John Bell v Meedac Incorporated
[2022] FWC 905
| [2022] FWC 905 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Bell
v
Meedac Incorporated
(U2021/10033)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 APRIL 2022 |
Application for an unfair dismissal remedy
Mr Bell (the Applicant), a former head chef/cook of Meedac Incorporated (the Respondent), made an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) on 8 November 2021. His employment had ended on 20 October 2021 after he was dismissed for purported misconduct.
The Respondent owns the Inspirations Motel (motel) in Mullewa – a remote rural community in the North of Western Australia. According to the Respondent, the Applicant had been running the motel since his commencement in May 2018. In April 2021, the General Manager of the Respondent recruited Ms D’Elia Holdsworth, Human Resources Manager, to ensure the venue was working within the context of occupational health and safety legislation and workplace law. Ms Holdsworth was based in the regional town of Geraldton, Western Australia.
According to Ms Holdsworth, the motel was struggling to retain newly appointed employees who were engaged to assist with the workload. Ms Holdsworth stated that the reason cited by the departing employees was ‘not being able to work with Mr Bell’.[1] Ms Holdsworth reported that the General Manager considered that a fresh set of eyes was required to get things on track in the motel.[2]
Over the course of September to November 2021, the relationship between the Applicant and Ms Holdsworth appeared to have deteriorated to the extent that I have found that the Applicant failed to follow the lawful and reasonable instructions provided to him by Ms Holdsworth. The Applicant’s misconduct in this respect constitutes a valid reason for his dismissal. Further, having considered all circumstances, including the broader context in the workplace in which the misconduct occurred,[3] and the personal or private circumstances of the Applicant that bear upon the substantive fairness of the dismissal,[4] I have concluded that he was not unfairly dismissed. My reasons follow.
Background
In or around 24 June 2021, Ms Holdsworth received a call from the Applicant advising her that a new employee, an Indigenous woman, by the name of Michelle had resigned.[5] Ms Holdsworth said she travelled out to Mullewa to discuss with the Applicant, Michelle’s resignation. Ms Holdsworth stated that when she asked the Applicant why Michelle had resigned, he replied with words to the effect of ‘that kind don’t last long’.[6] Ms Holdsworth said that she assumed that the Applicant was referring to the fact that Michelle was an Indigenous woman.[7]
Ms Holdsworth said that on investigating the matter, Michelle informed her that the Applicant had bullied her in the workplace by yelling at her in front of customers and making racial jokes about her.[8]
On 29 June 2021 or thereabouts, Ms Holdsworth met with the Applicant to discuss his behaviour towards Michelle. Ms Holdsworth notes that the General Manager attended the meeting (he is no longer with the Respondent business). Ms Holdsworth said that during the meeting, she advised the Applicant that making comments about a person’s colour, their cultural background, or sexual orientation, would not be tolerated, nor would any form of bullying in the workplace.[9]
Ms Holdsworth reports that during the meeting, the Applicant made remarks about trusting Indigenous employees to actually show up to work and made comments about Michelle’s lack of changes to her daily outfits.[10] Ms Holdsworth reported several other disparaging comments made by the Applicant about Michelle.[11]
Ms Holdsworth recalls that at the abovementioned meeting, the Applicant would not acknowledge that she was in attendance and at one point, put his hand in her face and said words to the effect of ‘I can’t hear you’ and ‘I am not listening to you’.[12]
In addition to making disparaging comments about the Respondent’s Indigenous employees, Ms Holdsworth noted that in respect of a lesbian couple, he referred to one of the women as the ‘boy’.
According to Ms Holdsworth, employees had reported to her that the Applicant had made a comment that another Indigenous employee by the name of Chris, smelt, and that the Applicant had similarly said the same about Michelle and a woman by the name of Belinda.[13] To address this issue, Ms Holdsworth said that she asked a Ms Francis Ryan to wash the uniforms of staff twice a week to try and deal with the Applicant’s remarks.
In addition to the abovementioned staff issues, Ms Holdsworth said that she had observed that the employees at the motel were not submitting properly completed weekly timesheets – including the Applicant. Ms Holdsworth elaborated, noting that the Applicant submitted timesheets that simply stated ‘Work/Not Work’, instead of start times, finish times and breaks. Ms Holdsworth said that she spoke to the Applicant and instructed him to correctly fill in his timesheet and submit it each week as he was required to do.[14] Ms Holdsworth reported that for a short period, the Applicant complied with the instruction but then went back to his old ways and did not submit a timesheet or failed to fill in the correct details.[15] Ms Holdsworth said that the issue of timesheets were again raised with the Applicant in emails dated 14 September 2021 and 19 October 2021.
Ms Holdsworth noted that in addition to not submitting properly completed timesheets, the Applicant was not submitting menus. According to Ms Holdsworth, it was the expectation of the Respondent that the Applicant would submit menus and would oversee the proper completion of timesheets for staff in the kitchen.
Ms Holdsworth stated that after the incident concerning Michelle, and having talked to the Applicant, she was hopeful that moving forward the Respondent would not encounter similar problems with the Applicant.[16]
Ms Holdsworth said that on 7 September 2021, she was scheduled to meet the Applicant in the presence of Ms Jodie Vanderwal, Administration Officer, in relation to an allegation the Applicant had used racial slurs and made racist comments. Whilst Ms Holdsworth awaited his attendance, the Applicant failed to attend the meeting absent any contact to advise he would not be in attendance.[17]
Ms Holdsworth said that during September 2021, she made a number of attempts to arrange meetings with the Applicant but was unsuccessful. Ms Holdsworth said the Applicant would not answer calls or offered up excuses that he was busy.[18]
Ms Holdsworth said that a meeting was held on 24 September 2021 with the Applicant, and Ms Vanderwal in attendance. It was agreed at that meeting that as the Applicant was intending to retire, he would resign from his position on 12 December 2021.[19] However, the Applicant gave evidence that the meeting concerned his assertion that he was owed time off in lieu (TOIL). Ms Holdsworth said that after the meeting she learned that 12 December was a Sunday and was therefore not in line with the payroll.[20] She said she contacted the Applicant and advised that his last day would be Friday, 10 December 2021.
During 30 September 2021 until 18 October 2021, the Applicant was on leave under workers’ compensation. Ms Holdsworth said that the Applicant was due to return to work on light duties from 18 October 2021 in accordance with his WorkCover WA Progress certificate of capacity.
That WorkCover WA – Progress certificate of capacity (First WorkCover Certificate) set out that the Applicant had been injured on 29 September 2021. The First WorkCover Certificate detailed that a medical assessment had been undertaken that same day, and it had been signed by Dr Nalini Rao on 29 September 2021.[21] It should be said that it is uncontroversial that Dr Rao of the Mullewa Medical Practice, completed the First WorkCover Certificate (and ones thereafter) and that she considered herself a friend of the Applicant. Included in the First WorkCover Certificate was description of ‘What happened?’, which read:
l.Time in Liew and pay
John has 80 days accrued in overtime accumulated over 3.5 year. He advised management he planned to retire towards the end of the year. he told them his plans about 6 weeks prior. He suggested taking 1 day a week of the accrued time, they told him 2 days a week not open to negotiation. There was a meeting, during which he was told he had to fill out time sheets, he worked there 3.5 years and was not told to fill them out. At a subsequent meeting John told then he would do it from that meeting. They told him he had to do it for previous pays or he will not be paid. John advised then not to pay him and that he would seek advice. They called him back and said they would pay. The issue re pay/time in liew etc is causing immence stress and pressure to John. They
also came out in front of other staff members ( B Hamlett and another new staff) and said " you wont be getting paid your time in liew" implying he would have to take it as 2 days a week for another 40 weeks when he had aklresday advissed them he planned to retire.
2. vehicle
John was told initially that he would have use of a vehicle during work and at weekends to go between Mullewa and Geraldton. Ohter time, as reqired, staff may use it if available. This was the case the last 3 years. Until last evening when he was told via email 29/09/2021" giving you a head up- the girls need the work car for the next 4 days as I need some things I need them to do".These 4 days span over the weekend when John has had access to the vehicle usually.
3. Managerial duties
When John was hired , he was hired as Head Chef. As time went he also did bookings after hours, took payments, cleaned rooms and any and other duties when staff unavailbe. he was never given a management agreement.
email dated sept 13 he was told " I note that you you are still putting down overtime which you then attribute to Toil.
As per my last email, there is no more Toilfor anyone unless it is pre-approved. You are the manager there and therefore do not attract either overtime or Toil because you are not on AWARD but part of
4. All extra time was signed off by representatives of Meedac. They are claiming those people had no right to sign off. This was not communicated to John, he had to do as told when house guests demanding food.
Normal time ( MOn to fri), house guests on the weekends had to be fed and no one to cook and JHohn was told to cook.
He was promised time off " it will balance out" during low season. Due to business demands, this never occured and contributed to his massive overtime owed.
5. John requested copies of the meeting minutes in writing and any discussions, none recived to date.
6. fairwork advised to negotiate with employer. John has tried and is not able to get anywhere.
The Applicant gave evidence that the motel was busy over the weekend of 15 -18 October 2021, so he spoke to Dr Rao on the telephone, informing her that he was feeling better. In his witness statement, the Applicant noted that other staff who were rostered on for the weekend of 15-18 October 2021 were stressed, handed the Applicant the keys for the car and motel, and said to him that they were leaving.[22] The Applicant deemed the situation to be an emergency, he phoned Dr Rao and requested to be allowed to perform light duties; he also called Ms Holdsworth and she purportedly gave him clearance to work.[23]
In respect of the weekend 15-18 October 2021, Ms Holdsworth gave evidence that the Applicant did not follow his doctor’s advice and returned to work earlier than stipulated on his First WorkCover Certificate.[24] At the determinative conference, the Respondent directed attention to another WorkCover WA – Progress certificate of capacity (Second WorkCover Certificate), which stated that the medical assessment had been conducted on 15 October 2021 and had been signed by Dr Rao on 19 October 2021.
The Second WorkCover Certificate stated that the Applicant had some capacity for work from 15 October 2021 to 18 October 2021 performing pre-injury duties and pre-injury hours.[25] Under the title ‘6. Injury Management Plan’, the following was stated verbatim:[26]
Activities/interventions Purpose/goal (likely change in symptoms, function, activity and work participation) was on site on WorkCover. The girls on duty cooking came over upset, handed him the hotel and car keys and departed. John believed they had quit. There were guests in the motel fully booked out. Guests had pre paid including meals.
John rang Rosa the manager and explained the situation, that he had rang the Dr and discussed doing the work for house guests only as it was an emergency.
Rosa said " I guess youtl have to!".
Next communication was for John to attend a meeting on Mond the 18th which he couldn’t attend as he was working. The girls showed upo at work at 11 am so John left and went to Geraldton. He called then to say he could be there for the meetng the next day at 9 am. Got ther 9 am and told to " go away" by Rosa and " come back at 1pm" John then received alegations of hompohobic and racist remarks. He given termination by Textand letter the next day
Under the title ‘7. Next Review Date’, Dr Rao noted that she would review the Applicant on 20 November 2022 and next to ‘Comments’ wrote, ‘Stress levels have increased as a result of baseless allegations’.[27]
Ms Holdsworth stated that she rang the Applicant on 18 October 2021, at 7:30am, and requested that he attend a meeting on this day to discuss allegations against him. Ms Holdsworth said that the Applicant offered up an excuse, told her that he was not coming in, and ended the call abruptly.[28]
Another call was placed to the Applicant on 19 October 2021, to attend a meeting that day.[29] Ms Holdsworth said that on this occasion the Applicant agreed to attend and she informed him that there would be two meetings, one at 1:00pm and the second at 3:00pm.[30]
Ms Holdsworth gave evidence that she did not attend the meeting on 19 October 2021 as she perceived their to be a conflict of interest given that some of the allegations raised with the Applicant concerned her.[31] She therefore arranged for Mr Greaves, the Respondent’s Manager of Community Programs, to run the meeting.
At the determinative conference, Mr Greaves gave evidence that the Applicant attended the meeting on 19 October 2021, as arranged. Mr Greaves said he provided the Applicant with the allegations toward the end of the meeting and informed the Applicant he was to return at 3.00pm, after he had read the allegations and had taken time to respond to them. Mr Greaves said he reminded the Applicant approximately ten times that he should take time to review the allegations and respond. Ms Vanderwal who also attended the meeting gave the same evidence - noting that Mr Greaves reminded the Applicant approximately ten times to take time to respond to the allegations.
The Applicant however, opted to respond to the allegations there and then. Mr Greaves said he did so quite hastily. The Applicant simply denied all allegations, stating that they were untrue, and providing a qualification in respect of allegation 3.
Set out below are the allegations that the Respondent claims were substantiated and relied upon in arriving at the decision to terminate the Applicant’s employment:
Allegation 1
It has been alleged that when either Mr Malloy and/or Ms Holdsworth provided Inspirations Motel employees with instructions and informed them of certain procedures that were coming into effect as soon as they left the premises you advised the employees to forget the instructions they were just given as you are their “boss’ and they will do it your way or no way at all so just ignore what you have been told…
Allegation 2
As an Aboriginal Corporation Meedac takes discrimination and equal opportunity seriously we cannot be seen to employee persons who perpetrate racial discrimination or make fun of others because of their race, colour or sexual preference and persuasion.
It is alleged that you regularly make jokes about an Indigenous employee (Chris) who works at Inspirations. It is alleged that you joke about his culture and his body odour or it was to us the way he smells.
Further it is alleged that you regularly make jokes in the workplace about other nationalities especially if they have a dark skin colour. You have also made jokes about the Lesbian, Gay, Bisexual, Transgender, Queer or Questioning (LBGTQ) Community.
You have previously been spoken to concerning the jokes you make about Chris and the LGBTQ Community as well as others with dark coloured skin yet you continue regardless…
Allegation 3
On Friday, 15 October 2021 whilst on personal leave/workers compensation Ms Holdsworth queried why you were at work when you had been declared as totally unfit for work by your treating Doctor.
You advised Ms Holdsworth that you had called your doctor and she had provided her verbal consent that you were fit to work that day and for the rest of the weekend.
Further you advised Ms Holdsworth with words to the effect of “you’ve got more problems than my certificate. I have things to do” and you ended the conversation by hanging up on her
Ms Holdsworth has requested that you provide a medical certificate from your doctor stating that she had declared you fit to work the following days 15 to17 October 2021 inclusive. You have failed to follow Ms Holdsworth’s instructions and have not provided the required medical certificate…
Allegation 4
On the 18 October 2021 at approximately 7.30AM or thereabouts you received a mobile call from Ms Holdsworth who requested that you attend a meeting with her that day
You refused to listen to Ms Holdsworth and offered up an excuse as to why you would not be attending the meeting requested.
You advised Ms Holdsworth with words to the effect that she “had no right to demand your presence and that you would come in when you could”…
Allegation 5
It has been reported that you told employees that the only reason you are making a workers compensation claim is to get your own back on Ms Holdsworth who you wanted sacked and hoped that in claiming the workers compensation it would result in Ms Holdsworth’s employment being terminated…
Allegation 7
It has been requested of you to provide copies of rosters and menus to management so that management is aware of who is working when they are working and what foods etc are being used. You have failed to provide the requested documents to management.
Ms Holdsworth confirmed that the Applicant did not present for the second meeting at 3:00pm on 19 October 2021. Ms Holdsworth said that it was in that meeting the Applicant was to be told that he would be stood down on full pay whilst the investigation continued and was to be asked if he could show cause as to why his employment should not be terminated.[32] Consequently, the Applicant was sent an email that set out the ‘show cause’ question, advising him he was stood down on full pay.
The Applicant responded by email to the ‘show cause’ email dated 20 October 2021, stating:
Midwest Lawyers Mike Hayter are taking these allegations very seriously after deliberation and consulting with all involved will provide you with a brief. Please contact me with your response. I certainly had no intention of involving Fair Work Ombudsman but you have left me no choice.[33]
Having received the above cited response from the Applicant, Ms Holdsworth said that she sent a text message to the Applicant on 20 October 2021 informing him that his employment had been terminated and a letter of termination would be drafted and sent to him.[34] The Applicant was paid in lieu of notice and a letter of termination was sent to the Applicant on 21 October 2021.
In his submissions, the Applicant also provided to the Commission a second WorkCover WA -First certificate of Capacity, which had been amended by Dr Rao (Amended First WorkCover Certificate). The Amended First WorkCover Certificate now corrected the date on which the Applicant intended to retire:
Addendum 23/02/2022 at Mullewa. Dr NRao Provider no 263639GF: John has advised he was going on leave at the end of the year and was planning on retiring 12 March 2022. Not as stated here that he was retiring by the end of the year. This was an error on my part. All his other statements state correctly, his intention to retire in March 2022.
As can be seen, the amendment to the Amended First WorkCover Certificate was dated 23 February 2022.
For the Applicant’s part, he considered that all the issues that had arisen started because he had asked for TOIL and considered that the TOIL had been promised to him.[35] The Applicant claimed that having asked to have his TOIL, the Respondent informed him that as a manager he would not be paid any of the days that he was owed.[36]
The Applicant gave evidence that he received a phone call from Ms Vanderwal around 11 September 2021, informing him that he had to fill out a timesheet for the last fortnight or he would not be paid.[37] The Applicant said that he told Ms Vanderwal not to pay him and that he was prepared to do timesheets moving forward if he was paid.[38]
The Applicant submitted that the whole process was rushed and flawed. He continued that there was no right to dismiss him, and that there was a serious dynamic to the case in terms of serious defamatory remarks made about him.
Consideration
There is no jurisdictional barrier to the unfair dismissal application being considered and determined by the Commission. It is not in contest, and I am satisfied on the evidence before me, that the Applicant was dismissed, he made his application in time;[39] he was a person protected from unfair dismissal;[40] the Respondent was not a small business employer, and the case was not one of genuine redundancy.[41]
Was the dismissal harsh, unjust or unreasonable?
The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:
.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases, the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[42]
When determining whether an applicant’s dismissal was ‘harsh, unjust or unreasonable’, s 387 of the Act contemplates an overall assessment as to the nature of the dismissal by reference to the factors referred to in that section. It is convenient to use the various factors of s 387 with reference to the relevant circumstances, to outline the reasoning for the decision.
Valid reason for the dismissal
When deciding whether a dismissal was unfair, the Commission is obliged to take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct.[43]
The reasons considered are the employer’s ‘reason(s)’.[44] The Full Bench in B, C, and D v Australia Postal Corporation t/as Australia Post (Australian Postal Corporation) stated:
[34]... In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (e.g. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).
[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.[45]
In summary, where the reason for termination of employment relates to an employee’s capacity or conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is rather, for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct.[46]
My first observation is that there is a striking paucity of direct evidence to support some of the allegations levelled at the Applicant. Similarly, the Applicant has brought little evidence that supports his case with the exception of his bare denials. That is not to say that the Applicant has filed little material – to the contrary. However, much of what has been filed goes little way to assisting the Applicant (character references).
It follows that to a significant extent the matter for decision involves an assessment of the truthfulness of the accounts of the Applicant and Ms Holdsworth, the resolution of competing versions of the facts and the differentiation of truth and falsehood. The credit of the parties clearly comes into play and careful consideration to all the evidence, viewed in its context, and remembered in its detail is required. For the reasons that follow, where there is disparity between the account of Ms Holdsworth and that of the Applicant, I have preferred the evidence of Ms Holdsworth. The Applicant’s own credibility has been severely compromised due to the provision of WorkCover certificates and the evidence of the Applicant and his witness in respect of these.
Tendered into evidence were three WorkCover certificates. For ease of reading these have been defined as the First WorkCover Certificate, the Second WorkCover Certificate and the Amended First WorkCover Certificate. It is the First WorkCover Certificate and its amended version that I turn to first.
After a request for an extension from the Applicant, directions were issued such that the Applicant was required to file his materials by 24 January 2022 and the Respondent was required to file its materials on 4 February 2022. Attached to the witness statement of Ms Holdsworth was the First WorkCover Certificate. The First WorkCover Certificate set out that the Applicant had ‘advised management he planned to retire towards the end of the year. he told them his plans about 6 weeks prior’. The First WorkCover Certificate was signed off by Dr Rao on 29 September 2021.
At the determinative conference, Dr Rao gave evidence that her assessment in that part of the WorkCover certificate was simply replication of the account she had been provided by the Applicant. What had been written by Dr Rao aligned with the evidence of Ms Vanderwal[47] and Ms Holdsworth, namely, the Applicant had informed the Respondent that he was to retire in December 2021. Evidence given by Ms Holdsworth suggests that the Applicant’s retirement date was initially 12 December 2021, but for payroll reasons was moved to 10 December 2021.[48]
It is uncontroversial that a conciliation conference was held on 3 February 2022.[49] Further, at the conciliation conference both parties were informed about s 387 of the Act and the remedies available under Part 3-2. The information provided extended to remedy, compensation and the application of the ‘Sprigg formula’ when determining an amount, if any, of compensation.[50] When conveying information to the parties about the ‘Sprigg formula’, information was provided regarding the Commission considering the anticipated period of employment.
Having discussed in the conciliation conference the factors the Commission takes into account when determining: (a) whether a dismissal was unfair; (b) the appropriate remedy; and (c) compensation, the Applicant provided the Amended First WorkCover Certificate. As noted, the amended certificate included an addendum by Dr Rao, specifically, that Dr Rao had written in error the retirement date and that the Applicant had advised her that ‘he was going on leave at the end of the year and was planning on retiring 12 March 2022.’[51] Dr Rao conceded that she had made an error and again confirmed that the Applicant’s intention was to retire in March 2022.[52]
Succinctly put, I find the evidence relied upon by the Applicant in this respect disturbingly contrived. It seems more than coincidental that on becoming aware that a retirement date in mid-December 2021 could potentially limit an amount of compensation if awarded, that the Applicant had Dr Rao amend the First WorkCover Certificate, after the conciliation conference. Further, it seems highly unusual that the only error made by Dr Rao was that concerning the retirement date. It is concerning that it is not at all apparent on the evidence that the purpose of the amendment was to correct the understanding of any workers’ compensation insurer. As it is, the First WorkCover Certificate whilst amended by Dr Rao as detailed, still only covered the period 30 September 2021 to 8 October 2021 and there was no evidence to show that the Amended First WorkCover Certificate had been submitted to a relevant insurer or entity.
In circumstances where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must however do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture.[53] It must be a conclusion that is available as a reasonable and definite inference on the primary facts and be more probable than any alterative explanation proffered for what is occurring.[54]
In my view, the sequence of events, as detailed, lead to the inevitable conclusion that the Applicant had Dr Rao amend the First WorkCover Certificate for the purpose of these proceedings, such that if he were successful with his unfair dismissal application and compensation was awarded by way of remedy, the date of March 2022 would be considered in determining the anticipated period of employment.
The Applicant tendered into evidence handwritten notes at page 149 of the Court Book, which read:
Matter details – Respondent – Meedac Inc.
Rep Paul King
Date of conference on hearing
…
6A Remedy – as said and agreed – retirement would be in March – the date change occurred because of a mistake on medical certificate notice by Meedac.
At the determinative conference, the Applicant was asked when he discovered the alleged mistake made by Dr Rao, whilst the Applicant referred to his state of mind at the time of his dismissal, in brief, his response was abstruse. In my view, the Applicant manipulated his evidence so as to establish the utility of his case in respect of remedy.
It might well be considered inappropriate to question the credibility of the progenitor of the WorkCover Certificates. However, as I have drawn the abovementioned inference this does by implication reflect upon the credibility of Dr Rao. I do not doubt, as Dr Rao purported, that she is a busy general practitioner in a remote rural community. However, I make the following observations.
First, the account provided in the First WorkCover Certificate under ‘What happened’ appears to be a mere replication of what has been said by the Applicant to Dr Rao – Dr Rao conceded as much. Second, the clinical findings in that same WorkCover Certificate detail that the Applicant was ‘[E]mbarrassed as he was told things in fromnt [sic] of subordinates’ (italics my emphasis). Dr Rao makes the clinical finding based only on the input of the Applicant, and assumes his account to be accurate.
Third, the Second WorkCover Certificate was issued in circumstances where the Applicant admits he phoned Dr Rao on or around 15 October 2021, informed her he was feeling better, and thereafter Dr Rao assessed him as fit for some capacity for work during the period of 15 to 18 October 2022. The Second WorkCover Certificate is dated 19 October 2022 some four days after deeming the Applicant fit for work for a set period. However, at section six, under the title ‘Injury Management Plan’, Dr Rao has written about events that unfolded on 20 October 2022, the day after the assessment:
Next communication was for John to attend a meeting on Mond the 18th which he couldn’t attend as he was working. The girls showed up at work at 11 am so John left and went to Geraldton. He called then to say he could be there for the meetng the next day at 9 am. Got ther 9 am and told to " go away" by Rosa and " come back at 1pm" John then received alegations of hompohobic and racist remarks. He given termination by Text and letter the next day.[55]
Ms Holdsworth gave evidence that the Applicant returned to work early on 15 October 2021, albeit that he was not certified as being fit. Ms Holdsworth states that the Applicant informed her ‘don’t worry I will get my doctor to change that’.[56] I believe Ms Holdsworth’s account when she says the Applicant informed her that his doctor would change his fitness status.
In the present case, a reasonable and definitive inference can be drawn that Dr Rao was most amenable to assisting the Applicant, as the Applicant saw fit. Dr Rao appeared malleable and undiscerning when it came to the assessments of the Applicant. Dr Rao’s notes about the Applicant are for the most part an apparent adoption of his rhetoric – to the point where she makes claims that the Applicant’s ‘[S]tress levels have increased as a result of baseless allegations’.[57]
Turning to the reasons as to why the Applicant was dismissed, the letter of termination of 21 October 2021 detailed that the Applicant had:
a) continually refused to carry out lawful and reasonable instructions that were consistent with your contract of employment;
b) continually failed to follow Company policies and procedures that are or were in place at the time;
c) actively encouraged other employees to disregard Company policies and procedures; and
d) behaved in a discriminatory way.
An employer clearly has authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable.[58] In R v Darling Island Stevedoring and Lighterage Co Ltd; Ex part Halliday,[59] (Darling Island Stevedoring) it was held:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.
The Full Bench in Briggs v AWH, stated that the determination of whether an employer’s direction was a reasonable one did not involve an abstract or unconfined assessment as to the justice or merit of the direction.[60] The employer, therefore, is not required to demonstrate that the ‘direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties’.[61] Adopting the approach identified in Darling Island Stevedoring, the Full Bench cited Dixon J, quoting:
But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.[62]
Plainly in this case, Ms Holdsworth had issued directions regarding the completion of timesheets.[63] At the determinative conference, she detailed that the Applicant had been non-compliant with these directions and was submitting timesheets absent the requisite detail and the timesheets included overtime, which the Applicant was claiming as TOIL notwithstanding it not having been pre-approved.[64] I do not disbelieve Ms Holdsworth in this respect.
Furthermore, I believe Ms Holdsworth’s evidence when she states that:
a) on 18 October 2021, the Applicant was instructed to attend a meeting on that day but proffered an excuse and hung up the phone on Ms Holdsworth;
b) on 15 October 2021, Ms Holdsworth queried why the Applicant was at work when declared as totally unfit for work by his treating doctor, requested a medical certificate, and was informed to the effect of ‘you’ve got more problems than my certificate. I have things to do’ and ended the conversation by hanging up on her;
c) she scheduled a meeting with the Applicant on 7 September 2021, but the Applicant failed to attend the meeting absent any contact to advise he would not be in attendance;[65] and
d) that a meeting with Mr Malloy and the Applicant, the Applicant placed his hand in front of Ms Holdsworth’s face and declined to listen to her.
Based on the evidence of Ms Vanderwal, Ms Holdsworth and the Applicant, I don’t doubt that the Applicant conversed with Ms Holdsworth in a disrespectful manner, was non-compliant with instructions to attend two meetings, and hung up the phone on Ms Holdsworth on two occasions. This is, and of itself is, sufficient to find that the Respondent had a valid reason for the Applicant’s dismissal. The Applicant was obliged to comply with the abovementioned directions issued by Ms Holdsworth; directions, which in my view, were lawful and reasonable. Further, there was no excuse for his discourteous conduct.
On 14 September 2021, Ms Holdsworth issued directions to the Applicant to complete timesheets with a clear start, meal break and finish time and on 13 September 2021 she addressed the Applicant’s recording of overtime which had been attributed to TOIL. During the determinative conference, the Applicant corrected Ms Holdsworth observing that he had in fact submitted timesheets and Ms Holdsworth agreed. However, it was evident that the Applicant did not cavil with the point that he had not completed the timesheets inclusive of the correct content as directed by Ms Holdsworth. I find that again the Applicant failed to follow Ms Holdsworth’s lawful and reasonable direction on this issue.
It is of course accepted that the employer bears the evidentiary onus of proving that the conduct on which it relies took place, and while the Commission is not bound by the rules of evidence and procedure in relation to a matter before it,[66] it does, however, tend to follow the rules of evidence as a general guide to good procedure.[67]
Regarding Allegations 1, 2, 5 and 7, I make the following observations and findings.
In respect of Allegation 1, apart from Ms Holdsworth’s global account that this occurred, there are scant particulars to substantiate the claim, there is no direct evidence in the form of written complaint or grievance, and no witnesses were called to give corroborating evidence.
Concerning Allegation 2, while Ms Holdsworth spoke of the incident regarding ‘Michelle’, and Ms Vanderwal also made mention of an incident regarding alleged racial slurs made by the Applicant,[68] there is no direct evidence to substantiate Michelle’s account and no witnesses were called to speak to their experiences with the Applicant. However, I am persuaded by Ms Holdsworth’s account that in her discussion with the Applicant he made remarks that disparaged certain employees on the basis of their ethnicity and sexual orientation (see paragraphs [5], [8], [10] and [11] of this decision). Notwithstanding, it appears that such misconduct had been addressed by Ms Holdsworth with the Applicant. Allegation 2 sets out in respect of the Applicant’s behaviour ‘yet you continue regardless…’. It is difficult to discern the particular acts the Applicant has subsequently engaged in.
There was no evidence before me to make a finding regarding Allegation 5. The allegation was barely, if at all, referred to during the course of the determinative conference.
Similarly, with respect to Allegation 7, while there was reference to requests having been made to the Applicant for rosters (of other staff) and menus. The Respondent adduced no direct evidence to support such contention, and no particulars were provided as to when the requests occurred. Ms Holdsworth gave evidence that the Applicant was responsible for staff working in the kitchen – therefore it is difficult to conceive that he held responsibility for checking the rosters of all staff at the motel. Furthermore, given the Applicant’s employment history with the Respondent, it was difficult to discern whether the alleged conduct had occurred through the duration of his employment, or whether at one stage a direction was provided to the Applicant, which he latterly failed to comply with.
While the Applicant has provided multiple character references, which appear to have been garnered for a dual purpose – this application, and to obtain future employment, those character references do not assist this Commission in respect of determining whether there as a valid reason for his dismissal. Furthermore, whilst the Applicant has given his opinion about Ms Holdsworth’s attitude towards him – it is simply that, an opinion.
The Applicant called Mr Chris Barry to give evidence. Mr Barry conceded that he had lost his job with the Respondent. When Mr Barry provided his evidence, he quickly became highly emotive. It was evident that Mr Barry was angry with Ms Holdsworth. Mr Barry’s evidence was scant on detail and effectively bordered on hyperbolic accusations of racism before he dramatically stormed out of the witness box – leaving the MS Teams call. Accordingly, his evidence did not support the Applicant’s case.
Based on my factual findings, of which I am more than comfortably satisfied on the balance of probabilities, I consider that the Respondent had a valid reason to dismiss the Applicant. His behaviour was patently unacceptable and constitutes a valid reason for dismissal.
Notification of the reason and an opportunity to respond
At a general level, the case law makes it plain that when it comes providing an opportunity to respond, the process does not require any degree of formality, and that the requirement is to be applied in a practical way in order to ensure that the employee is treated fairly.[69]
It is accepted that where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.[70] The notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, and in explicit and plain and clear terms.
Turning to whether the Applicant was afforded an opportunity to respond to the allegations and to ‘Show Cause’ why he should not be dismissed, I consider that the Applicant was notified of the reasons for dismissal and was given an adequate opportunity to respond to such reasons.
Whilst the Applicant detailed having been provided with limited time in which to respond to the allegations set out in the letter of 19 October 2021, I believe Mr Greave’s account that the Applicant responded to the allegations when presented to him with bare denials and thereafter did not present to the meeting at 3:00pm on 19 October 2021, to discuss his responses.
The Applicant does not quarrel with such an account – albeit he notes that he took the allegations seriously and sought to obtain legal advice. However, at no time did the Applicant request additional time in which to respond, and his response to the ‘Show Cause’ email from Ms Holdsworth failed to address that which was asked of him.
Support person
It is not evident from Ms Holdsworth’s evidence that she informed the Applicant that the purpose of the meetings on 19 October 2021 were to firstly respond to allegations and secondly to possibly consider a disciplinary outcome. Any consideration of whether the Applicant was unreasonably refused the presence of a support person must, in my view, appreciate the point that the Applicant was disadvantaged by his lack of knowledge about the purpose of the meetings. I have given due consideration to this point when arriving at my decision.
Warnings about unsatisfactory performance
As will be evident from the background material, it was not the case that the Respondent sought to rely upon unsatisfactory performance to justify dismissing the Applicant. I am satisfied that the Applicant’s dismissals arose from his failure to comply with the lawful and reasonable directions provided by Ms Holdsworth on behalf of the Respondent.
Size of the Respondent’s enterprise and dedicated human resource specialists
The Respondent business is of a reasonable size, employing or engaging more than a couple of hundred workers. It has its own internal human resources expertise. While the Applicant argued that there were procedural failings in the investigative process, it is noted that the Applicant’s own actions appeared to have cut short the investigative process when he provided bare denials in respect of the allegations and declined to present for the meeting at 3:00pm on 19 October 2022. In all circumstances, I do not consider that the size of the Respondent business or its internal human resources capability, impacted upon the process followed.
Any other matters considered relevant
The formulation of ‘harsh, unjust or unreasonable’ calls for an assessment of the gravity of the conduct alleged as the valid reason and assessment of the proportionality of the sanction of dismissal against that conduct, having regard to the fairness of the process leading to dismissal and the consequences for the employee.
As noted at paragraph [84] of this decision, the Applicant considered that the investigative process into his misconduct was procedurally flawed – a point that I have addressed.
I have also taken account of the Applicant’s view that all allegations against him had their impetus from him asking for the payment of his TOIL, which he considered was promised to him.[71] However, I am unpersuaded that the Respondent took the action that it did because of a purported amount of TOIL owed to the Applicant. Instead, I have found that the action taken by the Respondent was because of the Applicant’s refusal to comply with reasonable and lawful directions provided by Ms Holdsworth on behalf of the Respondent.
I appreciate that the Applicant was in the vicinity of his sixties and that he lived in a regional area of Western Australia which may impact his ability to attain further work. However, I also note that Geraldton (where the Applicant resides on a yacht) cannot be characterised as a town supported by only a handful of businesses.
Furthermore, I am unconvinced as to the significant financial impact of the Respondent’s decision to dismiss the Applicant. On this point, I consider the Applicant was paid in lieu of notice and that the Applicant’s assertion of an intent to retire in March 2022 was a recent invention and the plausible account was that he intended to retire in December 2021.
The Commission’s role is not to consider what it would have done, had it been in the position of the employer. Rather, it must consider whether the dismissal was harsh, unjust or unreasonable, taking into account all of the circumstances. The decision to dismiss the Applicant was a significant sanction; but it was not unjust or unfair, and in my view, it was not harsh. The Applicant understood what was required of him by the directions given by Ms Holdsworth – his failure to comply with those directions left him open to sanction.
Conclusion
Having taken into account each of the matters specified in s 387, I am satisfied that the Respondent had a valid reason for dismissing the Applicant based on his conduct. In my view, the Applicant’s dismissal was not ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. It follows that the Applicant’s dismissals was not unfair. Accordingly, I am obliged to dismiss the application and an Order[72] to that effect will issue in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
Mr J. Bell for himself;
Ms R. D’Elia Holdsworth for the Respondent.
Hearing details:
Tuesday 5 April 2022 (video hearing)
Final written submissions:
12 April 2022.
[1] Witness Statement of Ms Rosa D’Elia Holdsworth [5] (Holdsworth Statement).
[2] Ibid.
[3]B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWFB 6191,[42] (Australian Postal Corporation).
[4] Ibid.
[5] Holdsworth Statement (n 1) [10].
[6] Ibid.
[7] Ibid.
[8] Ibid [11].
[9] Ibid [14].
[10] Ibid [15].
[11] Ibid [16]-[17].
[12] Ibid [6].
[13] Ibid [19].
[14] Ibid [25].
[15] Ibid [26].
[16] Ibid [20].
[17] Ibid [34].
[18] Ibid [36].
[19] Ibid [31].
[20] Ibid [32].
[21] Court Book 228.
[22] Witness Statement of Mr John Bell in Reply, [17.5] (Bell Reply Statement).
[23] Ibid.
[24] Holdsworth Statement (n 1) [37].
[25] Court Book Page 172.
[26] Ibid.
[27] Ibid.
[28] Holdsworth Statement (n 1) [38].
[29] Ibid [39].
[30] Ibid.
[31] Ibid [40].
[32] Ibid [44].
[33] Ibid annexure RH-4.
[34] Ibid [50].
[35] Bell Reply Statement (n 22) [8].
[36] Ibid [9].
[37] Ibid [11A].
[38] Ibid.
[39] Fair Work Act 2009 (Cth), s 394(2).
[40] Ibid s 382.
[41] Ibid s 385(d).
[42] (1995) 185 CLR 411, 465.
[43] Fair Work Act 2009 (Cth), s 387(a).
[44] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033, [25], quoting Australian Postal Corporation (n 3) [34].
[45] Australian Postal Corporation (n 3)..
[46] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[47] Witness Statement of Ms Jodie Vanderwal [10] –[11] (Vanderwal Statement).
[48] Holdsworth Statement (n 1) [32].
[49] [2022] FWC 563 [70].
[50] Ibid [71].
[51] Court Book 128.
[52] Ibid 128.
[53] Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[2013] FWCFB 7736, [21], quoting Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, [24]-[25] Tagdell JA.
[54] Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[2014] FWCFB 657,[63].
[55] Court Book Page 173.
[56] Holdsworth Statement (n 1) [37].
[57] Court Book page 173.
[58] (1938) 60 CLR 601, 621-2 (Darling Island Stevedoring).
[59] Ibid.
[60] [2013] FWCFB 3316, [8].
[61] Ibid.
[62] Darling Island Stevedoring (n 58) 622.
[63] Court Book 147.
[64] Ibid 141..
[65] Holdsworth Statement (n 1) [34].
[66] Fair Work Act2009 (Cth), s 591.
[67] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213,[61]-[62].
[68] Vanderwal Statement (n 47) [8].
[69] Royal Melbourne Institute of Technology v Asher[2010] FWAFB 1200, [26].
[70] Ibid; Osman v Toyota Motor Corporation Australia Ltd PR910409; Gibson v Bosmac Pty Ltd (1995) 60 IR 1; Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
[71] Bell Reply Statement (n 22) [8].
[72] PR740486.
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