never requested this of Mr Bechara.

[53] Mr Wiggett says Mr Bechara was either not willing to discuss his role or his day to day activities, was reluctant to assist supervisors as they should be responsible for their work and he was reluctant to delegate work as this would make him dispensable. However, no supporting evidence was submitted.

First and Final Warning

[54] On 15 September 2015, Mr Wiggett sent, by email to Mr Bechara, a first and final warning for the altercation that took place between Mr Bechara and Nicki on 31 July 2015.

[55] Mr Bechara submitted that the events that occurred did not warrant a first and final warning and that there was conflicting evidence on what had occurred. It was not disputed that Mr Bechara refused to take a telephone call at Nicki’s request and this led to an altercation. Mr Bechara submits that the warning was contrived to further pressure him into resigning.

[56] Mr Bechara gave oral evidence that he arrived in the office around 6:30am on 3 August 2015. He says he approached Mr Williams in the office to make a complaint regarding the altercation that took place on 31 July 2015 between himself and a direct report of Mr Williams, Nicki. Mr Bechara says he explained to Mr Williams that he had told Nicki he couldn’t take a call as he was busy and she should take a message. The evidence was that Mr Bechara was on his way to the use the bathroom. He says Nicki started to yell at him and was disrespectful of his wishes. 34

[57] Mr Williams says during the discussion on 3 August 2015 he told Mr Bechara he had obtained a statement from Nicki regarding the incident on 31 July 2015. 35 Mr Bechara provided a statement by email at 10:39am that day36 outlining his own version of what had occurred.37 Mr Bechara sent an email to that effect to Mr Williams.

Mr Williams’ Evidence

[58] Mr Williams says he spoke to other office staff and asked them to put what they heard or saw in writing, if they were present during the altercation. 38

[59] Mr Williams in cross examination was asked about the five statements relied upon to support Nicki’s version of events. Mr Williams was provided with a copy of a statement which he identified as Mr Morelli’s statement of events, a statement relied upon in the investigation into the altercation. 39 Mr Morelli’s statement was as follows:

“George came into the office, we spoke for quite a while discussing options for ROS40 job.

On his way to the toilet Nicki asked him to take a call, he said he is going to the toilet tell them I’m not here.

When he walked out of the toilet Nicki was on the phone to Shane [Mr Williams] telling him that George isn’t taking the phone call.

Nicki said to George you should’ve taken that call (or something along those lines)

George said its being taken care of.

Nicki was frustrated and was telling George about the calls and the situation.

I believe that’s when an argument started between the two of them.” 40

[60] Mr Williams gave oral evidence that Mr Morelli and Mr Bechara are quite good friends and although he was not suggesting Mr Morelli gave a false account of the events, rather that Mr Morelli would not be offended by Mr Bechara’s demeanour. Mr Williams says he asked Mr Morelli if he could put into writing whether he thought Mr Bechara had been loud or threatening. Mr Williams says Mr Morelli told him he could see how Nicki felt that way 41 and he asked him to put this in writing. When he received Mr Morelli’s statement he replied to the email because “it was slightly different to what he had said to me verbally”.42

Mr Williams says in his reply email he questioned Mr Morelli saying “You stated George [Mr Bechara] had got angry and had yelled. Was that the case?”. Mr Williams says Mr Morelli replied something along the lines of “I could see how Nicki would have felt threatened”. Mr Williams says he then forward all the evidence to Mr Wiggett.

Mr Wiggett’s Evidence

[61] Mr Wiggett says he had received an email and a call from Mr Williams informing him of an altercation that had occurred in the office on Friday 31 July 2015 between Mr Bechara and Nicki and that Nicki had made a complaint to Mr Williams stating that she felt threatened during the altercation. Mr Williams says he received the complaint from his direct report by email on the Friday afternoon after the altercation.

[62] Mr Wiggett’s evidence conflicted with Mr Williams in that Mr Wiggett says it was he who had asked all staff that were in the office to provide him with written statements. 43 Mr Wiggett says he obtained email statements from five employees and then a statement from Mr Bechara.

[63] Mr Wiggett says that the witness statements supported Nicki’s allegation that Mr Bechara had continued to yell at Nicki for two to five minutes, standing over her and the majority of employees reported they could see Nicki felt threatened during the altercation.

[64] Mr Wiggett says he formed the view that the incident was serious enough to warrant a first and final warning. Mr Wiggett says the delay in issuing the warning was as a direct result of attempting to obtain the security footage Mr Bechara had requested, which he was unable to obtain as the cameras were not recording.

The dismissal

[65] On 17 September 2015, Mr Bechara attended a medical appointment and was issued with a medical certificate stating he was not fit for normal work duties until 18 September 2015. Mr Bechara attended three more medical appointments between 21 September 2015 and 5 October 2015 and each time he was issued with further medical certificates deeming him unfit for normal work duties, up to and including 9 October 2015. Mr Bechara provided copies of his medical certificates to Ashford Homes. Mr Wiggett says he had received each of the medical certificates.

[66] On 29 September 2015 whilst Mr Bechara was absent from the workplace due to illness, Mr Wiggett sent a letter requesting a response to a number of concerns relating to Mr Bechara’s performance and conduct. He requested Mr Bechara attend either a face to face meeting or provide a written response by 2 October 2015.

[67] In the absence of any response from Mr Bechara, on 9 October 2015 Mr Wiggett sent another letter to Mr Bechara, whilst he was still on personal leave, terminating his employment with Ashford Homes effective that day. Mr Bechara was paid in lieu of notice.

[68] Mr Wiggett’s letter concludes by stating:

“It is clear you have chosen not to respond to these issues. As I stated in my correspondence of 28 September I have no choice but to determine the outcome of this process based only on the facts that are currently available to me. As I mentioned in the earlier correspondence it is my view that in the absence of any further information I believe your ongoing employment with Ashford has become untenable”.

Consideration

Protection from Unfair Dismissal

[69] An order for reinstatement or compensation may only be issued where I am satisfied Mr Bechara was protected from unfair dismissal at the time of the dismissal.

[70] Section 382 of the Act sets out the circumstances that must exist for Mr Bechara to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[71] There is no dispute, and I am satisfied that Mr Bechara has completed the minimum employment period. Mr Bechara’s annual rate of earnings was subject to a jurisdictional objection and the matter was heard by Deputy President Gooley. Deputy President Gooley’s decision dated 23 December 2015 found that Mr Bechara’s annual rate of earnings was less than the high income threshold at the time of his dismissal. 44 I am therefore satisfied Mr Bechara was protected from unfair dismissal.

[72] Section 396 of the Act requires me to decide four specified matters before the merits of the application may be considered.

s.396(a) Whether the application was made within the period required in sections 394(2)

[73] Mr Bechara’s employment was terminated on 9 October 2015 and his unfair dismissal application was received by the Commission on 12 October 2015. As such, I am satisfied that Mr Bechara made his application within the required 21 day period in s.394(2) of the FW Act.

s.396(b) Whether the person was protected from unfair dismissal

[74] As outlined in paragraph [71] above, I am satisfied Mr Bechara was protected from unfair dismissal. This is not in dispute.

s.396(c) Whether the dismissal was consistent with the Small Business Fair Dismissal Code

[75] At the time of the dismissal, Ashford Homes had more than 35 employees. Therefore, I am satisfied that the Small Business Fair Dismissal Code does not apply.

s.396(d) Whether the dismissal was a case of genuine redundancy

[76] It is not disputed and I find that this is not a case of genuine redundancy.

[77] I will now consider if the dismissal of Mr Bechara by Ashford Homes was unfair within the meaning of the Act.

Was the dismissal unfair?

[78] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

Was the applicant dismissed?

[79] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purpose of Part 3-2 of the Act. Section 386 of the Act provides:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

… “

[80] As outlined above, on 9 October 2015, Ashford Homes terminated Mr Bechara’s employment (s.385(a) of the FW Act).

[81] No issue was raised in relation to ss.385(c) and (d) of the Act and I reiterate my findings at paragraphs [75] – [76] above.

Harsh, Unjust Unreasonable

[82] Having been satisfied of each of the matters prescribed by s.385(a), (c) and (d) of the Act, I now must consider whether Mr Bechara’s dismissal was harsh, unjust or unreasonable.

[83] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[84] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd. 45 McHugh and Gummow JJ explained as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 46

[85] I will now consider each of the matters set out in s.387 of the Act.

Was there a Valid Reason for the dismissal- s.387(a)

[86] The reasons provided by Ashford Homes for dismissing Mr Bechara was his refusal to discuss changes to his role, his refusal assume the full duties of his Construction Manager role and his lack of trust of anyone at Ashford Homes which impeded his ability to properly resolve and discuss issues as a Construction Manager. It is evident given the conversation that took place between Mr Williams and Mr Bechara in February 2016 that Mr Bechara had become suspicious about the intentions of both Mr Williams and Mr Sandford.

[87] I accept that Mr Bechara had been requested to, and had albeit reluctantly, temporarily assumed some Supervisor duties whilst performing his Construction Management role. I am satisfied that the chain of events that followed, including Mr Wiggetts engagement with Ashford Homes, the financial constraints on the business, and the review of Mr Bechara’s role, contributed to Mr Bechara’s belief that he was either going to be demoted in his role or removed altogether. After considering Mr Wiggett’s evidence, it is clear that he had formed an earlier view that the “construction arm of Ashford Homes was dragging the business down” and the views he later expressed being that “he just couldn’t work with Mr Bechara”. In my opinion Mr Bechara had good reason for his suspicions.

[88] Mr Wiggett relied upon the evidence that he had attempted to discuss Mr Bechara’s role and responsibilities with him in a number of formal meetings. The first being a one on one meeting in early July 2015 and the second on 5 August 2015 where Mr Wiggett discussed an employee complaint and advised Mr Bechara he was going to receive a warning as a result. The third meeting took place on 26 August 2015 in which Mr Wiggett says he tried once again to discuss Mr Bechara’s role and responsibilities and again provided him with a position description which Mr Bechara refused to discuss.

[89] I accept at each of these meetings Mr Wiggett attempted to engage Mr Bechara in discussions regarding his role and responsibilities. However, it is evident Mr Bechara was never provided with prior notification as to the intent of each meeting and there were no file notes or performance discussion records submitted as part of these proceedings.

[90] In the first one on one meeting it is clear that Mr Bechara confided in Mr Wiggett raising a number of concerns relating to Mr Sandford and Mr Williams. In my view as Mr Wiggett had already formed a view of Mr Bechara, he failed to act on or address any of Mr Bechara’s concerns.

[91] When it came to discussing Mr Bechara’s role and responsibilities in the meeting on 5 August 2015, it is understandable that Mr Bechara would have already been upset given the matters discussed earlier. In my view, it is basic human resource practice that the discussions relating to the complaint and Mr Bechara’s position description and role responsibilities should have taken place in two separate meetings. Further, in my opinion it was reasonable in the circumstances that Mr Bechara did not engage in discussions relating to his role and responsibilities in the 5 August 2015 meeting as he was preoccupied with the pending threat made by Mr Wiggett of a formal warning.

[92] With respect to the meeting on 26 August 2015, I accept Mr Wiggett’s evidence that he attempted once again to discuss Mr Bechara’s role and responsibilities and that he had made an attempt to define what it was that Mr Bechara does in his role. I also accept that Mr Bechara had informed Mr Wiggett that he had sought advice from various sources and he would not be agreeing to any variation in his role. I am of the view that this was the catalyst for the events that followed. This was evidenced by Mr Wiggett’s statement that he had come to the realisation that “he just couldn’t work with Mr Bechara”.

[93] I am satisfied that Mr Bechara’s conduct did amount to a refusal to participate in discussions about the proposed changes to his role and responsibilities. However, the refusal is unsurprising given the background to the discussions. I am satisfied that Mr Bechara provided reasons for why he had refused to engage in discussions in that he was already employed as a Construction Manager and he had received advice that Ashford Homes could not unilaterally change his conditions of employment. In my view, these reasons were only satisfactory in part. It is my opinion that Ashford Homes did not take up the opportunity to adequately address those reasons with Mr Bechara other than to say that he was not required to sign a contract.

[94] Mr Bechara’s General Protections Application would have provided a reasonable opportunity to address the concerns of the parties, however Ashford Homes chose to terminate Mr Bechara’s employment and the General Protections Application did not proceed.

[95] I am not satisfied that Mr Bechara did not assume the full duties of his role, as he understood them to be. I accept that Mr Bechara’s focus may not have been aligned with the changing business needs of Ashford Homes however it is clear from the evidence Mr Bechara was performing construction, supervisory and maintenance duties within his role. It is also clear from the evidence that at no time did Mr Wiggett engage Mr Bechara in a formal process where Mr Bechara was informed the sole reason for meeting with him was to discuss his alleged failure to assume the full duties of his role.

[96] I find there was not a valid reason for the dismissal of Mr Bechara.

Notification of the Valid Reason –s.387(b)

[97] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was notified of the reason. 47 Procedural fairness requires that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment.48 The notification of the valid reason must be in explicit, plain and clear terms.49

[98] Mr Bechara accepts that he was notified of the reasons for termination in the letter of termination. Ashford Homes also points to this evidence. I am satisfied that Mr Bechara was notified of the reasons for his termination in the letter of termination dated 9 October 2015.

Opportunity to Respond –s.387(c)

[99] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. 50 An employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made.51 This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.52 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of this section.53

[100] Mr Bechara submitted his dismissal was procedurally unfair on the basis that it was decided upon in the absence of a detailed response to the reasons for dismissal of his employment set out in the letter of 29 September 2015. Mr Bechara pointed to the fact that Ashford Homes chose to terminate his employment whilst he was absent from work on personal leave due to being ill, rather than waiting until he had recovered to attend a proposed meeting. However, Ashford Homes submitted that the evidence establishes that Mr Wiggett gave Mr Bechara until 2 October 2015 to provide a response, and that Mr Bechara was aware of that fact. Mr Wiggett says Mr Bechara chose to ignore that fact and this does not of itself mean that Mr Bechara was not given an opportunity to respond.

[101] Mr Bechara was sent the letter dated 29 September 2015 whilst on a period of personal leave. Mr Bechara provided Ashford Homes with copies of the medical certificates detailing that he would be unfit for work until 9 October 2015. Mr Bechara was asked to provide a response within this period of personal leave. I consider that common sense dictates that Ashford Homes ought to have ensured that Mr Bechara had the capacity to properly respond to the matters in the 29 September 2015 letter and as such I do not consider that Ashford Homes provided Mr Bechara a full opportunity to respond to their concerns. On this basis, I find Mr Bechara was not given an opportunity to respond to the reason for the dismissal.

Unreasonable Refusal of a Support Person – s.387(d)

[102] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. 54 With respect to this consideration, the Explanatory Memorandum states:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them. 55

[103] Mr Bechara did not request a support person, and there were no discussions following his receipt of the 29 September 2015 letter or the 9 October 2015 letter when Mr Bechara was dismissed from his employment at Ashford Homes. Therefore, I consider this a neutral consideration.

Warnings regarding Unsatisfactory Performance – s.387 (e)

[104] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal. 56 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.57 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.58

[105] There was no evidence submitted by either party that prior to the letter of 29 September 2015 Mr Bechara had been given any warnings for unsatisfactory performance or any warnings that unsatisfactory performance would lead to a subsequent dismissal.

[106] Mr Bechara received a first and final warning on 15 September 2015 for the altercation that took place on 31 July 2015. In considering the evidence before me, it is my view that the circumstances did not warrant a first and final warning.

[107] I do not accept that Mr Bechara was provided with any formal notice or any real opportunity to respond in any meaningful way to Mr Wiggett’s concerns that he was not assuming the full duties of the Construction Manager’s role.

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)

[108] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. 59 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.60

[109] Ashford Homes had access to a professional Human Resource Consultancy. Mr Wiggett gave evidence that the consultancy provided advice to the business in the absence of an internal function.

[110] There was no evidence advanced by Ashford Homes of a formal performance plan or that formal performance reviews had been put in place to assist Ashford Homes in managing or communicating their expectations to Mr Bechara. In my view, Ashford Homes took a clumsy approach in dealing with their concerns relating to Mr Bechara’s performance and their expectation of him.

Other Relevant Matters – s.387(h)

[111] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any other matters that the Commission considers relevant. 61

[112] Ashford Homes submitted concerns regarding Mr Bechara’s misuse of the company fuel card which came to light during the jurisdictional hearing. I do not consider that this gives significant weight in the circumstances of the dismissal as it was information that was obtained after the dismissal took place. However, I will consider the submission when deciding remedy.

Finding

[113] I find that the dismissal of Mr Bechara was harsh, unjust or unreasonable and his termination of employment was unfair.

Remedy

[114]
Based on the evidence and submissions provided in proceedings, I am unable to come to a concluded view about what remedy is appropriate. Both parties are accordingly directed to provide further written submissions dealing with these considerations. Directions on the filing of submissions dealing with remedy will be issued to the parties following this decision.

COMMISSIONER

Appearances:

Mr M Addison, solicitor for the Applicant.

Mr N Wareham, Paid Agent for the Respondent.

Hearing details:

2016.

Melbourne:

March 7, 8.

 1   Warrell v Walton [2013] FCA 291.

 2   Ibid.

 3   Transcript PN2096, PN2100.

 4   Transcript PN1282.

 5   Exhibits R7, attachments JW1, and JW2.

 6   Exhibit A2, paragraph 7.

 7   Exhibit A2,attachment GB4.

 8   Exhibit A2, attachment GB4.

 9   Exhibit A2, attachment GB4.

 10   Exhibit A2, attachment GB4.

 11   Exhibit A2, attachment GB4.

 12   Exhibit A2, paragraph 7.

 13   Transcript PN 2082.

 14   Transcript PN120.

 15   Transcript PN1183.

 16   Transcript PN1183.

 17   Transcript PN1183.

 18   Exhibit R7, paragraph 3.

 19   Transcript PN1183.

 20   Exhibit R7, paragraph 9.

 21   Transcript PN1194.

 22   Transcript PN354.

 23   Transcript PN1196.

 24   Transcript PN383.

 25   Transcript PN1614.

 26   Transcript PN1198.

 27   Transcript PN1461.

 28   Transcript PN1457

 29   Exhibit A2 at attachment GB23.

 30   Transcript PN402 to PN416.

 31   Transcript PN1748.

 32   Exhibit R7.

 33   Transcript PN1186.

 34   Transcript PN137.

 35   Exhibit R8.

 36   Exhibit A2 at attachment GB16.

 37   Transcript PN137.

 38   Transcript PN2090.

 39   Exhibit A6 and Transcript PN2300 to PN2308.

 40   Exhibit A6.

 41   Transcript PN2306.

 42   Transcript PN2343.

 43   Transcript PN1190.

 44   Bechara v Ashford Homes Pty Ltd T/A Ashford Homes[2015] FWC 8858.

 45 (1995) 185 CLR 410.

 46   Ibid at 465.

 47   Fair Work Act 2009 (Cth) s.387(b).

 48   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151: Gooch v Proware Pty Ltd T/A TSM (The Service Manager)[2012] FWA 10626.

 49   Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730.

 50   Fair Work Act s.387(c).

 51   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 52   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ)

 53   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

 54   Fair Work Act 2009 (Cth) s.387(d).

 55   Explanatory Memorandum, Fair Work Bill 2009 (Cth) [ 1542].

 56   Fair Work Act (Cth) s.387(e).

 57   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

 58   Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].

 59   Fair Work Act (Cth) s.387(f).

 60   Fair Work Act (Cth) s.387(g).

 61   Fair Work Act (Cth) s.387(h).

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