Glenn Howie v The Royal Society for the Prevention of Cruelty to Animals T/A RSPCA-ACT

[2014] FWC 2771

[2014] FWC 2771

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glenn Howie
v
The Royal Society for the Prevention of Cruelty to Animals T/A RSPCA-ACT
(U2013/15617)

COMMISSIONER DEEGAN CANBERRA, 30 APRIL 2014

Application for relief from unfair dismissal.

[1] On 6 November 2013 Glenn Howie, (the applicant) lodged an application claiming that he had been unfairly dismissed by the Royal Society for the Prevention of Cruelty to Animals trading as RSPCA ACT (the respondent). A conciliation of the matter was unsuccessful and, following the filing of witness statements and submissions, it proceeded to hearing.

Background

[2] At the time of his dismissal the applicant was employed as Executive Manager, Animal Welfare with the respondent. His employment began in December 2010 when he held the position of manager of clinic services. The respondent is a not for profit organisation that is overseen by an elected Council.

[3] It is not disputed that, around late August early September 2013, the applicant provided his union with documents relating to his workplace and also provided a journalist from a local paper with information about the workplace and the then Chief Executive Officer (CEO) .

[4] On 19 September 2013 the applicant was suspended on full pay, and he was provided with a letter setting out a number of allegations against him and informed that an investigation was to be conducted into the allegations’

[5] The letter 1 contained the following allegations:

● That the applicant provided an industrial officer employed by United Voice with a range of documents which he knew to be confidential to RSPCA ACT, which ultimately formed the basis of a newspaper article which caused damage to the reputation of the RSPCA ACT and its CEO;
● That he made allegations of misconduct about the CEO to a journalist , with the intention that those allegations be published in a newspaper article which would be critical of the RSPCA ACT and the CEO; and
● He acted with aggression and disrespect towards the CEO in the presence of several other employees in a meeting on 5 September 2013.

[6] The letter also contained an allegation that, on 12 September 2013, the applicant had given an assurance to members of the Council of the respondent that he would assist in every way he could to minimise the stress on staff and that he had subsequently falsely informed a member of his staff that the CEO had been suspended from duty.

[7] A further letter 2, provided to the applicant by the employer on 23 September 2013, was headed ‘Serious Misconduct’ and contained additional detail of the allegations which were to be investigated. The letter also invited the applicant to provide a response to the allegations by 2 October 2013. A response by the applicant3 was provided to the respondent on 2 October 2013.

[8] On 5 October 2013 the applicant lodged a claim 4 under the relevant workers compensation legislation claiming “Stress (workplace related) including bullying”.

[9] On 18 October 2013 the Acting CEO of the respondent, Mr George Costi met with the applicant at a cafe. At that meeting Mr Costi handed the applicant a letter 5 terminating his employment.

Applicant’s Case

[10] The applicant’s case was summarised by his representative in an opening statement 6. The applicant claimed that his dismissal was unfair for a number of reasons. He asserted that the documents he had provided to his union were not confidential as those documents related to occupational health and safety and were available to all employees of the organisation. In the alternative it was the applicant’s case that, if the documents were confidential, the breach of confidentiality was justified by the circumstances, the threat to the safety of staff and was otherwise in the public interest. The documents were released to the appropriate authorities for investigation and to the press. It was claimed that this was one of the rare cases where release to the press was justified. Further the applicant claimed that he was not the only staff member who spoke to the journalist concerning the conduct of the CEO. Finally it was the applicant’s claim that the employer was aware that he suffered from stress and anxiety, had denied him support in meetings about his dismissal and had terminated his employment in a publicly humiliating way.

[11] The applicant lodged a statement of evidence 7, gave additional oral evidence at the hearing and was cross-examined.

[12] It was the applicant’s evidence that he had released material relating to a decision that had been taken to pump concrete slurry into rabbit warrens at the respondent’s workplace to his union. He had also discussed this decision with a journalist who had been given his contact details by the union. His evidence in relation to these matters included:

● It was the former CEO’s decision to pump concrete into the warrens while he (the applicant) held grave reservations about it and believed it might be a breach of the Animal Welfare Act
● He did not believe the warrens presented a health and safety risk to staff;
● He was concerned the decision could have repercussions for him and could damage the RSPCA’s reputation;
● He contacted the union industrial officer about his concerns because of the concerns the applicant had for the rabbits, he preferred poisoning or gassing as an option;
● The union officer had raised concerns about breaches of the Animal Welfare Act and had recommended contacting the relevant government department as the RSPCA could not investigate itself.

[13] The applicant claimed that he was not aware that providing his union with minutes of the workplace health and safety committee meetings concerning the rabbit problem was a breach of confidentiality as he did not consider the documents, which were widely available to employees, were confidential. He learned later that the union provided the documents to the media. It was the applicant’s evidence that the documents were released to the media to put ‘external pressure’ on the relevant government department to conduct an investigation. It was considered that the former CEO was close to the chief investigators from that department and that no investigation would result without such outside pressure. It was the applicant’s evidence that officers from the government department inspected the warrens on 11 September 2013. He spoke to the investigators on that occasion.

[14] The applicant admitted that he had provided the journalist with copies of emails he had sent to members of the Council complaining about the then CEO. The emails were dated 10 and 11 September. He further agreed that he had accused the CEO of lying about the circumstances surrounding the concreting of the rabbit warrens. Further, the applicant admitted having several conversations with the journalist regarding the CEO, the rabbit warrens and the CEOs treatment of junior staff. He claimed that he took these steps because he had no faith in the Board’s willingness to deal with the complaints about the CEO. He claimed to have been, since March 2013, shielding junior staff from the CEO. He stated that “I had persistently attempted to raise it with Council but I was too scared, as we all were, of the consequences about speaking out about the behaviour and attitude of Michael”. 8 He claimed the Council were aware of the conduct but had not acted and he decided that ‘we needed a circuit breaker’.9

[15] The applicant made a number of allegations about the conduct of the former CEO. In essence these were that the CEO did not treat some staff properly. It was the applicant’s evidence that this conduct commenced about December 2012 and was continuing as at 5 September 2013, the date he first spoke with Council members about it. He stated that he had raised the matters in writing with Council members prior to that date. He described in detail an exchange that occurred at a staff meeting on 5 September 2013, which he considered was indicative of the CEO’s behaviour. This was the meeting that was referred to in the allegations of serious misconduct. The applicant claimed to have spoken to the CEO in a ‘direct manner’ because he was defending a junior member of staff Belinda Gibbs, against the CEOs aggressive questioning.’ 10

[16] The applicant denied 11, the allegation made against him against him, that he had told a member of staff (Sarah McIntosh) that the CEO had been suspended.

[17] In his oral evidence the applicant stated that he had complained about the CEO to Council Members Louise Douglas, Sue Gage and Katie Chambers in early September 2013 and while he had not complained to any Council members at any earlier time, he was aware other staff had complained and that no action had been taken.

[18] The applicant agreed that he had chaired the Work Health and Safety Committee (WH&S committee), or had been a member of that committee, during the 18 month period the matter of the rabbit warrens had been a topic of discussion in that committee. He noted that the maintenance and security officer had handled arrangements for the concreting. He claimed that he had been the senior manager with oversight of the operation under direction of (the CEO) 12.

[19] So far as the circumstances of the termination of his employment were concerned the applicant claimed that he had been taken aback by comments made by Mr Costi at the time he handed him the letter of termination. He also stated that he was not expecting to be dismissed at that meeting and believed he would be invited back to work given that the CEO had left the respondent.

[20] Under cross-examination the applicant agreed that the issue of the rabbit warrens had been discussed for a long period of time in the WH&S committee and that he had chaired the committee until sometime in 2013. He conceded that the former CEO was not a member of that committee. He was taken to the minutes of various WH&S committee meetings and acknowledged that these reflected that ‘the issue [of the rabbit warrens] is ongoing and becoming increasingly urgent as the rabbit population multiplies and the risk of injury to staff and the public increases from warren holes and unstable ground’ 13. He also agreed that the minutes reflected that poison had been rejected as an option out of concern for other wildlife that might eat the poisoned rabbits. Further the applicant conceded that Ms Gibbs had investigated the matter of using concrete slurry in the warrens through her husband who worked for a concreting company. Finally the applicant agreed that the minutes disclosed that the committee discussed the matter for a number of meetings and then took the decision to proceed with the concrete slurry option.

[21] Ms Belinda Gibbs was called to give evidence on the applicant’s behalf. Ms Gibbs filed a statement of evidence 14 stating that she had been employed as Director of the Cattery from March 2011 until October 2013 and after that time in the Wildlife area. Ms Gibb’s evidence concerned the treatment of her, and of other staff, by the former CEO. She stated that she first met with Council members about the CEO’s conduct on 5 September 2013. On 8 September she provided the Council with a written chronology of events detailing her complaints. She claimed to have suffered from depression which was exacerbated by the CEO’s treatment of her and his conduct in the workplace.

[22] Ms Gibbs agreed with the applicant’s evidence that staff were never instructed that the minutes of the WH&S committee were confidential. According to Ms Gibbs concreting the warrens was initially proposed as a solution to the structural problems but became a solution to both the rabbit problem and the structural problem at the instigation of the CEO.

[23] It was also Ms Gibb’s evidence that the applicant had been a fairly calm, tolerant and easy-going person until 2013 when he became tense, began taking sick leave and was unhappy. She attributed this to the CEOs behaviour.

[24] Under cross-examination Ms Gibbs agreed that the applicant had said to her that the former CEO had been suspended. She stated that this was mentioned in the context of a discussion about the CEO’s absence from the workplace in September, about a week before the CEO had been due to travel to the United States.

[25] By consent a report prepared by Dr Peter Cole (the applicant’s general practitioner) was tendered in evidence without the need for the doctor to appear for cross-examination. The report, dated 23 October 2013, gave the doctor’s assessment of the applicant’s medical condition at, and leading up to that date. The report was ‘tendered for the purpose of demonstrating or going to the issue of the harshness of the method through which the termination was communicated to the applicant’ 15 and it was agreed that it was not be used as evidence of any other matter.

Employer’s case

[26] Ms Louise Douglas, the President of the Council filed a statement of evidence 16 noting the role of the employer as a charitable institution for the welfare of animals. Ms Douglas was treasurer of the Council at the time of the applicant’s dismissal, and commenced her term as President in late November 2013.

[27] It was the evidence of Ms Douglas that the former President Ms Gage had, on 20 August 2013, received an email from the applicant requesting a meeting with the Council to discuss ‘several serious issues ….at the RSPCA and [the CEOs] general behaviour towards staff including myself”. The email requested confidentiality. Ms Gage responded the same day indicting that the request would be raised with Council and two days later indicating that a meeting would take place after the next Council meeting scheduled for 28 August. On 5 September 2013, a date chosen by the applicant, Ms Douglas and another Council member met with the applicant and two other staff members. At the meeting Ms Douglas indicted that the Council was following the RSPCA grievance policy and needed more specific information so as to progress an investigation. At the meeting general complaints were made by all three staff members about other employees and the CEO.

[28] On 10 September Ms Gage received an email from the applicant concerning a report in a local newspaper about the concreting of the warrens at the respondent’s premises. The email accused the CEO of lying to the press and stated that ‘For the sake of the RSPCA and it’s (sic) reputation you must stand him down.’

[29] When asked what was meant by his claim that the CEO had lied, the applicant had responded that he had emails and that there had been conversations with managers which showed that the information given to the press by the CEO was not true and that options, other than the concrete slurry, had been available but had been dismissed by the CEO.

[30] On 10 September 2013 the CEO had informed Ms Gage that the union been provided, by staff of the RSPCA, with ‘a raft of selective documents’ including WH&S committee minutes, concerning the concrete slurrying of the rabbit warrens. The union had given the documents to the journalist, who wrote the article in the newspaper, and to the relevant government department, requesting an investigation into the matter.

[31] A further article about the warrens appeared in the newspaper on 11 September. In an email to Ms Gage on 11 September the applicant repeated his claims and again requested that the CEO be stood down. Ms Gage replied indicating that all the applicant’s emails had been forwarded to the Council Members.

[32] On 12 September Ms Gage sent an email to the applicant indicating that Council would meet soon to consider the complaints made at the meeting on 5 September and it may ask the applicant to make a formal complaint to substantiate his claims. The email ended with the words ‘Council asks you to continue to honour your commitment to confidentiality in regard to the meeting’. The applicant responded the same day stating that ‘(w)e will continue to honour our commitment to confidentiality regarding the meeting with Council’.

[33] On 13 September Ms Gage and Ms Douglas met with the applicant and his union representative at a local café. According to Ms Douglas the purpose of the meeting was to update the applicant about Council’s handling of his complaint and to remind him of his obligations as a senior manager. Ms Douglas made a written summary of the meeting, which was attached to her statement 17. At the meeting the Council’s procedure for dealing with the complaints was outlined and it was noted that an investigator had been engaged. Ms Douglas had referred to the articles in the press and noted that it was regrettable that staff had felt the need to go to the press when an investigation was under way. Concern was noted for the effect the negative publicity was having on staff and it was stated that it was one thing for staff to express their concerns to the press if they felt they had nowhere else to go but it was another matter for ‘confidential internal document to be circulated to external parties’18. The applicant was requested to provide as much assistance as possible in settling staff and he had assured Ms Gage and Ms Douglas that he was doing this on a daily basis.

[34] On 17 September Ms Douglas received a telephone call and an email from the CEO stating that the applicant was making comments to other employees claiming the CEO had been suspended and that the applicant had been meeting with Council and lawyers. Ms Douglas telephoned the applicant and requested that, as a senior manager, he concentrate on ‘business as usual’ and refrain from discussing the current difficulties with staff. The applicant responded that he understood his professional obligations and had been getting on with his job.

[35] On 19 September the CEO had informed Ms Douglas that he had spoken to the journalist who had written the articles about the rabbit warrens and had learned that the journalist had corresponded with the applicant by email and telephone, and that the applicant had made complaints about the CEO to the journalist and had called for the CEO to be stood down.

[36] On the same day Council held a teleconference and decide to put the allegations to the applicant and immediately suspend him from duty. The CEO, who is not a member of Council, was not involved in these deliberations. The applicant was suspended from duty, given detailed information of the allegations against him and invited him to respond. Once the applicant’s response had been received Council had met to discuss the matter and determined that the applicant had engaged in serious misconduct which had destroyed all trust the Council had in his capacity to act in the RSPCA’s best interests. It was determined that the applicant would be summarily dismissed. The acting CEO, Mr Costi was requested to inform the applicant of the dismissal and hand him the letter of termination.

[37] Under cross-examination Ms Douglas agreed that, in the meeting held with the applicant and his union representative on 13 September, she had advised the applicant that there could be serious consequences if he made divisive comments in the workplace but noted that the meeting was held for the purpose of updating the applicant on Council’s handling of his complaints.

[38] Ms Douglas conceded that the applicant did not have a support person with him when, on 19 September, he was handed the letter suspending him and asked to leave the workplace.

[39] It was the evidence of Ms Douglas that it was appropriate for the Council to deal with the applicant’s complaints given that they involved the CEO and, therefore, it was not appropriate for the CEO to handle them.

[40] Ms Douglas conceded that she knew that the applicant had lodged a worker’s compensation claim at some time after his suspension but before his dismissal, and that the claim related to stress.

[41] It was the opinion of Ms Douglas that the letter containing the allegations against the applicant had made it clear that, if those allegations were found to be true, his employment would be terminated.

[42] Ms Douglas agreed that by 13 September a number of employees had made written complaints that had been forwarded to the Council and that there was a degree of conflict in the workplace. She stated that, at that time, only the applicant had had the opportunity to sit down with members of the Council and discuss his complaints. She also agreed that at the time the applicant was suspended there were concerns about his conduct in the workplace but noted that that was not the case at the time the discussions with him had commenced.

[43] According to Ms Douglas the former CEO resigned with effect from 15 November 2013 but his intention to resign was announced prior to the applicant’s dismissal. She did not believe that the applicant would have considered he would be able to return to work as a result to the CEO’s resignation.

[44] It was the evidence of Ms Douglas that, at no point after the suspension and before the termination, did the applicant raise with Council that he was suffering from stress or anxiety or request, on such a ground, an alteration to the process for providing his response.

[45] George Costi, acting CEO of the employer at the time of the dismissal, provided a written statement of evidence 19. Mr Costi is currently the Queensland operations manager for the RSPCA. He had met the applicant on a number of occasions over the time that both he and the applicant had been employed by the RSPCA. Following discussions with Council he had arranged to meet the applicant at a café on 18 October 2013 and had handed the applicant the letter of termination. The applicant had read the letter and said words to the effect that he would challenge the decision. Mr Costi had offered the applicant some advice drawing on his own experience of being made redundant at some earlier time. He had advised the applicant to be careful what he did as ‘Canberra is a very small place’. They then shook hands and left the café.

[46] Under cross-examination Mr Costi advised that he had been invited to Canberra to relieve the CEO who was going overseas on a five week trip. He had been aware of the media articles before he took up his acting position. He was unaware of the matter concerning the applicant until he arrived in Canberra and was advised by some staff members. He was aware of the applicant’s worker’s compensation claim as he had been interviewed by the investigator. He did not recall the actual details of the claim but knew it was not for a physical injury.

[47] Mr Costi was unable to recall whose idea it had been to have the meeting with the applicant at a café. He agreed that it was probably decided upon after consultation with the Council but at his instigation. As he was new to Canberra he had suggested to the applicant that they meet at a café but believed the applicant had chosen the actual café. He agreed that a termination meeting is serious, but believed that the café was the best option and that the workplace would not have been appropriate.

[48] The witness denied that he advised the applicant not to challenge the decision to dismiss him but stated that he had offered him advice based on his own experience the effect upon him of challenging a decision to make him redundant.

[49] The respondent’s final witness was Sarah McIntosh, Practice Manager for the respondent since 2012. According to her written statement of evidence 20 the applicant had been Ms McIntosh’s direct supervisor. It was her evidence that on 10 September 2013 the applicant had informed her about a concern he had about who the next President of the Council would be and that, if the person he believed became the President, the CEO would be protected from losing his job. Ms McIntosh had been unaware that there was a vacancy for the President position. It was also her evidence that in general conversation a few days before 10 September the applicant had informed her that there was a good possibility of the CEO ‘going’.

[50] According to her evidence, on 17 September Ms McIntosh was in her office and was approached by the applicant who asked where the CEO was. When she replied that she didn’t know, the applicant had informed her that the CEO had been suspended by Council and was being investigated. The applicant also advised her that he knew this because he had met with Council, lawyers and the union on the Friday. The applicant had also told Ms McIntosh that he was going to inform staff that the CEO had been suspended as, if it had been any other staff member, the process would have been to notify staff of the suspension. It was her evidence that he then appeared to contradict himself by saying that, if the CEO hadn’t been suspended then he, (the applicant) would be pushed out. According to the witness she informed Ms Hartley (a manger with the respondent) about this conversation by email 21 the same day.

[51] Ms McIntosh took issue with a claim made in the applicant’s statement that she is a ‘very vulnerable person’. She also denied claims that she was unstable or unreliable and that her evidence contained in her statement or in the emails written by her at the relevant times is untruthful.

[52] Under cross-examination Ms McIntosh agreed that she had worked at the respondent from about 2003 until she resigned in 2010. She then recommenced employment in 2012. At the time of her resignation the applicant had not been working for the respondent. Ms McIntosh resigned because she was suffering from compassion fatigue and had some personal issues. She conceded that she had been subjected to one instance of bullying which contributed to her decision to resign. She agreed that, on occasion, when she had become frustrated in conversations with one of the staff involved in the earlier bullying incident, the applicant had intervened to stop the conversation. She also agreed that the applicant had supported her in this way.

[53] Ms McIntosh stated that she was frustrated with the way things were at the time of her conversations with the applicant and the ‘mutiny between senior management’ but disagreed that there had been a ‘sort of organisational breakdown’. She stated that she was aware of the tension and what might occur. When asked her opinion of the conduct of the applicant and his followers Ms McIntosh responded that she felt it was ‘inappropriate ... at work’ 22. When it was put to her that the applicant had not made the statement about the likelihood of a new President, Ms McIntosh denied this. She stated, however, that she believed the applicant was just standing up for his friends in doing what he did.

Submissions

[54] The applicant had filed written submissions and an opening statement was made on his behalf. When the evidence was completed, the applicant’s representative noted that the case foreshadowed was not the case that unfolded for the applicant. It was put that it was common ground that the applicant engaged in some sort of misconduct. It was also submitted that the applicant had suffered anxiety and stress and that this was observable to those around him by mid-2013.

[55] It was the applicant’s case that he had sought to strike a balance between the interests of his employer and those of his subordinate staff. The situation deteriorated and he engaged in misconduct. His reason for doing so was to ‘prompt’ the employer to hold the CEO to account. It was denied that the applicant’s misconduct was for some malevolent reason. It was submitted that the applicant’s actions were a product of his desire to stop unreasonable behaviour in the workplace.

[56] It was the submission put for the applicant that minds might differ as to whether his actions were right or wrong but that the question that was the purpose of these proceedings was whether the applicant was entitled to dignity in the manner of his termination. According to his representative, the fact that the applicant was handed his notice of termination in a public place, surrounded by strangers, rendered the dismissal harsh. The harshness of the manner of termination was compounded by the applicant’s mental state. It was put that the employer was aware at the time of termination that the applicant suffered from stress and anxiety, and that this should have been taken into account. Finally, it was submitted that the applicant was dismissed without the presence of a support person, adding to the harshness of the mode of dismissal.

[57] The respondent’s submissions concentrated on those matters set out in s.387 of the Act and noted the three reasons for the dismissal: the release of confidential information to the union, the making of allegations of misconduct to a journalist and statements intended to disparage the CEO.

[58] The respondent dismissed the applicant’s claims that the release of the confidential documents was justified in the circumstances. It was put that neither the original reason for releasing the documents contained in the applicant’s witness statement (the concern for the rabbits and the legality of the process adopted for the eradication) nor the reason given in oral evidence (a desire to prompt the Council to deal with the CEO) were, given the evidence, justification for the applicant’s actions. It was contended that the evidence showed that the issue of the rabbit warrens was ‘manufactured’ to put pressure on the Council about the CEO, and that this could not justify the conduct as, at the time the documents were leaked to the union and to the press, the Council had both undertaken to investigate the complaints made by the applicant and commenced that process.

[59] It was argued for the respondent that the applicant took the action he did because he wanted the Council to deal with the CEO in a faster, less ‘fair’ manner. His wilful and deliberate actions were clearly inconsistent with his employment obligations as a senior manager and amounted to serious misconduct. His failure to keep the allegations he had made about the CEO, and the fact of the Council process, confidential compounded the seriousness of his misconduct.

[60] The respondent disputed that the applicant had ever unreasonably been denied the presence of a support person in discussions relating to the termination. It was submitted that the applicant had been notified of the reasons for his termination, been given every opportunity to respond to those reasons and had been assisted by his union in his response. Moreover, the respondent did not admit that the applicant suffered stress and anxiety but accepted that a workers’ compensation claim in relation to such matters had been made by the applicant. It was noted that neither the workers compensation claim nor the applicant’s mental state was raised with the Council in the context of the applicant’s response to the allegations. It was also relevant that the medical report prepared by Dr Cole was dated 22 October 2013 while the termination took effect on 18 October 2013.

[61] The respondent made no claim for special consideration on the basis of its size or lack of human resource management expertise, but noted its status as a charitable organisation.

Consideration

[62] Section 387 of the Act provides:

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.

[63] I am satisfied that there was a valid reason for the applicant’s dismissal. The allegation that he deliberately provided confidential documents, the property of his employer, to his union and to a journalist is not disputed. I am satisfied that the documents were, in fact, confidential, but note that this argument does not seem to have been pursued by the applicant. While the applicant denied having made disparaging comments about the CEO to Ms McIntosh, I prefer the evidence given by Ms McIntosh to that of the applicant in this regard. Ms McIntosh reported the applicant’s comments soon after they were made. There is no reason for Ms McIntosh to have fabricated the conversation. Her evidence was clear and it was apparent that she held no animosity towards the applicant believing him to have altruistic motives for much of his behaviour.

[64] I do not accept the applicant’s claim that his misconduct in providing confidential documents to his union and to the journalist was justified in the circumstances. The applicant had made no complaint about the behaviour of the CEO until late August 2013. The Council acted immediately after his complaints were made known to them. On all the evidence it is not open to the applicant to claim that he was forced to take the action he took through some reluctance on the Council’s part to respond to his concerns.

[65] The applicant’s claimed motives for bringing the matter of the rabbit warrens to the attention of his union, and with his full knowledge, the press, are also questionable. The applicant’s attempt to make it appear that the slurrying of the rabbit warrens was solely the responsibility of the CEO was, and is, reprehensible. It is clear that the problem with the rabbit warrens was discussed by the WH&S committee over a very long period. By the time the decision to put concrete into the warrens was taken, the need for a solution to the problem was becoming urgent. The minutes of the WH&S committee meetings make it clear that the entire committee was involved in the decision to proceed with the concreting of the warrens. The applicant’s evidence was directed at laying full responsibility for the decision with the CEO, who he claimed overrode the views of WH&S committee members. The minutes taken of the committee’s deliberations do not support this claim. The exchanges of emails surrounding the issue make it clear that the applicant was fully involved in the decision to proceed to put the slurry in the warrens, and indeed that ‘the group’ made the decision to proceed after the applicant and the maintenance supervisor had conversations with the concreting contractor 23. I do not accept that the applicant was so concerned about the rabbits or the ‘reputation’ of the RSPCA that he believed he had no option but to go to the union, and through them to the press. These concerns are not apparent from the minutes of the WH&S meetings, and his decision to leak the documents contributed to, rather than saved, the respondent from reputational harm.

[66] I am satisfied that the applicant’s motive for providing confidential documents to the union and the journalist were part of a deliberate attempt by him to undermine the position of the CEO.

[67] The applicant betrayed the trust of the Council members who sought, and were assured of, his commitment to confidentiality. Importantly, while assuring the Council that he was doing all in his power to bring calm to the workplace he was actively fomenting dissent and continuing his bid to undermine the CEO. The applicant’s disclosure of confidential information that had an adverse effect on the reputation of his employer and his overt attempts to undermine the position of the CEO, his direct supervisor, is behaviour that clearly establishes a valid reason for termination.

[68] The applicant was notified of the reasons for his termination. At the time his employment was suspended he was informed that there would be an investigation in to serious allegations about his conduct. These allegations were set out in greater detail in the letter of 23 September 2013. The comprehensive letter of termination 24 confirmed the reasons for the dismissal.

[69] The applicant was given sufficient opportunity to respond to all the allegations made against him. He provided, through his union, a detailed written response 25 which was duly considered by the Council.

[70] I do not accept that the dismissal was rendered unfair by the failure to ensure that the applicant had a support person with him on the occasion he was suspended from his employment, or at the time he was handed termination letter. On neither occasion was there any discussion which played a material part in the decision to terminate the applicant. In any event it was not contended that there was a refusal by the respondent to allow the applicant 26 a support person, only a failure by the respondent to ensure that the applicant had a support person present.

[71] I accept the respondent’s submissions that neither the size of the organisation or any lack of human resources expertise impacted on the procedures adopted in effecting the dismissal.

[72] In considering this matter I have taken into account that the applicant was a senior manager of the respondent. I have also taken into account that his actions were motivated by his personal feelings about the CEO and, I accept, to a lesser extent by his concern for other employees. Importantly, those actions were taken in spite of the assurances, given by him to Council, that his complaints would be investigated. It is unlikely that the relationship of trust between the Council and the applicant could ever be restored, given that his misconduct occurred at the very time the Council had commenced investigating his concerns and in the face of his repeated assurances that he would maintain confidentiality and assist to calm the concerns in the workplace. Such duplicitous conduct is not justified by any concerns the applicant may have had for the welfare of junior staff.

Conclusion

[73] Given my findings in relation to those matters set out in s.387 of the Act I am satisfied that the applicant’s dismissal was not harsh, unjust or unreasonable. As the dismissal was not unfair, the application is dismissed.

Appearances:

Mr Russell-Uren, from United Voice, for the Applicant.

Ms Sweet, from King & Wood Mallesons, for the Respondent

Hearing details:

2014.

Canberra:

March 14.

 1   Exhibit H1 Annexure 2

 2   Exhibit H1 Annexure 3

 3   Exhibit R1 ‘LD 14’

 4   Exhibit H1 Annexure 4

 5   Exhibit R1 ‘LD17’

 6   Transcript PN 28 - 38

 7   Exhibit H1

 8   Exhibit H1 Paragraph 41

 9   Exhibit H1 Paragraph 42

 10   Exhibit H1 Paragraph 57

 11   Transcript PN 85

 12   Transcript PN 74

 13   Transcript PN 135

 14   Exhibit H2

 15   Transcript PN 10

 16   Exhibit R1

 17   Exhibit R1 ‘LD9’

 18   Exhibit R1’LD9’

 19   Exhibit R2

 20   Exhibit R3

 21   Exhibit R3 ‘SM2’

 22   Transcript PN 870

 23   Exhibit R1 ‘LD5” Email of 9 September from Steve Laros

 24   Exhibit R1 ‘LD17’

 25   Exhibit R1’LD14’

 26 See s.387(d) of the FW Act

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