George Moskou v Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology
[2015] FWC 8608
•15 DECEMBER 2015
| [2015] FWC 8608 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
George Moskou
v
Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology
(U2015/9631)
COMMISSIONER CRIBB | MELBOURNE, 15 DECEMBER 2015 |
Application for relief from unfair dismissal.
[1] This decision concerns an application by Mr George Moskou (the Applicant), under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in respect of his dismissal by Specialist Diagnostic Services Pty Ltd trading as Dorevitch Pathology (the company, the Respondent).
[2] The application was not settled at the conciliation conference and so went to arbitration on Wednesday 7 October 2015. At the hearing, Mr Moskou was represented by Mr G. Dircks, consultant whilst the company was represented by Mr A. McNab, of counsel. Mr Moskou gave evidence and for the company, Mr N Giannopoulos, Courier Manager; Ms A Sorlie, Marketing Liaison Officer and Ms R Bracko, Human Resources Officer.
1. Legislative requirements
[3] Section 387 of the Act sets out the requirements for determining whether or not the dismissal was harsh, unjust or unreasonable. It is as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal 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.”
[4] I will deal with each of the requirements in turn.
(a) Section 387 (a) – valid reason
[5] Mr Moskou was summarily dismissed on Monday 13 July 2015 for misconduct. 1 This followed a meeting held on 13 July 2015 to discuss an alleged incident that had occurred on 5 July 2015. The nature of the incident was set out in a letter to Mr Moskou from the company, dated Thursday 9 July 2015. The allegation contained in the letter was that Mr Moskou had attended at the medical clinic at 224 Springvale Road Glen Waverley and that he had defecated in the car park and had left faecal matter and soiled toilet paper all over the car park.2
[6] In the Respondent’s Outline of Submissions, it was stated that Mr Moskou was dismissed because he had defecated on a client’s premises and then failed to clean up/or make a serious attempt to clean up; he had failed to notify his employer so that remedial action could be taken and that he was not frank when the issue was raised with him. 3 The company submitted that all of these reasons constituted valid reasons for Mr Moskou’s dismissal.4
[7] On the other hand, it was contended, on behalf of Mr Moskou, that there was not a valid reason for his summary dismissal and that Mr Moskou’s dismissal was disproportionate to the gravity of the conduct. 5 Mr Dircks argued that Mr Moskou had attempted to clean up at the clinic and had tried to contact his immediate supervisor Derek. The contention that Mr Moskou had been less than frank with the company was refuted on the basis that Mr Moskou had not denied that the incident had occurred.6 It was further stated that, during the hearing, the company had put forward additional reasons for Mr Moskou’s dismissal, namely, that Mr Moskou had not been frank with the company. It was said that this had not been put to Mr Moskou during the meeting on 13 July 2015.7
(i) Defecated in the car park of the medical clinic
[8] It was not disputed that Mr Moskou had defecated in the car park of the medical clinic in question on 5 July 2015. The only direct evidence about what had happened, before either the company or the Commission, came from Mr Moskou. The company was advised on Monday 6 July 2015 by the medical clinic that faecal matter and soiled toilet paper and tissues had been found in the car park. When Ms Sorlie had visited the medical clinic, the doctor could only show her where the detritus had been as the faecal matter and toilet paper had been cleaned up by the time she had arrived. Ms Sorlie was shown footage from the medical clinic’s CCTV camera but it did not show Mr Moskou defecating.
[9] As part of his evidence, Mr Moskou provided a letter from Dr Cenap, dated 11 July 2015, which stated that Mr Moskou had gastroenteritis on 5 July 2015 and that Mr Moskou could not wait to find a public toilet whilst working. 8 The company disagreed that Mr Moskou had no other option but to defecate in the client’s car park. It did not accept the medical evidence that was provided by Mr Moskou at the time of his dismissal. This was on the grounds that the medical evidence referred to “medical condition” and not to gastroenteritis which was Mr Moskou’s reason for having to defecate at the medical clinic.9
[10] On the basis of the material before me, I accept that, on the night of Sunday 5 July 2015, when Mr Moskou was at the medical clinic in question, he had an urgent need to defecate that he could not control. There is no evidence before me that Mr Moskou had wilfully used the medical clinic’s car park as a toilet. Rather, Mr Moskou appeared to still be embarrassed and uncomfortable when giving evidence about what had happened, some 3 months after the incident occurred. I accept the contention made on behalf of the Applicant, 10 that no normal person would choose to do what Mr Moskou did, if there was either no need or if there was another viable option (i.e. a public toilet). Therefore, I find that Mr Moskou had no other option, other than to defecate in the medical clinic’s car park, as he had an urgent need to defecate.
(ii) Failure to clean up
[11] One of the reasons for Mr Moskou’s dismissal, which was said to be a valid reason by the company, was that Mr Moskou had failed to make a serious attempt to clean up after he had defecated in the client’s car park. The company did not accept that Mr Moskou had been unable to find a plastic bag in which to put the soiled toilet paper or that he had been unable to obtain water in order to clean away the faeces. The company pointed to the location of a number of shops and a service station which would have enabled Mr Moskou to obtain what he needed to clean up the car park.
[12] It was contended, on behalf of Mr Moskou, that he had tried to clean up in the dark and that he had attempted to throw away the rubbish. It was acknowledged that it was not a very elegant solution to the situation but it was argued to not be completely unreasonable. The Applicant stated that it was not indicative of misconduct. 11
[13] Mr Moskou’s evidence in relation to this issue was that:
● during the day of 5 July 2015, he had been feeling unwell. 12
● as he was walking back to the car after checking the night box at the clinic in question, he needed to defecate desperately. He said that he had no choice. 13
● he had gone around the corner of the medical clinic to a dark section of the car park. 14
● he had tried to clean it up as much as he could with tissues from his vehicle. He had also called his partner to bring some toilet paper, which she did. 15
● he had defecated on the gravel/asphalt and the stools were not solid. He had thrown the tissues into the garden bed and washed his hands under a tap. 16
● he had left the soiled tissues and toilet paper on the ground and a few probably in the garden bed. 17
● he had left the soiled toilet paper on the clinic’s premises in an open area for someone else to pick up. He had not gone and got a plastic bag and put the soiled toilet paper in the bag. 18
● he should have picked up the soiled toilet paper and he could have washed down the area. 19 It was just an accident. He had no idea who was going to clean up his mess.20
[14] On behalf of the company, it was Ms Bracko’s evidence that:
● she was sure that what Mr Moskou had done was not deliberate. 21
● there were other options available to Mr Moskou e.g. McDonald’s. 22
● Mr Moskou should have cleaned up the mess. 23
(iii) Failure to notify the company
[15] The company further submitted that Mr Moskou had failed to bring the incident to the attention of the business and that this also constituted a valid reason for his dismissal. It was contended that Mr Moskou’s failure to advise the company had denied it the opportunity to clean up the mess, rather than the client having to do this. It was stated that it was Mr Moskou’s responsibility to have notified the company and that he should have made a greater effort to ensure that he did this, rather than the company ringing him up to ask him about what had happened.
[16] On the other hand, it was argued by the Applicant that he had tried to contact his immediate supervisor Derek but that there had been no answer and the number had rung out. Mr Moskou’s lack of clarity of thought in not making a further attempt to contact Derek was said to have been an error of judgement rather than serious misconduct. 24
[17] It was Mr Moskou’s evidence that:
● he had tried to ring Derek but there was no answer and the number rang out. 25
● when he dropped off the samples he had collected at Banksia Street around 11pm, there was no one at dispatch to report the incident to. 26
● he did not call Mr Giannopoulos, the Courier Manager, on the Sunday night. Mr Giannopoulos had called him on the Monday. 27
● Mr Giannopoulos had asked him if he had left anything behind during his run on Sunday night and he had thought Mr Giannopoulos was talking about blood samples and so he said no. Mr Giannopoulos had responded by saying that he was not talking about that. He (Mr Moskou) had then said that he had had an accident and that he was quite embarrassed about it. 28
● he had told Mr Giannopoulos what had happened prior to Mr Giannopoulos telling him that there was CCTV footage of the event. 29
● he could have rung the company earlier but he did not get a chance to. Nothing was stopping him from ringing Mr Giannopoulos but that, before his decided to ring, Mr Giannopoulos rang him first. 30
[18] It was Mr Giannopoulos’ evidence that:
● the usual practice was for a courier to ring either himself or Derek if there was a problem. He disagreed that the normal step was to ring Derek and then himself, if Derek was unavailable. 31
● if one of either himself or Derek was not available, the couriers would try the other one. 32 The couriers are required to ring either Derek or himself but they can decide who they call first.33
● Mr Moskou could have reported the incident to collection control at Banksia Street - who manage the couriers at that time on a Sunday night. 34 This was the one spot in the laboratory that is manned 24 hours a day.35
● he had telephoned Mr Moskou during the afternoon of Monday 6 July 2015 . Mr Moskou had rung him back around 6:30pm. 36
● he had asked Mr Moskou if anything unusual had happened last night and then, if he had left anything behind at the medical clinic in question? 37 He had then told Mr Moskou that there was a CCTV camera at the medical clinic and that he was going to ask him again if he had left anything behind at the medical clinic. Mr Moskou had then owned up and told him what had happened.38
● Mr Moskou also might have said that he was quite embarrassed by what had happened. 39
● Mr Moskou had not owned up until after he had been told that there was a CCTV camera. 40
● he confirmed that Mr Moskou had said that he would have gone to McDonald’s if he could have. 41
[19] Ms Bracko gave evidence that:
● Mr Moskou could have made more of an attempt, after he had defecated, to contact the business. He had further options the following day to make contact. 42
● it was expected that a staff member would contact the business to notify them of an issue instead of the client notifying the business. 43
(iv) Was not frank when the issue was raised
[20] The final reason for Mr Moskou’s dismissal was that Mr Moskou had not been frank when the issue had been raised with him by Mr Giannopoulos. It was Mr Giannopoulos’ evidence that Mr Moskou did not tell him about what had happened until after he had advised Mr Moskou that there was CCTV footage. This was denied by Mr Moskou. Further, it was noted by the Applicant that this was not a reason for his dismissal that was put to Mr Moskou at the conclusion of the meeting on 13 July 2015.
[21] Having considered the evidence before me, on balance, it is probable that Mr Moskou needed to be prompted in order for him to tell Mr Giannopoulos what had happened at the medical clinic. I am of the view that this was not out of dishonesty on Mr Moskou’s part but because Mr Moskou was very embarrassed about what had happened and therefore needed a nudge for him to be open about it.
(v) Considerations and conclusions
[22] Having considered all of the evidence before me, I have formed the view that there was not a valid reason for Mr Moskou's summary dismissal but that there was a valid reason for dismissal with notice.
[23] Regulation 1.07 of the Fair Work Act 2009 defines the meaning of serious misconduct as including "wilful or deliberate behaviour that was inconsistent with the continuation of the contract of employment". I do not accept the company's contention that Mr Moskou's conduct was "wilful or deliberate". As set out above in paragraph 14, it is accepted that Mr Moskou defecating in the medical clinic's car park was the result of an urgent need to do so which Mr Moskou was unable to control. Therefore, I have not been persuaded that Mr Moskou's conduct was "wilful or deliberate" with the result that his actions on 5 July 2015 amounted to misconduct rather than serious misconduct. It is noted that the company's letter of dismissal stated that the dismissal was for misconduct.
[24] However, it is my view that Mr Moskou should have made more of an effort to have cleaned up the mess he left. An accident as it was but, to have left a mess in one of the company’s client’s car park, was a serious error. It must have been very unpleasant for the staff of the clinic to have come to work the next morning and found faecal matter and soiled tissues and toilet paper in the car park. Someone from the clinic then had to clean the mess up. This situation was compounded by Mr Moskou’s failure to advise his employer of the accident so that the company could take steps to alert the client and for the company to be able to clean up the mess rather than the client. For the client to have been the one to advise the company of Mr Moskou’s actions is unacceptable.
[25] It is acknowledged that Mr Moskou was very embarrassed about what had happened. This is understandable but it does not absolve him from responsibility to either have cleaned the mess up properly and/or to have told his employer about what had happened so that the company could take remedial action. The other issue that needs to be taken into account is the particular nature of what Mr Moskou had done. It would be a different situation if Mr Moskou had, for example, accidentally backed into the clinic building in his car but had not told his employer about it. Leaving faeces and soiled tissues and toilet paper is a public health risk as well as being unacceptable behaviour from a societal point of view. In addition, this all occurred at one of the company’s client’s premises when Mr Moskou was performing his work duties as a driver/collector.
[26] It is accepted that Mr Moskou called Derek on the Sunday night in an attempt to advise him about what had occurred. However, there is no evidence that Mr Moskou made any other attempt to let the company know what had happened. Rather it was the company (Mr Giannopoulos) who rang Mr Moskou and asked him about his Sunday night run. Because Mr Moskou had not told the company about what had happened, prior to the medical clinic’s staff discovery of the detritus, the company was therefore put on the back foot in trying to deal with the situation that Mr Moskou had created. It was Mr Moskou’s responsibility, with some urgency given the nature of what had happened, to advise the company about it. Only trying to reach Derek on one occasion before being called by the company on the following afternoon, is unacceptable behaviour.
[27] Putting all of this together, I am not satisfied that there was a valid reason for Mr Moskou’s summary dismissal on the grounds that the conduct was misconduct rather than serious misconduct. However, I find that there was a valid reason for a dismissal with notice, on the basis of Mr Moskou’s misconduct.
(b) Section 387 (b) – notified of the reason
[28] Mr Moskou was sent a letter from the company, dated 9 July 2015, which set out the allegations regarding what had taken place on 5 July 2015. A meeting was held with Mr Moskou to discuss the allegations on 13 July 2015. At the conclusion of the meeting, Mr Moskou was told that he was dismissed on the grounds that the company was not notified of the incident; that he had not cleaned up the mess; that he had other options e.g. McDonald’s and that the incident has damaged the reputation of the business so that the clinic was considering whether to not use Dorevitch Pathology as a result of the incident. 44 A letter was sent to Mr Moskou on 13 July 2015 which confirmed his summary dismissal for misconduct.
[29] On the basis of the material before me, I find that Mr Moskou was notified of the reasons for his dismissal.
(c) Section 387(c) - opportunity to respond
[30] There was a meeting held with Mr Moskou on 13 July 2015 to discuss the allegations and to get his response. Although there are slightly different accounts of the meeting, I am satisfied that Mr Moskou was given an opportunity to respond.
(d) Section 387(d) – support person
[31] On the basis of the evidence before me, I find that there was no refusal to allow a support person.
(e) Section 387(e) - unsatisfactory performance
[32] This subsection is not applicable in this matter.
(f) Sections 387(f) and (g) - size of the employer and dedicated HR expertise
[33] The company is a large employer and has dedicated Human Resources. HR was involved in the process and the decision to dismiss Mr Moskou.
(g) Section 387(h) – any other matters
[34] It was submitted, on behalf of Mr Moskou, that his employer did not treat Mr Moskou in a good inconsiderate manner. This was on the basis that the company had had no regard for Mr Moskou’s personal circumstances and had treated him in an uncaring manner. 45
[35] Further, it was argued that account had not been taken of Mr Moskou’s competent work history. The dismissal was also said to be harsh on Mr Moskou due to the economic and personal consequences of being dismissed. Finally, Mr Moskou also submitted that the dismissal was harsh because it was disproportionate to the gravity of the conduct. 46
2. Conclusions
[36] In all the circumstances of this matter, and having taken account of each of the factors set out in section 387 of the Act, on balance, I find that Mr Moskou’s summary dismissal was harsh. This is on the basis that, although the misconduct was serious, it was not serious misconduct and the misconduct was not so serious as to warrant dismissal without notice. There was a valid reason for the dismissal and the process was procedurally fair. However, summary dismissal in these circumstances was harsh and disproportionate. What was appropriate was dismissal with notice.
[37] As a consequence, I consider that Mr Moskou’s summary dismissal was unfair for the purposes of section 385 of the Act.
Remedy
[38] Section 390 provides that the Commission may order a remedy and that the Commission must not order payment of compensation unless the Commission is satisfied that reinstatement is inappropriate. On behalf of the Applicant, reinstatement was sought. 47 The company’s view was that reinstatement is not appropriate due to a breakdown in the company’s confidence and trust about the employment relationship.48 I have carefully considered the issue of reinstatement and I find, in all of the particular circumstances of this matter, that reinstatement is inappropriate.
[39] In terms of compensation in lieu of reinstatement, the Commission is required to have regard to the requirements of section 392 and 393 of the Act. I have had regard to these factors. In all of the circumstances, I have decided to make an order that Mr Moskou be paid compensation of one weeks’ pay in lieu of notice.
[40] An order 49 to this effect will be issued separately.
Appearances:
G. Dircks for the Applicant
A. McNab for the Respondent
Hearing details:
2015.
Melbourne:
7 October
Final written submissions:
Applicant, 31 August 2015
Respondent, 21 September 2015
1 Exhibit R6 at Attachment RB7.
2 Exhibit R6 at attachment RB 2.
3 Exhibit R2 at paragraph 1; Transcript PN 1592 and 1595.
4 Exhibit R2 at paragraph 1.
5 Exhibit A1 at paragraph 32; Transcript PN 1577.
6 Transcript PN 1549 – 1567 and 1570 – 1575.
7 Transcript PN 1570 – 1575.
8 Exhibit A2 at Attachment GM 5.
9 Transcript PN 40.
10 Transcript PN 1546.
11 Transcript PN 1565 – 1567.
12 Transcript PN 92; Exhibit A2 at paragraph 17.
13 Transcript PN 89, 92, 241, 245, 265 and 556; Exhibit A2 at paragraph 19.
14 Transcript PN 41 – 45, 541 and 557; Exhibit A2 at paragraph 20.
15 Transcript PN 47, 92 – 102, 260 – 261, 305, 572 – 573 and 596 – 601; Exhibit A2 at paragraph 21.
16 Exhibit A2 at paragraphs 20 – 23; Transcript PN 557, 561 – 562, 624 – 626 and 613.
17 Transcript PN 677 – 681.
18 Transcript PN 285 – 289, 317, 306 and 334 – 335.
19 Transcript PN 295, 336 – 338, 557 and 615.
20 Transcript PN 290 – 294, 315, 317, 340 – 341 and 639.
21 Transcript PN 1246 – 1247 and 1251.
22 Transcript PN 1229 and 1243.
23 Transcript PN 1259 and 1407.
24 Transcript PN 1560 – 1561.
25 Transcript PN 627 – 628 and 653; Exhibit A2 at paragraphs 24 – 25.
26 Transcript PN 655; Exhibit A2 at paragraphs 28 – 29.
27 Transcript PN 629-630 and 656-657; Exhibit A2 at paragraph 32.
28 Transcript PN 631, 643 and 658.
29 Transcript PN 644 – 645.
30 Transcript PN 659 – 662.
31 Transcript PN 952 – 953.
32 Transcript PN 954.
33 Transcript PN 955.
34 Transcript PN 957 – 962.
35 Transcript PN 966.
36 Transcript PN 974 – 975.
37 Transcript PN 976 – 977 and 993.
38 Transcript PN 978 – 988; Exhibit R5 at paragraph 12.
39 Transcript PN 986 and 995.
40 Transcript PN 992.
41 Transcript PN 996 – 998.
42 Transcript PN 1253, 1260 and 1407; Exhibit R6 at paragraph 18.
43 Transcript PN 1410 – 1412.
44 Exhibit R6 at attachment RB3.
45 Exhibit A1 at paragraphs 44 – 47.
46 Ibid at paragraphs 49 – 50.
47 Exhibit A1 at paragraph 53.
48 Exhibit R2 at paragraph 19.
49 PR575007.
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