James Wood v Mingara Recreation Club Ltd

[2020] FWC 686

[2020] FWC 686

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Wood
v
Mingara Recreation Club Ltd
(U2019/12389)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 10 FEBRUARY 2020

Application for relief from unfair dismissal – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.

Introduction

[1] Mr James Wood was employed by Mingara Recreation Club Limited (Mingara) as a full time Venue Concierge Team Member from April 2016 until his dismissal on 18 October 2019, at which time he was paid four weeks’ wages in lieu of notice. There is no doubt that Mr Wood has extensive experience and expertise as a security guard. His capacity to undertake security work is not in question. It was Mr Wood’s relationships with some of his managers, supervisors and work colleagues that brought about the cessation of his employment at Mingara.

[2] The catalyst for Mr Wood’s dismissal was a text message he sent to a work colleague, Ms Monica Bennetts, shortly after he received notification of a change to his work roster in September 2019. Ms Bennetts was upset by the text message, particularly by reason of the accusation Mr Wood made in the text message that Ms Bennetts had some involvement in the change to Mr Wood’s work roster.

[3] On 7 November 2019, Mr Wood filed an unfair dismissal application against Mingara (Application) in the Fair Work Commission (Commission). Mr Wood contends that his dismissal was harsh, unjust and unreasonable. Mingara denies those allegations and says it was justified in dismissing Mr Wood as a consequence of his conduct.

[4] I decided that it was appropriate to hold a determinative conference rather than a hearing in this matter. In making that decision, I had regard to the views of the parties, together with the fact that a determinative conference would be the most effective and efficient way to resolve this matter. The determinative conference was conducted in Newcastle on 28 and 29 January 2020. In part, Mr Wood represented himself. Ms Clifford, who was Mr Wood’s support person in a meeting before his dismissal, also represented Mr Wood, in part, during the determinative conference by asking questions of a number of Mingara’s witnesses. Mingara was represented by Mr Ushakoff of the Registered Clubs Association of NSW T/A Clubs NSW.

[5] Mr Wood gave evidence at the determinative conference. Mingara adduced evidence from the following nine witnesses:

• Mr Bradley Hurst, Mingara Cash Manager, Gaming Supervisor and Security Guard;

• Mr Daniel Pinkstone, Mingara General Manager;

• Ms Deborah Luckie, Mingara Concierge Co-Ordinator;

• Mr Mitchell Johnston, Mingara Shift Manager;

• Ms Hannah Simmons, Mingara Learning and Development Trainer;

• Mr Jason Bygroves, Mingara Shift Manager, whose duties include managing Mingara’s Venue Concierge Team;

• Ms Sarah Pack, Mingara Operations Manager from December 2017 to November 2019;

• Ms Monica Bennetts, Mingara Venue Concierge Team Member; and

• Carly Glover, Mingara Human Resources Manager.

Initial matters to be considered

[6] Section 396 of the Fair Work Act2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the Application.

[7] There is no dispute between the parties and I am satisfied on the evidence that:

(a) Mr Wood’s application for unfair dismissal was made within the period required in s 394(2) of the Act;

(b) Mr Wood was a person protected from unfair dismissal;

(c) the Small Business Fair Dismissal Code did not apply to Mr Wood’s dismissal; and

(d) Mr Wood’s dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

[8] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Wood’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

Valid reason (s 387(a))

General principals

[9] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3

[10] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).⁵

[11] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.⁶ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7

[12] The employer bears the evidentiary onus of proving that the conduct on which it relies took place. 8 In cases where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.9

Alleged valid reason

[13] Mingara contends that it had a valid reason for Mr Wood’s dismissal based on his conduct during his employment with Mingara. It particular, it alleges that Mr Wood:

• consistently engaged in insulting, negative and bullying behaviour towards other staff and the Mingara Club itself;

• refused to follow lawful and reasonable directives; and

• failed to act in accordance with Mingara’s values and applicable policies.

Relevant facts

[14] As a Venue Concierge Team Member, Mr Wood was primarily responsible for security duties and courtesy bus driver duties at the Mingara Club. From time to time, he was also required to undertake work at the Welcome Desk in the Mingara Club. The purpose of Venue Concierge at the Mingara Club is to “provide a friendly and welcome persona that incorporates safety awareness with a positive teamwork approach.” 10

[15] Two relevant events occurred in the first half of 2018. First, at about 3am on 13 January 2018, Mr Bygroves observed Mr Wood sitting on a counter behind the reception area at the Mingara Club whilst on duty. Mr Bygroves asked Mr Wood to remove himself from the counter, 11 which Mr Wood then did. Mr Bygroves and Mr Wood had a discussion about sitting on the counter. I accept Mr Bygroves’ evidence that Mr Wood said “it’s 3am, no one cares or notices” and Mr Bygroves responded by saying “this is not the perception Mingara wants our staff to create and it’s not appropriate”.12 Mr Wood contends that Mr Bygroves singled him out for his conduct in sitting on the counter, having regard to the fact that Mr McBray was present at the time and did not raise the issue with Mr Wood and other employees who, so Mr Wood contends, regularly lean on the counter and are not reprimanded by Mr Bygroves. I do not accept the contention that Mr Bygroves singled Mr Wood out in this regard. Mr Bygroves was not challenged on his evidence, which I accept, that he has never seen another security guard sitting on the counter in his 18 years of service.13 Further, the values matrix applicable to the Venue Concierge Team at Mingara includes not “lean[ing] on the desk and talk to my mates”.14 Mr Bygroves was upholding this value when he raised the issue with Mr Wood.

[16] Secondly, on 10 February 2018, Mr Wood was assaulted outside the Mingara Club by two teenagers who had earlier been removed from the Mingara Club due to disorderly behaviour and intoxication. Mr Wood blames Mr Bygroves for the assault because Mr Bygroves was the Shift Manager at the time and he let Mr Wood walk on his own from the Mingara Club to his car in the carpark. I do not accept that Mr Bygroves was responsible for the assault or that he acted unreasonably or unprofessionally in relation to it. Mr Wood was not directly involved in the removal of the two patrons from the Mingara Club. Another Concierge Team Member, Mr John Haile, restrained one of the patrons until he calmed down. Mr Wood was there in case assistance was needed. Mr Wood did not say he felt uncomfortable leaving the Mingara Club to walk to his car, nor did he ask for an escort or any other assistance. Mr Bygroves and Mr Haile watched the CCTV footage as Mr Wood walked to his car. They did not believe he was in danger. As Mr Wood approached his car, there was an altercation between Mr Wood and the two teenagers. Mr Bygroves and Mr Haile ran out to the carpark to assist Mr Wood. Mr Bygroves assisted Mr Wood in having the two teenagers prosecuted by the Police and banned from the Mingara Club. Mr Wood returned to work about two weeks after the assault.

[17] Initially, Mr Wood’s direct supervisor was Mr Clive McBray, Venue Concierge Supervisor. Mr Wood had great respect for Mr McBray and appears to have had a good working relationship with him. In about June 2018, Mr McBray announced his intention to retire from Mingara. His replacement was named as Mr Hurst, with Mr McBray to stay on for some time to assist with the transition. Mr Wood did not agree with the decision to place Mr Hurst into that role. Mr Wood did not believe that Mr Hurst had the experience or expertise required for the role and believed Mr Hurst should not have accepted the role. Mr Wood also accepts that he told Mr Hurst that he should not have been given the job and he would not respect Mr Hurst in his job. Although Mr Hurst was Mr Wood’s friend, Mr Wood took no steps to assist Mr Hurst in the security guard aspects of his new role. Instead, Mr Wood concedes that he was rude to Mr Hurst by ignoring him on the basis that he was out of his depth in the role of Concierge Supervisor. By acting in this way, Mr Wood failed to comply with the values matrix for the Mingara Concierge Team in two ways: first, by not “shar[ing] my knowledge and skills with my team mates to help them realise their full potential” and, secondly, by “deliberately ignore[ing] other staff sometimes, bugger them!”. 15 Mr Wood was trained in these values during his employment with Mingara.16

[18] In December 2018, the Mingara Club put on a “Christmas under the stars” event for its patrons. Mr McBray called in sick on the day of the event, so Mr Hurst led the security team for the first time along with Mr Bygroves as the event Shift Manager. I accept Mr Bygroves’ evidence that Mr Wood was not interested in anything Mr Hurst had to say during a security briefing for the event and Mr Wood “stood there with arms crossed, a vacant expression and didn’t even look at Brad delivering his first briefing to the team.” 17 This conduct on Mr Wood’s part is consistent with his concession that he ignored Mr Hurst in his role as Concierge Supervisor.

[19] Mr Wood contends that he was singled out by Mr Bygroves in relation to the “Christmas under the stars” event by putting him down the back of the event with no real work to do and, unlike the situation with other security guards working at the event, not supplying water to Mr Wood during the event. I do not accept this contention. I accept Mr Bygroves’ evidence that Mr Wood was assigned to the northern side of the event in a roaming capacity, Mr Wood could leave his area to obtain water or have a break, and other guards were provided with water because they were in static positions and could not leave their positions. 18

[20] On 5 January 2019, Mr Hurst and Mr Bygroves gave Mr Wood a verbal warning. There is a contest as to the reason for the warning. Mr Wood contends it was given to him for looking negative at the “Christmas under the stars” event. Mr Bygroves and Mr Hurst say the warning was given to Mr Wood for his attitude and behaviour more generally. In particular, it is alleged that Mr Hurst said to Mr Wood: 19

“We’re going to give you a verbal warning for your attitude and behaviour. We want to give you a chance to get on board with us all and be part of the team. You need to work on your communication, attempt to fit in, build relationships, be proactive and stop this negative behaviour. If you don’t get on board, we might have to take more serious action including termination.”

[21] During the meeting on 5 January 2019, Mr Wood told Mr Bygroves and Mr Hurst that they were not fit to be in their roles. Mr Wood told Mr Bygroves that he was a “glorified restaurant supervisor”. Mr Wood also said during the meeting that Ms Luckie was “lazy”. These statements on Mr Wood’s part concerning supervisors and managers at Mingara were clearly inappropriate. I accept Mr Wood’s evidence that he regrets a number of the comments he made in the meeting on 5 January 2019.

[22] I prefer the evidence given by Mr Bygroves and Mr Hurst over that given by Mr Wood about the reason for the verbal warning given to Mr Wood on 5 January 2019, for the following reasons:

(a) Mr Wood accepts that a range of matters were discussed with him at the meeting on 5 January 2019, not just the “Christmas under the stars” event. This makes it more likely that the reason given to Mr Wood for the warning was broader than his attitude at the “Christmas under the stars” event; and

(b) the notes made in Mingara’s “Staff Data” records in relation to the verbal warning given to Mr Wood on 5 January 2019 support the broader reason for the warning. 20

[23] To the extent that Mr Wood may have been unclear about the verbal warning given to him on 5 January 2019, these matters were clarified in Mr Wood’s meeting with Ms Pack on 24 January 2019. That meeting was organised because Mr Wood had made a written incident report about what he alleged to be bullying behaviour directed towards him by Mr Bygroves, including the verbal warning given to him on 5 January 2019. 21 At the meeting, Ms Pack discussed the issues raised by Mr Wood and sought to assure him that Mr Bygroves was not treating him unfairly or singling him out for differential treatment.22 Mr Wood accepted in cross examination that he had a discussion along the following lines with Ms Pack at their meeting on 24 January 2019:

“James then asked about the verbal warning issued in January 2019 and asked:

‘What does it mean?’

I replied:

‘It means that based on the unacceptable behaviour observed and raised with you, you are on notice that if any future instances of the behaviour, comments and conduct occur it would result in further performance management. Your performance issues to date are related to your manner, negativity on processes and procedures and not being able to respect or accept decisions or information when you do not agree.’

I continued:

‘I suggest you ask more questions in an appropriate way and you must follow simple supervisor instructions and respond to reasonable feedback. A prime example of this is with the bus booking sheets and how frustrated you are with the Welcome Desk. Talk to Debbie about it. Seek out more info so you can get behind it.’

… James commented:

‘I’m a dinosaur and it’s hard for me to adapt to our way of working. I’ve been in other industries and I just don’t understand why Mingara does things the way they do.’” 23

[24] Mr Wood accepts that he had a tumultuous relationship with Ms Luckie and was rude towards her on one occasion. Mr Wood was driving the courtesy bus for the Mingara Club. He was reminded by Ms Luckie to make sure he made a call for patrons who may want to use the courtesy bus before taking patrons on the courtesy bus. As Mr Wood was walking towards the courtesy bus to drive patrons home, he told Ms Luckie that he forgot to make the call. I accept Mr Wood’s evidence that he genuinely forgot to make the call on that occasion. Mr Wood accepts that he then fobbed Ms Luckie off as he continued towards the courtesy bus to drive the patrons (who were already waiting for the bus) home.

[25] On 12 June 2019, Mr Wood was issued a written warning in the following terms:

“Dear James

RE: Written Warning

Further to the meeting held with Angela Lanser, Marketing Manager and myself on Thursday, 6 June 2019 at Mingara, I confirm that this letter serves as an official Written Warning.

The reason for the Written Warning is due to making malicious statements about other employees, the Club and its products, and not upholding expectations of behaviour whilst on shift. More specifically, during the meeting we discussed:

• Speaking of team members, their work and their efforts in an inappropriate manner and behind their back;
• Making negative and sarcastic remarks about the organisation and team members;
• Displaying body language that shows a lack of interest and concern such as folding arms and not smiling or engaging with customers;
• Demonstrating a lack of intention to uphold our values and our culture.

As was discussed, the Club’s expectations and standards in this regard are as follows:

• Uphold the conduct and behaviour expectations of employees as outlined in the Mingara Employee Handbook;
• Ensure comments, language and actions remain above the line and adhere to the Anti-Bullying and Harassment policy.

James, as you are aware, you have previously been counselled on similar behaviour and were issued with a verbal warning on 5 January 2019.

Mingara expects that you will show an immediate and sustained improvement. Should this not occur, further disciplinary action may result up to and including the termination of your employment.

Yours sincerely

Jason Bygroves

Shift Manager Mingara Recreation Club”

[26] Mr Wood contends that he should not have been given this warning. He says that he was just passing on to Ms Simmons what a number of customers told him about the new piano bar entertainment at the Mingara Club. Mr Wood accepts that he said to Ms Simmons words to the effect: “Does Daniel Drysdale know what he is doing?” Mr Drysdale was Mingara’s Promotions and Entertainment Co-ordinator at the time. Mr Wood made this comment about Mr Drysdale because piano bar style entertainment had been tried in the past at the Mingara Club and had not been successful. Ms Simmonds contends that Mr Wood’s negative comments on the night in question were far more extensive and warranted the warning being given to Mr Wood. 24

[27] I accept there was a proper basis for a warning to be given to Mr Wood in respect of negative comments he made about other staff at the Mingara Club. While it was acceptable and appropriate for Mr Wood to pass on to Ms Simmonds feedback from patrons in relation to the piano bar entertainment, Mr Wood went on to personally criticise Mr Drysdale in his position as Promotions and Entertainment Co-ordinator. On this score, I accept Ms Simmonds’ evidence in relation to Mr Wood’s comments about Mr Drysdale and management in general at the Mingara Club. 25 Mr Wood’s conduct in making such comments is consistent with his earlier conduct in making significant, personal criticisms of Mr Hurst, Mr Bygroves and Ms Luckie. Further, Ms Simmonds felt so strongly about the matter that she raised it with Mr Bygroves26 and made a note about it in Mingara’s “Staff Data” records.27

[28] Every six months the base rosters for employees at the Mingara Club are subject to change. On the morning of 25 September 2019, Mr Wood and other Mingara employees were informed about changes to their base rosters. Mr Wood’s roster was changed so that he would finish his overnight shift on Saturday at 6am rather than earlier that morning. Mr Wood was very upset about the change to his base roster. He accepts that he sent the following text message to Ms Bennetts at 10:58am on 25 September 2019:

“Fuck Mingara ime [sic] definitely leaving… I have your 6 finish on Sat as well as 6 on Fri… No doubt u worked that out with Jason.”

[29] Ms Bennetts responded to Mr Wood’s text message with a text message in the following terms:

“What? Don’t accuse me of something I didn’t do. It was also Dave’s.”

[30] Mr Wood contends that his text message was a personal message to Ms Bennetts and she should not have shared it with Mingara. Mr Wood also claims that Ms Bennetts should not have been upset by the message because he and Ms Bennetts were friends and they regularly exchanged text messages of this kind during their employment at Mingara.

[31] Ms Bennetts gave evidence, which I accept and so did Mr Wood in final submissions, that this was the first occasion on which Mr Wood had made accusations against Ms Bennetts in a text message. For that reason, the text message Mr Wood sent Ms Bennetts at 10:58am on 25 September 2019 is distinguishable from their other text message communications. I also accept that the text message Mr Wood sent Ms Bennetts at 10:58am on 25 September 2019 had a clear nexus to their work at Mingara, with the result that it was appropriate for Ms Bennetts to raise the message with Mingara and for Mingara to act on it.

[32] I accept the evidence given by Ms Bennetts and Mr Bygroves that neither of them had any involvement in the preparation of the new base rosters in September 2019. As Mr Pinkstone explained to Mr Wood in the investigative meeting on 2 October 2019: 28

“The club rostering coverage requirements were completed by HR Manager Sarah Pack and myself. This process involves establishing coverage requirements. This does not involve staff names it simply outlines staffing coverage requirements for each area within the club by half hour increments. These reports are then submitted to our rostering team who create the roster for the Club dividing shifts between full, part-time and casual staff.

There are over 600 employees in our team and our roster team probably don’t even know who you are aside from your job title and role on the system. The rosters are impartial as they are created by the roster team in group services, not operational staff. Jason is not involved and in any case, he’s the acting venue manager at our other site the Greens at the Entrance so he doesn’t have any responsibilities here at the main site. You could have asked Jason or Daniel Colvin (Concierge Coordinator) about that.”

[33] Mr Wood acknowledged in his oral evidence that Ms Bennetts would have felt very uncomfortable about the text message Mr Wood sent her at 10:58am on 25 September 2019 if the allegations in that text were untrue. In light of my finding in the previous paragraph, Mr Wood’s allegation that Ms Bennetts and Mr Bygroves were involved in the making of the change to Mr Wood’s base roster was untrue. It follows that Mr Wood accepts that Ms Bennett would have been very uncomfortable about the text message. That is precisely how Ms Bennetts felt; she was extremely upset and cried on receipt of the message. 29

[34] Ms Bennetts reported the text message to her Shift Manager, Mr Johnston, at about 11:30am on 25 September 2019. Mr Johnston decided to give Ms Bennetts and Mr Wood the opportunity to discuss the matter and potentially resolve their differences during their shift working together at the Mingara Club on the weekend of 28-29 September 2019. Ms Bennetts and Mr Wood worked together in the Venue Concierge Team on the night of Friday, 27 September 2019. Both Ms Bennetts and Mr Wood agree that Mr Wood ignored Ms Bennetts during their shift on the night of Friday, 27 September 2019. Mr Wood says that he took that course of action because he believed that Ms Bennetts had ‘dobbed in’ another member of the Venue Concierge Team, Glen Sewell, to management at Mingara and Mr Sewell was likely to be dismissed as a consequence. Mr Wood was very upset with Ms Bennetts in relation to what he believed she had done in this regard.

[35] On Saturday, 28 September 2019, Ms Bennetts reported to Mr Johnston that Mr Wood had effectively ignored her on their shift together and she thought they “should do something about this now”. 30

[36] Mr Johnston reported the text message to Ms Pack on 1 October 2019. An investigation meeting was organised with Mr Wood for 2 October 2019. Mr Johnston told Mr Wood that the investigation meeting was “regarding comments you made to fellow staff about your disappointment with your roster that you got with the recent roster review.” 31 Mr Johnston did not expressly refer to the text message Mr Wood had sent Ms Bennetts because Mr Johnston did not want any repercussions towards Ms Bennett prior to the investigation meeting. Mr Wood was suspended with pay during the investigation.

[37] Mr Wood met with Mr Pinkstone and Ms Glover on 2 October 2019. Mr Wood declined the offer to take a support person with him to the meeting. Mr Wood was taken by surprise when his text message to Ms Bennetts was raised in the meeting. He was very defensive. He denied that the text message was inappropriate. He blamed Ms Bennetts for sharing it with Mingara. He blamed Mr Bygroves for unfairly targeting him.

[38] Mr Wood was due to meet with Ms Glover and Mr Pinkstone for a second time on 3 October 2019, but Mr Wood commenced a period of sick leave on 3 October 2019. The second meeting with Mr Wood was rescheduled to 18 October 2019. Mr Johnston and Ms Glover attended that meeting from Mingara. Mr Wood attended with his support person, Ms Clifford. At the commencement of the meeting, Mr Wood again said that his text message to Ms Bennetts was “a personal message that she shouldn’t have shared. Jason [Bygroves] is targeting me.” 32 I accept the evidence given by Mr Johnston and Ms Glover that Mr Wood did not, at any time during the meeting on 18 October 2019, admit that his text message to Ms Bennetts was inappropriate and should not have been sent.33 At the conclusion of that meeting, Ms Glover informed Mr Wood that his employment with Mingara was being terminated with immediate effect and he would receive four weeks’ pay in lieu of notice. The termination of Mr Wood’s employment, together with the reasons for it, was confirmed in writing to Mr Wood in a letter of termination dated 18 October 2019.34

[39] I am satisfied that Mr Wood’s conduct in sending his text message to Ms Bennetts at 10:58am on 25 September 2019 was inappropriate and unreasonable. Predictably, it caused Ms Bennetts to become upset. There was no basis for Mr Wood to make the allegations he did in his text message. Further, Mr Wood did not take the opportunity to discuss the matter with Ms Bennetts on Friday, 27 September 2019.

[40] I am also satisfied on the evidence that there was a reasonable basis for Mr Bygroves to raise the issues he did with Mr Wood and Mr Bygroves did not single Mr Wood out, treat him unfairly, or bully him. In his position as Shift Manager, which included responsibility for managing the Venue Concierge Team, Mr Bygroves was entitled to seek to uphold the values and other policies and procedures of the Mingara Club insofar as they applied Mr Wood and the other members of the Venue Concierge Team.

Conclusion on valid reason

[41] For the reasons given, I am satisfied on the evidence adduced that there was a sound, defensible and well-founded reason for Mr Wood’s dismissal related to his conduct in sending an inappropriate text message to Ms Bennetts about a work related matter on 25 September 2019 and repeatedly behaving in a negative and disrespectful manner towards other staff at the Mingara Club. Accordingly, there was a valid reason for Mr Wood’s dismissal within the meaning of s 387(a) of the Act.

Was Mr Wood notified of the reasons for his dismissal and given an opportunity to respond (s 387(b) & (c))?

[42] It is necessary to consider and take into account whether Mr Wood was notified of any valid reason(s) for his dismissal and whether he was given an opportunity to respond to any reason(s) related to his capacity or conduct.

[43] In Crozier v Palazzo Corporation Pty Ltd, 35 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 (Cth) stated the following:36

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[44] The criterion concerning whether an employee was provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity should be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 37

[45] I am satisfied that Mr Wood was notified of the valid reason for his dismissal and given a chance to respond to it in the meetings held with him on 2 and 18 October 2019, before the decision was made to terminate his employment. Mr Wood was also notified of the reasons for his dismissal in the termination letter dated 18 October 2019.

Was there an unreasonable refusal to allow Mr Wood to have a support person present (s 387(d))?

[46] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, it is relevant to consider and take into account whether the employer unreasonably refused the support person being present.

[47] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”38

[48] Mr Wood was offered to have a support person with him in the meeting on 2 October 2019. He declined that offer. Mr Wood took a support person with him to the meeting on 18 October 2019.

[49] In all the circumstances, I find there was no unreasonable refusal by Mingara to allow Mr Wood to have a support person present to assist at any discussions relating to dismissal.

Warnings about unsatisfactory performance (s 387(e))

[50] This criterion is not relevant because Mr Wood was dismissed on the basis of his conduct. In any event and to the extent it may be concluded that Mr Wood’s dismissal related to unsatisfactory performance, I find that Mingara did warn Mr Wood of his unsatisfactory performance, on 5 January 2019 and 12 June 2019, before his dismissal on 18 October 2019.

Impact of Mingara’s size on procedures followed in effecting the dismissal (s 387(f))

[51] Mingara’s business is of a significant size. In all the circumstances, I find that the size of Mingara’s enterprise was not likely to impact on the procedures followed in effecting the dismissal.

Absence of dedicated human resource management specialists or expertise (s 387(g))

[52] Mingara had dedicated human resource management specialists and expertise to assist in relation to the procedures followed in effecting Mr Wood’s dismissal. In particular, Ms Glover was employed by Mingara during the investigation and termination process for Mr Wood.

[53] In all the circumstances, I find that Mingara’s enterprise did not lack dedicated human resource management specialists or expertise.

Other relevant matters (s 387(h))

[54] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

Employment history at Mingara

[55] Mr Wood was employed by Mingara for about 3.5 years prior to his dismissal. Although he performed the security guard aspects of his role well, he had a number of problems in connection with his interpersonal relations with a number of different supervisors, managers and co-workers. In all the circumstances, the length and quality of Mr Wood’s employment with Mingara does not weigh in favour of his contention that his dismissal was unfair.

Procedure leading up to termination

[56] Mr Wood complains that he was not informed about the precise reason for the meeting on 2 October 2019 and that Mingara attacked him and made its mind up without listening to his responses or conducting a proper investigation. In all the circumstances, I do not accept that the procedure adopted by Mingara was unfair or resulted in an unfair dismissal. Mr Wood was notified of the general reason for the investigation meeting on 2 October 2019. His text message to Ms Bennetts was squarely raised with him during the meeting on 2 October 2019. Having regard to the fact that there is no dispute that Mr Wood sent the text message in question to Ms Bennetts, there were no inquiries that Mr Wood needed to make in order to reasonably respond to the allegation that he had sent the text message to Ms Bennetts. Mr Wood was given an opportunity in both the 2 October 2019 meeting and again in the 18 October 2019 meeting to make any response, or raise any mitigating factors, he wished to raise in response to the allegation being put to him. I accept that Mingara undertook a reasonable investigation into the matters it was investigating once Ms Bennetts complained to Mr Johnston about the text message she had received from Mr Wood. I have also found, for the reasons set out above, that Mr Wood’s allegation that Mr Bygroves was unfairly targeting him is not made out on the evidence adduced in these proceedings. I find that Mingara considered Mr Wood’s responses before making a decision to terminate his employment. In this regard, it is significant, as Mingara emphasised, that Mr Wood did not, during the investigation process, accept that his conduct in sending the text message to Ms Bennetts was inappropriate or give Mingara any reason to believe that Mr Wood’s pattern of conduct towards various supervisors, managers and co-workers would change.

[57] Mr Wood contends that if he had been given an opportunity in the workplace to have a mediation with Ms Bennetts that they would have been able to resolve their differences and his dismissal would not have been necessary. The difficulty with this proposition is that Mr Wood had an opportunity to discuss the issue with Ms Bennetts on their shift together on Friday, 27 September 2019, but he elected, for his own reasons, to ignore Ms Bennetts during that shift. In addition, Mr Wood’s attitude during the investigation process, including his repeated attempts to blame Ms Bennetts for showing the text message to Mingara, suggests that a mediation in the workplace would have been unlikely to resolve the issue satisfactorily.

Impact of termination

[58] I accept Mr Wood’s submission that his dismissal has had a significant impact on his personal and economic situation. At his age and with his employment background, Mr Wood is unlikely to be able to secure full-time work in the future. He is likely to remain on casual or part-time security work, which will limit his earning potential and economic situation. However, once these matters are weighed against the gravity of Mr Wood’s conduct which resulted in his dismissal, I am satisfied that his dismissal was not harsh.

Conclusion

[59] After considering and taking into account each of the matters specified in s 387 of the Act, my value judgment is that Mingara’s dismissal of Mr Wood was not harsh, unjust or unreasonable. Mingara had a valid reason for Mr Wood’s dismissal. It followed a fair and reasonable process before making a decision to bring Mr Wood’s employment to an end.

[60] Mr Wood’s Application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Wood, on behalf of himself.

Ms Clifford, on behalf of the Applicant (Wednesday, 29 January 2020).

Mr Ushakoff, Clubs NSW, on behalf of the Respondent.

Hearing details:

2019.

Newcastle:

28 to 29 January.

Printed by authority of the Commonwealth Government Printer

<PR716544>

 1   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

 2   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 3   Ibid

 4   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

5 Ibid

6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

 7   Ibid

 8   Ibid

 9   Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

 10   Ex R5 at [1]

 11   Ex R5 at [4]

 12   Ibid

 13   Ibid

 14   Ex R8 at CG-G1

 15   Ex R8 at CG-G1

 16   Ex R8 at CG-H

 17   Ex R5 at [16]

 18   Ex R5 at [16]; see, too, Ex R6 at [4]

 19   Ex R5 at [17]

 20   Ex R8 at CG-C

 21   Ex A6

 22   Ex R1 at [8]-[9]

 23   Ex R1 at [9(iv)]

 24   Ex R4 at [2]-[11]

 25   Ex R4 at [5]

 26   Ex R4 at [12]

 27   Ex R8 at CG-C

 28   Ex R7 at [6]; See, too, Ex R2 at [3]

 29   Ex R3 at [2]-[3]

 30   Ex R3 at [4]

 31   Ex R2 at [9]

 32   Ex R8 at [10], which Mr Woods accepted in cross examination

 33   Ex R2 at [11]; Ex R8 at [10]

 34   Ex R8 at CG-F

 35 (2000) 98 IR 137

 36   Ibid at [73]

 37   RMIT v Asher (2010) 194 IR 1 at 14-15

38 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542]