Jake Egerton v Australian Laboratory Services Pty Ltd T/A ALS - [2014] FWC 5994

[2014] FWC 5994

FAIR WORK COMMISSION

DECISION

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

Jake Egerton
v
Australian Laboratory Services Pty Ltd T/A ALS
(U2014/4214)

DEPUTY PRESIDENT SAMS

SYDNEY, 1 SEPTEMBER 2014

Application for relief from unfair dismissal - numerous warnings for poor performance and conduct - refusal to acknowledge behaviour and conduct - no issues of procedural unfairness - dismissal not ‘harsh, unreasonable or unjust - application dismissed.

[1] This decision will determine an application, filed by Mr Jake Egerton (the ‘applicant’), under the unfair dismissal provisions (Chapter 3, Part 3-2) of the Fair Work Act 2009 (the ‘Act’). The applicant had been employed as a Laboratory Assistant by Australian Laboratory Services Pty Ltd t/as ALS (the ‘respondent’) from 20 August 2007 until his dismissal on 16 January 2014. At the time of his dismissal, the applicant was employed pursuant to the terms of the Australian Laboratory Services Pty Ltd Enterprise Agreement [AE891021] on an annual salary of $45,487.

[2] The application for an unfair dismissal remedy was filed on 3 February 2014 and was subject to a telephone conciliation on 20 March 2014. As the conciliation proved unsuccessful, the application was allocated to me for hearing in Brisbane. At the hearing, the applicant was granted permission to be represented by Mr R Harding, Solicitor (s 596 of the Act) and Mr D Van de Hoef appeared for the respondent.

[3] The applicant was dismissed on 16 January 2014 following the investigation of the following complaint against him:

‘It is alleged that you falsely accused three employees of talking about you behind your back, specifically targeting one employee on numerous occasions over the course of the morning on Friday, 3 January 2014, accusing her and two others on several separate occasions of gossiping about you behind your back.’

[4] However, there was a considerable body of relevant history which the respondent relied on when dismissing the applicant. The letter of termination records as follows:

‘This letter confirms the discussion held with you on 16 January 2014 with Laura Lonie, Senior Human Resources Advisor and Chris Heselwood, Acting Laboratory Manager in relation to your termination of employment.

You were issued warnings on 13 January 2012, 27 January 2012, counseled on 7 March 2012, issued a written warning on 25 November 2013 and a final written warning on 6 December 2013 relating to your conduct and performance and the adverse effects this is having on business operations.

During these discussions you were advised in escalating terms that unless your conduct and performance improved to a satisfactory level, your employment may be terminated.

Your continued inability to behave in an appropriate manner at work and perform to the level required of someone in your position with your extensive experience is no longer acceptable. Consequently the decision has been taken to terminate your employment.

You will receive payment of any accrued entitlements and ordinary hours up to the date of your termination. In addition you will receive a payment of four (4) weeks’ pay in lieu of notice. A pay advice will be issued separately.’

[5] It will be seen that this is not a case of dismissal for serious misconduct (the applicant was paid four weeks in lieu of notice), but was the culmination of a number of issues relevant to the applicant’s conduct and performance. These were all explored and discussed during the proceeding. At this juncture, I note that there are no jurisdictional impediments to this application proceeding to arbitration. Specifically, the applicant is a person protected from unfair dismissal in that:

a) he was dismissed at the initiative of the employer (ss 385(a), 386);

b) he was a national system employee and the respondent is a national system employer (ss 380, 13, 14);

c) an enterprise agreement applies to the applicant’s employment (s 382(b)(ii);

d) the application for a remedy from unfair dismissal was filed within the 21 day increase (s 396(a), 394(2));

e) the applicant’s income was not above the high income threshold (s 382(b)(iii);

f) the applicant’s employment met the minimum employment period (6½ years) (ss 382(a), 383);

g) the respondent is not a small business as defined (1,500 employees) and not subject to the Small Business Fair Dismissal Code (ss 396(c), 388);

h) the applicant’s dismissal was not a case of genuine redundancy (ss 396(d), 389).

THE EVIDENCE

[6] The following persons gave written and/or oral evidence in the proceeding:

The applicant;

Ms Zayela Ortiz, Laboratory Technician, appearing under summons;

Ms Carolina Londono, Laboratory Technician, appearing under summons;

Ms Yun Kang, Laboratory Technician, appearing under summons; and

Mr Chris Heselwood, Senior Diagnostician, appearing under summons.

Mr Stuart Bigham, Group Laboratory Supervisor; and

Ms Laura Lonie, Senior HR Advisor.

The applicant

[7] In his written statement, the applicant identified a final warning letter he received from Ms Lonie on 6 December 2013. It referred to a number of complaints concerning false allegations made by him in relation to discriminatory and poor treatment. The letter stated in part:

‘After a comprehensive investigation and consideration of the facts obtained from the allegations that were listed, and in reviewing all the evidence and information at hand, the Company believes that you were treated fairly and reasonably, and on the balance of probability that Zahir Shamsi, Stuart Bigham and other employee’s conduct or behaviour was appropriate.

As discussed, ALS Group takes all complaints by employees seriously and is committed to maintaining a workplace that is free from all forms of inappropriate behaviour. It is believed that you have knowingly made these false allegations in an attempt to avoid further performance management over your inappropriate conduct and unsatisfactory performance. You are now issued with a final warning as a result of these findings.

After considering the situation it is expected that there will be a significant and sustained improvement in your conduct and performance. Specifically, that you will adhere to your hours of work, behave appropriately in the workplace, cease making unfounded allegations against other staff members, and improve your performance to a level deemed acceptable for your position and years of experience with ALS.

This final warning is to put you on notice that the Company considers your conduct and performance unacceptable. Any further instances where you fail to follow instructions will result in termination of your employment with the Company.

ALS Group will not tolerate any form of victimisation towards any employee as a result of making a formal complaint. Should you feel this is occurring, please do not hesitate to contact me immediately.’

The applicant believed that between 6 December 2013 and 3 January 2014, he had worked appropriately and no conduct or behavioural issues were raised with him.

[8] The applicant’s evidence was that when he began work at approximately 8:30am on 3 January 2014, he was seated near Ms Carolina Londono, Ms Yun Kang and one other employee. He overheard Ms Kang use phrases such as ‘Atsuko’, ‘he slapped her on the butt’ , ‘she has a nice butt but a bad face’, ‘he thinks it’s Atsuko’, ‘he got her pregnant’, and ‘didn’t he use a condom’. Yun moved over to the station next to him and an exchange to the effect of the following took place:

Applicant:	Good morning. Hey do you know Atsuko? Do you have her number or something?
Ms Kang:	Who Bazzoka?
Applicant:	No, Atsuko, don’t you remember?
Ms Kang:	What! Stop doing it Jake.
Applicant:	Please, Yun, I have done nothing.

[9] The applicant said that Ms Kang then moved away from him. Shortly after, at approximately 9:10am, Mr Bigham approached him and said words to the effect of, ‘Jake, you’re doing it again, making false accusations. Leave, just leave now. Go see Laura.’ He left immediately. On or about 8 January 2014, he made some notes of this incident. These notes also made reference to employees yelling at him and laughing at him in a taunting fashion on Christmas Eve. They also stated in part:

‘Yun was talking with Carolina.

Filling her in on the details about my personal life.

he got her pregnant.

I find it hard to believe how my work colleagues know about my love life because I had never spoken nor told anyone that I had met a girl nor spoke about her.’

[10] The applicant claimed that this incident had resulted in him experiencing severe stress for which he sought medical treatment. His treating doctor gave him a medical certificate for 4 January to 15 January 2014.

[11] The applicant said that he received a letter from Ms Lonie on 8 January, requiring him to attend a disciplinary meeting on 16 January. He attended with Mr Robert Harding, a solicitor and an Elder at his Church. Over about twenty minutes, the incident of 3 January was discussed and Ms Lonie made notes. Ms Lonie told him that a formal complaint had been made against him, but would not let him see the complaint or tell him who had made it. He was then asked to wait outside for approximately ten minutes. He was then handed his termination letter (see para [4] above).

[12] In oral evidence, the applicant explained that in the week before 3 January 2014, he had received a text message indicating that he ‘may have caused an unplanned pregnancy.’ He had mentioned this to Ms Ortiz, but had not mentioned Atsuko’s name. When he had heard Ms Kang use Atsuko’s name at work, he wanted to know how she had known about it. He had behaved somewhat sarcastically, but maintained he acted professionally. He denied spreading the rumour about himself. The applicant referred to ‘rumours’ that he had stolen a mobile phone and that he was carrying weapons in his bag. He clarified that it had just been his lunch.

[13] In cross examination, the applicant said he was not surprised that Mr Bigham’s notebook referred to 51 workplace issues involving him between early and late 2012. This was because they would blow up any small thing into a much bigger issue.

[14] The applicant conceded that over four years, he would have asked Mr Bigham what he should be doing about three times a day. Mr Bigham developed a plan for him so he would stop doing this, but this had just made him look incapable. He did not accept that Mr Bigham had often helped him.

[15] The applicant accepted that he had been issued a written warning in March 2009 for unsatisfactory conduct. He had received a further warning and had been barred from using a pallet gate in January 2012 after a safety incident. He had received another warning on 27 January 2012 after another safety incident involving a fire. He agreed that he had received a further warning on 25 November 2013. However he did not accept the contents of the warning relating to aggressive behaviour, leaving work early, unsatisfactory performance and making unfounded allegations against other staff were true. He had also been warned for failing to notify work when he was late or took sick leave.

[16] The applicant explained another incident in which he had thrown a stack of printed labels on the desk in front of Ms Vargas because it was impossible for him to do his job. He did not believe that she would have been shaken or upset by this, unless she had her own issues. Another employee was changing the label numbers to ‘get me out of my job’. He had reported the issue to HR, but found he had no support. He had made a formal written complaint to Ms Lonie. He agreed that he had not particularised incidents relating to his allegations, because he thought he should leave it to her judgement to determine what was happening. He did not accept that this complaint was designed to divert attention from the incident with Ms Vargas.

[17] The applicant accepted that the final warning given to him in December 2013 set out that if he had any issues with other staff, he was to approach Ms Lonie. He had done so a number of times, but she was never very helpful. He felt isolated and his own supervisor had a personal dislike of him. He did not accept that his allegations in relation to other staff speaking Spanish about him was a complaint, he had just tried to settle it professionally. He admitted he could not speak Spanish. He could not say how other people would be talking about his personal life, if he had not spoken about his personal life at work.

[18] The applicant said that he had never introduced ‘Atsuko’ to his colleagues and could not say how his colleagues even knew she existed. He had not believed Ms Kang when she said she did not know ‘Atsuko’. He thought that she was actually laughing, smiling and ‘working him up’. He did not believe that Ms Kang and Carolina bumped into each other. They gave each other a ‘high five’, to aggravate him.

[19] The applicant said that after he was dismissed he had worked in a laboratory for another company for about three months, but had encountered similar treatment and had resigned.

Ms Zayela Ortiz

[20] On 7 January 2014, Ms Lonie took notes during an investigatory meeting as to Ms Ortiz’s view of the behaviour of the applicant, including during the incident on the morning of 3 January 2014. They were as follows:

‘Yun + Jake were talking, Yun looked upset + confused + Jake looked angry. Overheard Yun say ‘What do you mean? I don’t know’ + she looked upset.

1mth ago - Jake said something to Liliana didn’t understand + said ‘what do you mean?’ + Jake said ‘Oh you don’t understand’ + stormed off.

NY week - Jake told CML + Zaira ‘looks like a girls is pregnant to me - I got a message’ + Zaira said ‘could it be>’ + jake just kind of turned around + walked away.

Jake is a good guy + usually helps, but acts strangely sometimes. He things everyone is against him - always talking about him behind his back.’

[21] In oral evidence, Ms Ortiz said she had worked with the applicant for six months. While she had not personally experienced any trouble with the applicant, she had witnessed some trouble with other people. He often complained about his job. She had never heard Ms Kang, Ms Londono or anyone else use the name ‘Atsuko’ on the morning of 3 January 2014 or any other time. She had not heard anyone say anything like ‘She has a nice butt, but a bad face’ or ‘He got her pregnant’.

[22] It was Ms Ortiz’s evidence that she had not heard the exact conversation between Ms Kang and the applicant on 3 January, as the laboratory was noisy. However, she could say that, at a certain point, the conversation between them became unfriendly. Ms Kang got upset and asked something similar to ‘What do you mean?’ When she spoke to Ms Kang later, Ms Kang told her that she had been crying in the meeting room because of the exchange with the applicant.

[23] Ms Ortiz was referred to the report prepared by Ms Lonie after her interview and agreed that Ms Londono was present when the applicant had told her that a girl might be pregnant to him. She had not told anyone else about this.

[24] Ms Ortiz agreed that she had lost her mobile phone in December 2013. She had not heard a rumour that the applicant had stolen it or a rumour about the applicant’s backpack. Mr Bigham had never told her to report the applicant if he was spreading false allegations. She had witnessed issues with the applicant’s attendance and behavioural incidents at work and she was aware that he made mistakes. However, she was not aware of whether his employment was actually under threat.

[25] In cross examination, Ms Ortiz said that she would not feel comfortable if the applicant was reinstated as she lacked confidence in knowing how to act around him.

Ms Carolina Londono

[26] On 7 January 2014, Ms Lonie took notes as to Ms Londono’s view of a number of incidents involving the applicant, including that of 3 January 2014. They were as follows:

‘Xmas week - Jake told CML ‘I know everyone’s talking about me in spanish, I’m learning spanish + I can understand what you’re saying’. CML said ‘no, we don’t talk about you’. And whenever they laugh, he say’s ‘what’s so funny?’ + they try to translate the joke for him. NY week, Jake told CML + Zairi that a girl was harassing him + calling him a bit. CML + Zaira didn’t understand so just ignored him.

CML overheard Yun say ‘I didn’t do it’ loudly + CML turned around to see what was going on. Yun came + talked to her later that day - CML asked her if she was ok - She looked upset, + Yun told her what happened + asked her if she knew what he was talking about.’

[27] In oral evidence, Ms Londono claimed that she had never heard the name ‘Atsuko’ mentioned. Nor had she heard anyone use the phrases ‘He slapped her on the butt’, ‘She has a nice butt, but a bad face’ or ‘He got her pregnant’ on the morning of 3 January 2014. She had had a conversation with Ms Kang and then she went near the applicant’s workstation. She could not hear the conversation between the applicant and Ms Kang, but she had heard Ms Kang loudly say, ‘I didn’t do it.’

[28] Ms Londono spoke to Ms Kang later in the day and asked her if she was ok. Ms Kang said no and claimed that the applicant had accused her of talking about a girl. Neither of them knew what he was referring to. Ms Kang did not mention anything about a pregnancy rumour and she had never heard that rumour herself.

[29] Ms Londono was aware that the applicant had made some sort of allegation that she and Ms Ortiz had been speaking about him in Spanish. She accepted a proposition put by the applicant’s solicitor, that it was probably best to speak English in the laboratory. Ms Londono was not aware of a rumour that the applicant had stolen Ms Ortiz’s phone or any rumour about the applicant’s backpack containing weapons or explosives.

[30] Ms Londono said that the applicant worked fast, but he made some mistakes. She was not aware that he had received a warning about his behaviour or of any general direction being given to report the applicant if he made false allegations against anyone.

[31] In cross examination, Ms Londono explained that she had worked for the respondent for four years and had worked with the applicant throughout that period. He often made mistakes and this affected the work flow in the laboratory. The laboratory had worked effectively since he had left and she would feel uncomfortable if he returned.

Ms Yun Kang

[32] At 9:22am on 3 January 2014, Ms Kang sent an email to Mr Bigham setting out her version of the incident earlier that morning. It was as follows:

‘Jake came to me as Yun, Kang and said, “Do you remember last week?”

I said, “What about?”

He said, “You really don’t remember?”

I said, “No. What is it?”

He said, “You were talking about ..... (someone’s name, I don’t know her) with Carolina and Zaira behind me.”

I said, “....., who? I didn’t understand the word (meaning the name) Is it English?”

He went with an empty laugh.

I said, “So you’re saying I was talking about someone behind you? Who?”

He said, “I just said the name!”

(I laughed because I kept asking her name. I couldn’t pronounce her name)

He said, “What’s so funny?”

I said, “Jake, I don’t remember. I didn’t do it. I don’t even know her”

He said laughing, “Huh, alright. Sorry...”

Later...

He said, “You have a really short memory.”

I said, “What, I don’t know about this.

He said, “Well, I will help you refresh your memory then. You said I was having a kid with ..... behind me. I wouldn’t do anything to anybody.”

I said, “I didn’t say anything.”

He went with another empty laugh.

Later...

I was having a little giggling with Carolina as we passed by.

He said, “It’s funny, isn’t it?”

This incident is very upsetting me because I was accused of something I didn’t do to him and he kept going with his accusation everytime he saw me. I couldn’t concentrate on my work.’

[33] On 7 January 2014, Ms Lonie took notes during an investigation meeting as to Ms Kang’s view of the incident. They were as follows:

‘Normal relationship usually. Last Friday, said good morning. Later, 8am, was doing work besides Jake’s desk, Jake said ‘do you remember last week?’, Yun said ‘about what?’ Jake said ‘You were talking about ‘a woman’ (said name but can’t remember) behind me w/ Zaira + Carolina’. Yun said ‘Who, who? If it’s an English name, I can’t understand it.’ Jake repeated the name + then said ‘oh don’t worry about it’ + left it. About 10mins later, Jake looked at Yun + said ‘You have a really short memory if you don’t remember’, Yun said ‘I don’t know what you’re talking about’ Jake said ‘OK, you can just sit there + lie about it.’ Then Yun kept asking ‘do I know her? What’s the name?’ + Jake repeated the name. Jake said ‘I’ll refresh your memory - You said I was having a kid w/- this person + I wouldn’t do anything w/- anyone’. Yun rose her voice + said I didn’t do it.’ Jake got a bit embarrassed + stopped. Later Carolina and Yun passed each other + giggled at each other + Jake said to them ‘it’s funny isn’t it?’ Yun went to Stuart and told him about it.’

Ms Lonie also noted that Ms Kang was concerned about speaking to her as she did not want to make trouble for herself or the applicant.

[34] Ms Kang said in oral evidence that she could not remember whether she had had a conversation with Ms Ortiz or Ms Londono on the morning of 3 January 2014, though conceded she may have done so. She had not said or heard ‘He slapped her on the butt’, ‘She has a nice butt, but a bad face’ or ‘She got her pregnant.’

[35] Ms Kang claimed she had never heard the name ‘Atsuko’, though the applicant had mentioned this name to her several times as she was having trouble repeating it. The conversation between them was about five to ten minutes. She had laughed because she could not get the name right and she had no idea what the applicant was talking about. He had responded by saying ‘It’s funny, isn’t it?’ in a sarcastic fashion. He had said words to the effect of, ‘You were talking with Zayela and Carolina about me having a kid with this lady.’ She replied, ‘I didn’t do it.’ She had not been aware of any rumours of a pregnancy prior to this conversation.

[36] Ms Kang agreed that she had giggled when she bumped into Ms Londono. The applicant had seen this and said again sarcastically, ‘It’s funny, isn’t it?’ This was about ten or fifteen minutes after the conversation she had with the applicant. She then reported the applicant to Mr Bigham as she was frustrated and angry at being accused of something that she had not done. She was aware the applicant had been warned for his conduct and, in particular, making false allegations against other persons. She had never ‘high-fived’ Ms Londono. She had cried when talking to Mr Bigham and she could not concentrate on her work.

[37] Ms Kang was not aware of Ms Ortiz’s phone having been lost or stolen. Nor was she aware of any rumours about the applicant’s backpack.

[38] Ms Kang said that the applicant was a ‘nice guy’, but he worked fast and made a lot of mistakes, meaning that the laboratory had to repeat the work.

[39] In cross-examination, Ms Kang said that she had worked for the respondent for eight years and with the applicant for three or four of those years. He made mistakes probably more than once a month that caused flow on problems in the laboratory.

[40] Ms Kang explained that during the conversation with the applicant, she had difficulty understanding the name and asked him to repeat it several times. He became more and more sarcastic and this upset her. He had said, ‘What’s so funny?’ and ‘You have a really short memory.’ She had said repeatedly that she did not know the person he was talking about, but he did not believe her and he continued to ask the question in the same way.

[41] Ms Kang deposed that she had never made a complaint to Mr Bigham prior to this incident in her eight years working for the respondent. The performance of the laboratory had been good since the applicant had left, with few mistakes. If the applicant was reinstated, she would feel uncomfortable.

Mr Chris Heselwood

[42] In oral evidence, Mr Heselwood stated that he had not directly witnessed the incident between the applicant and Ms Kang. He only became aware of it after the applicant had been directed to leave the workplace. He had been aware that Ms Ortiz’s phone had been missing, but was not aware of any rumour that it was the applicant who had taken it. Nor was he aware of any rumour about weapons in the applicant’s backpack, though there may have been a notice issued setting out that people should report any safety concerns that they had. This was normal practice in a laboratory dealing with chemicals.

[43] Mr Heselwood had been aware that the applicant had been given a final warning as he was Acting Manager while Mr Bigham was away. Mr Bigham had filled him in on some of the details. Nobody was directed to report further incidents specifically involving the applicant. He was not aware of the applicant’s health issues. Nor was he aware of any bullying behaviour in the workplace.

[44] Mr Heselwood confirmed that the applicant had not denied the allegations put to him in the disciplinary meeting on 16 January 2014. The applicant had asked who had made the formal complaint against him, but Mr Heselwood remembered Ms Lonie saying she could not reveal that information at that time. In the intervening ten minutes between the applicant being asked to wait outside and him being handed his termination letter, Ms Lonie told Mr Heselwood that based on what had occurred, a decision was being made to terminate the applicant’s employment. A letter was typed up, he signed it and the applicant and his support person were called back into the room. Mr Heselwood denied that a decision to terminate the applicant had been made prior to the meeting. He was content that the applicant had had an opportunity to put his side of the story. The HR Department of the respondent made the decision and Mr Heselwood signed the letter in his capacity as Acting Manager.

[45] Mr Heselwood described the performance of the applicant as ‘Sometimes he was okay and other times he wasn’t so great’. He had a habit of finishing a particular task, then asking the supervisor what to do next, whereas most workers would just find something else to do of their own accord. He did not agree with a proposition that this behaviour was an expression of the applicant’s conscientiousness.

[46] Mr Heselwood acknowledged that the respondent had a number of laboratories in Brisbane and agreed it was possible that the applicant could be offered a position in another laboratory.

[47] In cross examination, Mr Heselwood said that at the beginning of the meeting on 16 January 2014¸ Ms Lonie had expressed that the purpose of the meeting was to hear the applicant’s side of the story. He was confident that the applicant knew why he was there. Mr Heselwood accepted the proposition that he was present more as a witness than as a decision maker.

Mr Stuart Bigham

[48] Mr Bigham is a Laboratory Supervisor and has worked for the respondent for almost ten years. He is responsible for supervising the laboratory staff, the organisation of workloads, stock maintenance, maintenance of laboratory equipment and the auditing and testing methodologies. At the time the applicant was dismissed, there were eight Laboratory Technicians employed in his laboratory, including the applicant.

[49] In his written statement, Mr Bigham claimed that the supervision of the applicant had caused him a significant degree of stress; the quantum and range of performance and behavioural issues of the applicant had increased over time. His own notebook reflected 51 incidents between early 2012 and 2013 and these did not include incidents for which he was formally counselled or warned. He made mistakes with sample racks (for which he blamed others), failed to comply with instructions and failed to complete tasks assigned to him. He also would arrive late for work or leave early without permission.

[50] Mr Bigham described two serious safety incidents involving the applicant in January 2012. In the first of these, the applicant failed to lock a forklift gate which was located on the first floor of a building and opened to the floor below. This risked serious or fatal injury if a person fell to the ground floor below. It had been brought to all staff’s attention a number of times. In the second incident, the applicant left a Hexane soaked rag next to a 215°C hotplate, causing it to ignite into a 50cm fireball in a commonly occupied area. The applicant was warned for both of these incidents.

[51] Mr Bigham explained that the performance issues relating to the applicant were constant and ongoing. He was heavily involved in assisting the applicant to improve his performance. The applicant would approach himself or the Assistant Laboratory Supervisor between 10 and 20 times a day asking for his next task, which he would then not perform. He was informally counselled constantly for non-work related discussions, which usually coincided with errors he made, which were then blamed on other staff. The flow on effects of the applicant’s performance were tangible, negative and caused stress to the other employees.

[52] Mr Bigham stated that the conduct of the applicant also caused stress in that he made a number of baseless allegations against almost all staff, including that they had photographed him, went through his locker, followed him home from work, talked about him in Spanish and spread rumours about him. Mr Bigham had been a target of this behaviour and he had taken personal leave because of it.

[53] Mr Bigham said that it became necessary to increase the applicant’s performance management process in the second half of 2013. A formal warning was issued to the applicant on 25 November 2013 after he again left work early, without permission. This warning also referred to his making of baseless accusations against other employees. Between being notified of the relevant counselling session and it taking place, he became agitated and accused staff of ‘cooking up’ allegations against him.

[54] Mr Bigham deposed that the final written warning was issued to the applicant on 6 December 2013 after an investigation concluded that allegations made by the applicant were found to be entirely false. In Mr Bigham’s opinion, the applicant made these allegations to shift focus onto other staff after being issued with the earlier warning.

[55] Mr Bigham said that he was not able to hear the discussion between the applicant and Ms Kang on 3 January 2014, but he could see them from his desk through a window in the adjacent office. The applicant had initiated a conversation with Ms Kang and then become progressively more agitated. Ms Kang appeared to become upset and then walked away. Each time that Ms Kang moved near the applicant again, he would speak to her again. Eventually, Ms Kang left the laboratory and entered Mr Bigham’s office. He could see that she had been crying. They moved to the meeting room where Ms Kang burst into tears. Mr Bigham emphasised that he had never seen Ms Kang in such a state of emotional distress. Ms Kang had told him that she had no idea of the basis for the applicant’s accusations and thought that she had a good relationship with him. However, she could not continue to work in the laboratory with him.

[56] Mr Bigham said that he then walked into the laboratory and advised the applicant that he was suspended. Mr Bigham himself then took personal leave, due to the stress that the applicant had been causing him.

[57] In oral evidence, Mr Bigham described a specific incident where the original stickers for a rack had been thrown in the bin, despite the applicant telling him that he had completed that rack. He had also repeatedly accused other staff of tampering with his work. The task of supervising the applicant was ‘exhausting’. While there had only been three or four formal warnings there were ‘countless’ counselling sessions. Until the end of 2013, the applicant was generally apologetic, though after that period his general reaction was to blame others.

[58] Mr Bigham said that it had been explained to staff that it was fine for them to talk while they were working, as long as it was not excessive or disruptive. The applicant chatted to others incessantly and the accusations that he made against others put everyone else in the laboratory on edge. He had also made numerous unparticularised accusations of bullying against unnamed persons and claimed people were following him home from work. He could see the applicant’s desk from his window and every time someone passed his desk, he would strike up a conversation with them, meaning that both his own work and that of the other person were interrupted.

[59] Mr Bigham explained that the warning on 6 December 2013 had been issued after the applicant was confronted when leaving work early, without permission. He had responded that he had finished his work for the day and that therefore he could leave. When the Supervisor, Mr Medley had explained to the applicant that he could not make this decision for himself, the applicant became frustrated, kicked a blue skip bin and ‘took off in a huff.’

[60] Mr Bigham further described his limited view of the incident between Ms Kang and the applicant on 3 January 2014 and said that when he had left to get some office supplies, Ms Kang had asked if she could talk to him. When they went to the meeting room, Ms Kang had burst into tears and relayed her view of the incident. Mr Bigham asked her to wait in the meeting room. He walked into the laboratory and told the applicant that he was suspended on pay, until an investigation had been undertaken by HR. His involvement ended after an interview with Ms Lonie of HR, as he took leave to deal with the stress caused by the applicant. He said:

‘... I wasn’t able to sleep or eat, wondering what was going to be coming next. It seemed like each day was going to be an accusation against someone and pretty much just waiting in fear of what was going to come next.’

[61] Mr Bigham emphasised that Ms Kang was not an emotional person and he had never seen her in a similar state before. Nor had she ever made a complaint against another employee before.

[62] Mr Bigham claimed that the morale and performance of the laboratory was ‘fantastic’ since the applicant had left. Work was all completed on time and there were more samples being processed. He was also able to work on developing new methods.

[63] Mr Bigham was asked about his view of the applicant being reinstated. He said:

‘I wouldn’t be able to perform my duties as a supervisor there. With the accusations that were made, they were already compromising my authority over the person because I lost the ability to instruct for fear of it coming back as an accusation, so I would have to find a position somewhere else where they are less or otherwise to be able to continue my work.’

[64] In cross examination, Mr Bigham said that he had not directly recommended the applicant’s termination, as this was a decision for HR. He had said that on a number of occasions that he was ‘fed up’ with the applicant’s work and behavioural issues.

[65] Mr Bigham agreed that on 3 January 2014, he had not walked into the laboratory when he had seen the applicant turning ‘red’. Ms Kang had looked confused. He felt that his ability to perform his duties had been compromised at this stage and he was uncomfortable dealing with the applicant. He thought that the conversation between them had lasted a couple of minutes. He could not recall if he had sent an email regarding the incident or spoke directly to Ms Lonie first. He agreed that he had taken the action to suspend the applicant after his discussion with Ms Kang.

[66] When asked whether he had heard the name ‘Atsuko’ before, Mr Bigham replied that it sounded like the name Ms Kang had tried to pronounce when he spoke to her on 3 January 2014.

[67] Mr Bigham believed that based on his previous interactions with the applicant, it was likely that the applicant was the source of the ‘rumour’ involving an unplanned pregnancy. He acknowledged that this seemed ‘bizarre’ but based on the previous accusations made by the applicant it ‘wasn’t out of the ordinary.’ He had previously made accusations relating to the respondent’s involvement with bikies and a chocolate bar being moved inside a locked locker, though not taken.

[68] Mr Bigham stated that he was entirely unaware of any past mental health issues of the applicant. In addition, he was unaware of any rumour involving the applicant’s backpack. Any rumour involving a weapon or explosives would have been considered very serious and the police would have been called.

[69] Mr Bigham was asked about the appropriateness of telling the applicant he was suspended in the laboratory, rather than in a private area. He responded that his primary concern was to get the work environment back to a normal operation. Only persons in close proximity would have heard him. In any event, the applicant had not attempted to put his side of the story.

Ms Laura Lonie

[70] Ms Lonie is the Senior HR Advisor for the respondent and has worked for the Company since 2007. In her written statement, she referred to a number of documents in the applicant’s personnel file. The first of these was a written warning issued on 6 March 2009 regarding the applicant’s unnotified absences from work. On 12 January 2012, a document headed ‘File Note - Behaviour/Conduct’ was provided to the applicant after his failure to securely lock a pallet gate. It directed him not to use a pallet gate and said, in part:

‘As you are aware, this discussion was to put you on notice that the company finds these actions unacceptable, due to the safety risk to staff on site. As a result, I wish to inform you that should there be further displays of workplace behaviour which after investigation, the company deems as inappropriate or unacceptable, disciplinary action may take place (such as a formal written warning) or in exceptional circumstances the termination of your employment.’

[71] Ms Lonie referred to another written warning issued on 27 January 2012 relating to the applicant leaving a hexane soaked rag next to a hotplate. It said, in part:

‘Jake, after considering your response, the company accepts that this was an accident and was not the result of any malicious action: however, due to the serious nature of the incident and the extremely high safety risks your actions posed to yourself and your colleagues, and because this is your second safety incident within three weeks, I have no choice, but to issue you with a written warning.

Any further breach of Company policies or procedures on your behalf may result in further disciplinary action up to and including termination of your employment with the Company.’

[72] Ms Lonie referred to a further warning issued to the applicant on 25 November 2013. This had arisen when he had been confronted leaving work early on 19 November 2013 and had become aggressive and kicked a skip bin before leaving. This warning also referred to him making unsubstantiated allegations about other employees taking his photo while he was working, following him home and spreading rumours about him getting fired. The written warning referred to extensive examples of unsatisfactory performance between January and November 2013. The letter concluded:

‘This warning letter is to advise you that the Company considers your conduct and performance unacceptable. Any further instances where you fail to follow instructions will result in further disciplinary action up to and including termination of your employment with the Company

Should you have any queries in relation to your conduct or performance of your duties your should not hesitate to consult your Supervisor or myself.’

[73] Ms Lonie said that she received an email from Mr Zahir Shamsi on 27 November 2013 setting out that the applicant had accused Ms Liliana Vargas of tampering with his samples. The next day, Mr Shamsi forwarded an email from Ms Vargas saying that she had been upset when the applicant had thrown a stack of printed labels on her desk when she had been unable to give him a password to a computer. The applicant provided a written complaint about unfavourable and discriminatory treatment on the same day. It was expressed as follows:

‘I am writing this formal complaint to outline some unfavourable and discriminatory treatment and undo [sic] stress over the last few weeks as listed.

False allegations made against me to be able to treat me in a discriminatory manner which includes, meetings with allegations made towards me. with minimal time for me to respond.

Discriminatory treatment about a prior illness,

Ill treatment by fellow employees, projecting anger towards me, Yelling, spreading rumours, not receiving courteous gestures. Laughing in my face. Convincing other employees to hate me. slamming office supplies whilst around me.

Ruining my work reputation with complaints and unfavourable treatment.

This has caused me to walk out of work two times and take leave to calm the tension because the environment is not suitable to get my job done safely, effectively and without errors.

I would like to discuss the issues in further detail and establish if there is a outcome that can rectify the issue of unfavourable treatment towards me.

I sincerely hope we can come to an agreement.’

[74] Following this complaint, Ms Lonie commenced an investigation. She interviewed nine people, including the applicant. From this investigation, she drew the conclusion that all of the allegations were unfounded. She issued the applicant with her findings and a final written warning on 6 December 2013 (see para [7] above).

[75] Ms Lonie said that she received a further email from Mr Shamsi on 11 December 2013 setting out that the applicant had accused two of his colleagues of speaking about him in Spanish and made a general allegation that other staff were tampering with his racks. He was advised to discuss the matter with HR.

[76] Ms Lonie explained that as a result of a phone call she had received from Mr Bigham on 3 January 2014, she issued a notice of a disciplinary meeting within 24 hours on 6 January 2014, though the date of the meeting was changed to 16 January 2014 when the applicant said that he was absent on personal leave until 15 January. Ms Lonie also commenced an investigation into the incident on 3 January 2014 between the applicant and Ms Kang. She interviewed Ms Kang, Mr Bigham, Ms Londono and Ms Ortiz. They all supported Ms Kang’s claim that the applicant had behaved offensively towards her.

[77] Ms Lonie described the meeting on 16 January 2014. In attendance were herself, the applicant, Mr Heselwood in his capacity as Acting Laboratory Manager and the applicant’s support person, Mr Harding. The applicant asked for the identity of the complainant and a copy of the complaint itself. Having considered the interests of the other employees and her view that she had adequately detailed the allegations to the applicant, she refused. The applicant then put his version of events, stressing that he was simply seeking answers in relation to the name of a person he had heard discussed at work. He did not believe he had acted inappropriately and said he would apologise, if he had been misunderstood by the others. The applicant was repeatedly asked if he had anything else he wanted to say or had any witnesses to support his version of events. He and Mr Harding were then asked to leave the room and get a coffee so that she and Mr Heselwood could consider the responses.

[78] Ms Lonie said that in the absence of the applicant and his support person, she and Mr Heselwood determined that the supporting versions of events put by the other employees were more credible than that put by the applicant. When the applicant and Mr Harding returned 15 minutes later, the applicant was told that there was nothing requiring the meeting to be adjourned and, considering the damage caused by his conduct, his unsatisfactory performance, the prior warnings and particularly the final warning, the decision had been made to terminate his employment. He was given the letter of termination.

[79] In oral evidence, Ms Lonie explained that when the applicant had provided his formal complaint to her on 28 November 2013, he had left in a rush. In a subsequent phone call, he had failed to elaborate on his complaints. Finally, at a face to face meeting, the applicant had said that his complaints related to his supervisor and the rest were ‘about staff and that’s all I was able to get.’ However, she had been able to make findings that the allegations were unfounded after interviewing eight other people, all of whom were clear in saying that they had not witnessed any improper behaviour towards the applicant and that it was he who had behaved inappropriately towards his colleagues.

[80] Ms Lonie said that when she received the call from Mr Bigham and subsequent email with Ms Kang’s complaint on 3 January 2014, she had visited the site and met with four witnesses. She tried to speak with the applicant. This involved a number of telephone calls. The applicant hung up on her a number of times. She explained to the applicant that being suspended while on pay required him to attend meetings as directed, but the applicant then took personal leave and was unavailable until 16 January 2014. A notice of the disciplinary meeting of this date was forwarded to him.

[81] Ms Lonie stressed that the notes she had taken of her interviews with the four witnesses were for her own reference and should not be considered as a transcript. However, the four witnesses had provided consistent accounts of Ms Kang being harassed, intimidated and offended by the applicant on 3 January 2014.

[82] Ms Lonie stated that she had opened the meeting of 16 January 2014 by asking the applicant to acknowledge that he had received the notice, whether he had elected to bring a support person, whether he understood the issue being put to him and if he had had enough time to prepare for the meeting. The applicant had asked for a copy of the complaint. Ms Lonie refused on the basis of the interests of the witnesses and after having formed the view that the applicant had sufficient information to respond to the allegations. When asked for his response, the applicant simply denied any impropriety in his actions. His support person suggested that there may have been a misunderstanding and said that the applicant would be willing to apologise if this was the case. The applicant was asked repeatedly if he had anything further to add, to which he answered ‘no.’ He and his support person were asked to briefly leave the room.

[83] Ms Lonie said that she and Ms Heselwood had then discussed the matter and made the decision that the best outcome was for the applicant’s employment to be terminated. A termination letter was printed off and signed by Mr Heselwood. The applicant and his support person had returned and they were advised that the applicant’s employment was to be terminated immediately, but with payment of four weeks’ notice. Both the applicant and his support person were upset at this news.

[84] Ms Lonie acknowledged that she had drawn up the termination letter prior to the meeting, but emphasised that she had not made a decision to terminate his employment prior to the meeting. There were three possible outcomes prior to the meeting: termination, returning the applicant to the workplace or further suspension on pay to investigate additional issues. The decision to terminate had been made at the meeting. She also said that if the applicant had improved his performance and refrained from improper conduct after 6 December 2013, she would have been happy for him to continue working for the respondent. This would have been a win-win outcome.

[85] In cross examination, Ms Lonie agreed that the applicant had been directed by Mr Bigham to leave the laboratory on 3 January 2014, without reference to her.

[86] Ms Lonie was questioned about the nature of the ‘rumour’ that the applicant had ‘caused an unwanted pregnancy’. She stressed that Ms Kang had not raised the issue of the pregnancy with her in the interview, but acknowledged that Ms Kang referred to the applicant mentioning this in her written complaint. She did not see the employees at the laboratory as particularly interested in gossip; they were hard-working, generally didn’t chat all day and were from a number of different cultures. In any event, she was not convinced that this allegation was a rumour; her investigation had revealed that the applicant had told Ms Londono and Ms Ortiz that ‘some girl might be pregnant to him’. This had been revealed to her in a confidential investigation and there was no suggestion that there was a rumour.

[87] Ms Lonie believed that the first time she heard the name ‘Atsuko’ clearly expressed was from the applicant himself. Ms Kang had referred to a similar name, referring to it as ‘something like Bazooka’. She still could not pronounce it properly when she was interviewed the following Monday.

[88] Ms Lonie emphasised that the applicant’s denials that he had ‘targeted’ Ms Kang over the course of that morning, to the point she became severely and uncharacteristically distressed, did not stand against the corroborated witness evidence of four other persons. This was why further investigation was deemed unnecessary.

[89] Ms Lonie said that it would currently be impossible to reinstate the applicant in a position in another laboratory, as there were currently no positions relevant to the applicant’s qualifications and experience. The respondent had made some other laboratory technicians redundant, though not in the laboratory in which he had been working .

[90] In response to questions from me, Ms Lonie stressed that the applicant had not indicated to her that he did not understand the nature of the allegations being put to him when she had called him during his suspension. He had asked for information as to the conduct of the disciplinary meeting in one of these telephone conversations. He had said that he was thinking of taking leave and she had explained his obligations while he was suspended with pay, when he hung up on her.

SUBMISSIONS

For the applicant

[91] In written submissions, Mr R Harding claimed that there had been no evidence presented to the Commission that there had been any adverse performance or conduct issues in relation to the applicant between 6 December 2013 (the date of issue of his final written warning) and 3 January 2014. While there had been a number of warnings over his 6 ½ years working for the respondent, there was no evidence of misconduct or poor performance during these times. On the balance of probabilities, it should not be accepted that the applicant had made false allegations against three persons (Ms Ortiz, Ms Londono and Ms Kang).

[92] Mr Harding highlighted several differences between the recollections of the applicant and that of Ms Kang in relation to the incident on 3 January 2014. Mr Harding was highly critical of Ms Kang’s recollections of the name ‘Atsuko’ as he claimed she had given inconsistent accounts of these recollections. Further, Mr Harding said that Ms Kang had not truly misunderstood the name ‘Atsuko’ in conversation with the applicant - her repeated use of the word ‘Bazooka’ or ‘Suko’ was inflammatory and intended to bait the applicant. Similarly, it should be accepted that Ms Londono and Ms Kang had intended to provoke the applicant by giggling behind his workstation.

[93] Mr Harding submitted that the evidence demonstrated that Ms Kang was not truly as upset as she had claimed. She had been aware that the applicant had been subject to a warning, especially in relation to his making of false allegations. She had acknowledged that she had not cried until she had been alone with Mr Bigham. Mr Harding suggested that Ms Kang’s tears may have been a result of her realisation that her allegations may cause trouble.

[94] Secondly, Mr Harding put that the applicant’s evidence was that he had been shocked to receive a message from ‘Atsuko’ immediately prior the New Year in 2013/2014, setting out that she was pregnant and he had only told Ms Ortiz about this. Ms Ortiz’s evidence was that Ms Londono had also been present when the applicant had told her. Ms Londono’s evidence was that she was entirely unaware of the ‘rumour’.

[95] Mr Harding acknowledged that the applicant had been given an opportunity to respond to the allegations at the meeting on 16 January 2014. However, the allegations presented to the applicant in the correspondence of 6 and 8 January 2014 were ‘vague, non-specific and in many respects, inaccurate’. The applicant’s request to see the original complaint or have the allegations of his misconduct particularised were declined. The failure by Ms Lonie and Mr Heselwood to ask questions of the applicant or refute his statements as inconsistent with the other witness’ evidence amounted to a denial of natural justice.

[96] Mr Harding claimed that the evidence showed that the applicant’s employment would have been terminated regardless of what had occurred in the disciplinary meeting on 16 January 2014 and that this was harsh; See: Wadey v Y.M.C.A. Canberra [1996] IRCA 568.

[97] Mr Harding said that the applicant sought reinstatement, though it was understood that this would need to be at a different laboratory, of which there were many in and around the Brisbane area. However, he acknowledged Ms Lonie’s evidence that the Company was experiencing a downturn.

For the respondent

[98] In written submissions, Mr Van de Hoef, said that the applicant had been subject to multiple formal warnings for poor performance, leaving work early without permission, aggressive behaviour, safety breaches, unacceptable conduct and making false allegations against other staff. The deterioration of the applicant’s conduct and performance required an escalation of his performance management in the second half of 2013. This was supported by the evidence of Ms Lonie and Mr Bigham. The evidence of Mr Bigham was that the applicant made repeated mistakes in his work, despite an unreasonably high level of supervision and direction.

[99] Mr Van de Hoef paid particular attention to the last two warnings issued to the applicant on 25 November and 6 December 2013 and the circumstances in which they had been issued. The warning of 25 November 2013 referred specifically to the respondent’s expectations in relation to his being at work during his rostered hours, appropriate behaviour, the improvement of his performance and desisting from making false allegations against other staff. On 28 November 2013, after this warning was issued, the applicant accused another member of staff of tampering with his work and behaved aggressively towards that staff member. The applicant then made his own disingenuous and largely unparticularised complaint, which led to the issue of the final warning on 6 December 2013.

[100] Mr Van de Hoef stressed that there were a number of incidents relating to the applicant’s performance and conduct, the most serious of which occurred on 3 January 2014. Following this, the applicant had been suspended with pay and provided with two separate documents marked ‘Notice of Disciplinary Meeting’, which set out the issues to be discussed. However, the applicant was largely unresponsive in his communications with Ms Lonie, who conducted interviews with all relevant witnesses.

[101] Mr Van de Hoef submitted that the applicant’s behaviour towards Ms Kang on 3 January 2014 was particularly unjustifiable. On the basis of the investigation, the respondent had formed the view that the applicant had overheard and misunderstood a conversation between other employees. He had then repeatedly and unreasonably confronted Ms Kang. He became increasing intimidating, sarcastic and disbelieving towards her in a manner which upset her. The illogical nature of the applicant’s evidence and his disciplinary history contributed to an assessment that his claim that he had been provoked should not be accepted. A reasonable person in the same situation would have accepted Ms Kang’s initial answer and apologised if he had given offence, especially where he had a final warning for similar behaviour. His conduct on this occasion was part of a pattern of behaviour.

[102] Mr Van de Hoef then addressed the specific criteria for assessing whether the dismissal was ‘harsh, unjust or unreasonable’ under s 387 of the Act. The applicant’s continued poor performance, his heightened level of daily supervision and the damage he had caused to the workplace, all constituted valid reasons for his dismissal (s 387(a)); See: Al Saoub v Moondarra Caravan Park [2014] FWC 2631. While these issues might not individually constitute a valid reason for his dismissal, they did constitute a valid reason cumulatively; See: Trickey v Whitstable Pty Ltd T/A Norwood House Receptions[2013] FWC 6724. He described the events of 3 January 2014 as the ‘catalyst’ for dismissal.

[103] Mr Van de Hoef submitted that where there was a valid reason for dismissal, significant mitigating factors must be established to demonstrate that a dismissal was ‘harsh, unjust or unreasonable’. The applicant had suggested that malicious rumours about him relating to a pregnancy, a stolen mobile phone and the hiding of a weapon in a backpack were being circulated. Even if these rumours had been true, they were not relevant to his dismissal.

[104] Mr Van de Hoef noted that the applicant had been notified of the reason for the disciplinary meeting and of the reason for the termination of his employment (s 387(b)). He had been given an opportunity to respond by way of the notifications of the disciplinary meetings and at the meeting itself (s 387(c)). Mr Van de Hoef accepted that where an employer relies on behavioural incidents over a period of time, it was necessary to provide the employee with appropriate detail to recall the relevant issues or events; See: Anning v Virgin Australia Airlines Pty Ltd[2012] FWA 8414. Ms Lonie had good, cogent and fair reasons for withholding the names of the complainant(s) and the text of the written complaint. In this case, the applicant was suspended directly after the incident in question and it was clear to him as to what the matter was to which he was expected to respond. This was acknowledged by the applicant at the meeting on 16 January 2014. The applicant simply denied it had occurred.

[105] Mr Van de Hoef referred to the applicant’s focus on the brief period of time which had elapsed between the end of the meeting and the decision being made to terminate his employment. The incident to be considered was of relatively short duration and the applicant had not provided any detailed response to be considered. Accordingly, no further time was needed for the respondent to make its decision. The respondent then made the decision to terminate the applicant’s employment, with payment of four weeks’ notice, having taken into account the applicant’s disciplinary history. In the alternative, if the Commission were to find that this was a procedural deficiency, it would not be sufficient to find that that the applicant’s dismissal was ‘harsh, unjust or unreasonable’; See: Gurdil v The Star (Casino)[2013] FWC 6780.

[106] Mr Van de Hoef noted that the applicant had been offered, and had taken the option of having a support person present at the disciplinary meeting on 16 January 2014 (s 387(d)). The evidence, including that of the applicant, demonstrated that the applicant had been repeatedly warned about his poor performance (s 387(e)).

[107] Mr Van de Hoef submitted that ss 387(f)-(h) were not relevant to this application. The applicant had been accorded more than a ‘fair go all round’ and the application should be dismissed.

CONSIDERATION

Statutory provisions and applicable principles

[108] The essential matter to be determined in this case is whether the applicant’s dismissal was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act. That section is expressed 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:

[139] After consideration of all the relevant issues and factors in this case, I am not satisfied that the applicant’s dismissal on 16 January 2014 was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act. Given the recent history of the applicant’s employment, I am satisfied that he has received a ‘fair go all round’ as required by s 381(2) of the Act. Accordingly, this application for an unfair dismissal remedy is dismissed. An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr R Harding, Solicitor for the applicant.

Mr D Van de Hoef for the respondent.

Hearing details:

2014

Brisbane:

19 June

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