John Mahoney v Ossa Services Pty Ltd T/A Ossa Services
[2016] FWC 4595
•12 JULY 2016
| [2016] FWC 4595 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Mahoney
v
OSSA Services Pty Ltd T/A OSSA Services
(U2016/4776)
COMMISSIONER BISSETT | MELBOURNE, 12 JULY 2016 |
Application for relief from unfair dismissal – no valid reason – Applicant unfairly dismissed.
[1] Mr John Mahoney has made an application seeking relief from unfair dismissal. He was employed by OSSA Services Pty Ltd T/A OSSA Services (OSSA) and his employment was terminated on 1 February 2016 for engaging in conduct designed to seriously undermine OSSA, senior management and staff.
[2] At the commencement of the hearing of the application, OSSA sought permission to be represented by a lawyer. I found that it would be unfair not to allow OSSA to be represented as it was unable, given its size and lack of human resource expertise, to effectively represent itself and determined to exercise my discretion and allow OSSA to be represented.
[3] Mr Nick Tinldey represented OSSA. Mr Mahoney represented himself.
Background
[4] Mr Mahoney was on personal (sick) leave from OSSA from 9 September 2015.
[5] Mr Mahoney made a WorkCover claim that was ultimately successful.
[6] On 17 December 2015 OSSA wrote to Mr Mahoney via his lawyer. That letter said that:
It is alleged that on Tuesday, 15 December 2015 Mr. Mahoney contacted our employee Tamara Cazzulino and proceeded to disparage OSSA Services, Managing Director Peter McConville and myself in the following way:
● Stated I was a bully and had regularly made female members of staff cry.
● Stated that Angela Jolly regularly failed to perform her job.
● Stated that he had been regularly targeted and bullied by myself for poor performance, when he was not to blame.
● Stated that I had ceased making payments for personal leave as a form of retribution…
● Stated that OSSA lost a key client account (Beaurepaires) because of my actions…
We ask you to immediately direct your client to cease and desist from making further disparaging remarks to members of our staff. 1
[7] The letter demanded a response by 5.00pm on Monday, 21 December 2015. It was signed by Ms Leah McConville.
[8] Mr Mahoney’s lawyer replied by letter on 21 December 2015. That letter said that the correspondence of 17 December was improper as Ms McConville had a conflict of interest because she was subject to bullying allegations by Mr Mahoney; nothing in the letter gave raise to grounds for summary dismissal; comments made by Mr Mahoney to Ms Cazzulino were in response to questions asked and proceedings against Mr Mahoney would be ‘vigorously defended.’ 2
[9] This reply letter was sent by email and post.
[10] On 1 February 2016, a further letter was sent from OSSA to Mr Mahoney’s lawyer. That letter said, in part:
On 17 December 2015 we wrote to you, as Mr. Mahoney’s representative in relation to his employment, and sought his response to our allegation that he had breached his duty and fidelity and good faith by engaging in conduct designed to seriously undermine OSSA Services, senior management and other members of staff. This response was required, in writing, prior to 5pm on Monday, 21 December 2015 so that we could consider it prior to making a decision on Mr. Mahoney’s ongoing employment.
As of today’s date, Monday, 1st February 2016, we have not received a response from you or your client. We feel that there has been more than sufficient time for you or your client to respond to us. Having asked you to immediately direct your client to cease and desist from making any further disparaging remarks we have become aware that, since our letter to you, your client has contacted key clients of OSSA Services. In these further communications your client has further disparaged management and the business.
In addition to your client’s relentless breach of the duty of fidelity and good faith he owes to OSSA Services, despite our warnings, he has also breached the confidentiality provisions of his employment contract. In light of your client’s actions, and the damage he continues to cause our business, we notify you and your client that his employment is summarily terminated. 3
Evidence and submission of Mahoney
[11] Mr Mahoney stated that he was absent from work on WorkCover when his employment was terminated. His WorkCover claim was accepted on 23 December 2015. 4 Mr Mahoney says that he understood that, as long as he met the requirements of WorkCover, he had to be employed by OSSA for 52 weeks – that is he understood that his employment could not be terminated within the 52 week period.5
[12] Mr Mahoney says that on 17 December 2015 his lawyer received a letter from OSSA in which it was said he had made disparaging remarks about OSSA. His evidence is that his lawyer both emailed and posted a reply letter to OSSA, although he agrees that the email address was incorrect.
[13] Mr Mahoney says that there was no process or warnings given and no performance management prior to his dismissal.
[14] Mr Mahoney says that many of his work contacts were also personal friends. 6 He denies making the disparaging remarks he is accused of making but does say that he spoke to colleagues or work contacts who were also friends about his situation. Some of this contact he initiated and some were initiated by others. He says he told some people that he was off on WorkCover due to bullying and harassment at work7 ‘on a few occasions.’8
[15] Mr Mahoney says that after he changed his mobile phone number (once his work phone was taken back) he transferred all of his contacts to his new phone and he put his new phone number onto his Facebook page. This is how people would have contacted him.
[16] In relation to the individuals he is said to have spoken to Mr Mahoney says:
● he had a conversation with Robert Powell but says this was in relation to whether Mr Powell had any work for OSSA. 9 He has not contacted Mr Powell since he ceased work. If Mr Powell did call him on his work phone it was probably in response to a call made to him whilst Mr Mahoney was working.10
● He had a conversation with Mr Eamonn McGettigan. He says he and his partner went to Bendigo and had dinner with Mr McGettigan and then visited him the next day and had coffee with him and gave him an invitation to their wedding. He says this occurred in January 2016. 11
● He spoke to Mr Ben Veal prior to going on sick leave form OSSA who said to him ‘You need a rest from OSSA’. 12 He rang Mr Veal to give him his new phone number but cannot recall telling him he was on WorkCover.13
● Mr Chris Iacappino is a good personal friend as well as a client of OSSA. When OSSA took back his work provided mobile phone he got a new phone, transferred his contacts across and contacted a number of people to give them his new number. Mr Iacappino was one of the people he contacted. 14
● He contacted Mr Nathaniel Brooks to give him his new number. He says Mr Brooks is a friend. He says he told him when asked if he was still at OSSA that it was unlikely he would return to work with OSSA as he ‘had a major disagreement with Leah [McConville]’ 15 and that he was on WorkCover because of bullying and harassment.16 He said that Mr Brooks told him he had had a ‘big blue’ with OSSA and was unlikely to work for them again.17
● He had contact with Mr Neil Middling and went to see him to assist with work matters at the time he was absent from work on sick leave. 18
● Mr Gordon McVitie is a really good friend. He sees him up to four times a week. 19 He says that ‘Gordon knew for months and months and months, what was going on with Leah’20 with respect to his WorkCover claim.
● He missed a call from Ms Tamara Cuzzalino in November 2015 and that he received a text from her while she was in Bali. He says that when he spoke to her she asked him how he was and other questions and he answered those. 21
● Mr Neil Chalmers gave him advice on what to do, was aware of his WorkCover claim and insists that he knew of its status through the WorkCover insurer. In any event, he says that Mr Chalmers was a friend. 22
● He said to Ms Jenny Demarti he had ‘had a gutful and I’m going to leave’ and that he was stressed out because of Ms McConville. 23 This was prior to going on sick leave. Ms Demarti is a client of OSSA. He says that Ms Demarti was also a friend who confided in him.24
[17] With respect to Mr Brett Skinner, Mr Mahoney denies that he asked Brett Skinner for money although he may have sent him his bank account details as a joke. 25 Mr Mahoney says he rang him the week before the hearing and Mr Skinner told him he was not going to get ‘dragged into any of this crap. They’re trying to drag me in. I’m not getting caught in it all.’26
[18] Mr Mahoney agrees that he had difficulties in the past with Ms McConville. In 2014, following some difficulties with her, Mr Mahoney sent an email to Mr Peter McConville in which he said ‘maybe this job is not the job for me.’ 27 He agrees that, following a discussion between him and Ms McConville she emailed him setting out the outcomes of the meeting to which he replied ‘I’m really glad you are still my besties.’28 Mr Mahoney does not agree that this matter was satisfactorily resolved between he and Ms McConville.29
[19] Mr Mahoney agrees that he did not like Ms McConville 30 but says that his evidence is not coloured by this dislike.31 He says that following the resolution of matters in 2014 he did not raise issues with Ms McConville as to how she dealt with him as he felt it was a waste of time.32
[20] Mr Mahoney says he maintained a good relationship with Ms McConville through 2015 and asked Mr and Ms McConville for a loan in July 2015 although maintains that Ms McConville was not involved in discussions about the loan 33 even though the request for the loan had been sent by email to both Mr and Ms McConville.34
[21] Mr Mahoney provided the Commission with unsworn statements from Mr Daryl Ancrum 35 and Mr Peter Dalby.36
Evidence and submissions of OSSA Services
Mr Peter McConville
[22] Mr McConville is the General Manager of OSSA.
[23] Mr McConville says that subsequent to Mr Mahoney going on personal leave in September 2015, he ‘was informed on a number of occasions by Leah [McConville] and other clients and contractor representatives that John [Mahoney] had made contact with OSSA employees, clients and service providers, again making derogatory comments.’ 37
[24] Mr McConville says that following the letter of 17 December 2015 being sent to Mr Mahoney, he became aware that Mr Mahoney had been in individual contact with Mr Robert Powell, Mr Eamonn McGettigan, Mr Ben Veale, Mr Chris Iacappino, Mr Nathaniel Brooks, Mr Neil Meddling, Mr Gordon McVittie and Mr Scott Lafferty, clients of and/or contract service providers to OSSA, and had discussed his employment situation with them and made derogatory comments about OSSA. 38
[25] Mr McConville says that soon after he became aware of Mr Mahoney making derogatory comments he directed Mr Mahoney to return his work phone.
[26] Under cross-examination, Mr McConville says that he did not speak directly to Mr Iacappino, 39 Mr McVitttie or Mr Lafferty,40 Mr Middling,41 or Mr Powell.42 Rather, he says that he ‘put down the different instances on behalf of the company…so I’m saying what I was told.’43 Mr McConville does not say he spoke to Mr Brooks or to Ms Cazzulino.44
[27] Mr McConville’s evidence is that he spoke to Mr Chalmers who said that Mr Mahoney had said he was off ‘on bullying and harassment from OSSA.’ 45
[28] Mr McConville says that he had contact with Mr Veal in October 2015 who said Mr Mahoney had contacted him and said he was on stress leave from OSSA. 46 On 11 May 2016, Mr McConville then sent an email to Mr Veal to ‘get confirmation from clients [he] had spoken to’.47 Mr McConville asked Mr Veal to let him know when he had last had contact with Mr Mahoney. Mr Veal responded that he had spoken to Mr Mahoney ‘a few times in mid-October last year regarding his situation at OSSA.’48 Mr McConville then sought ‘confirmation that [Mr Mahoney] rang you...he mentioned he was on workcover stress leave because of issues at OSSA’.49 Mr Veal replied that ‘[h]e did mention being on stress leave…’50
[29] Mr McConville says that whilst there would be a lot more evidence of complaints from clients about contact by Mr Mahoney, it was not possible to ‘harass the clients to send this, send that.’ 51
[30] Mr McConville says that he made the decision to terminate Mr Mahoney’s employment on 1 February 2016. He says that a few days before this, he became aware that Mr Mahoney had been in contact with Mr Neil Chalmers, an important client of OSSA, and told him that he was pursuing a workers’ compensation claim against OSSA for bullying and harassment. Mr McConville says that Mr Chalmers said that Mr Mahoney had said he was going to make OSSA pay because of the personal vendetta of Ms McConville towards him. 52
[31] Mr McConville says that in deciding to terminate Mr Mahoney’s employment, he took into account that Mr Mahoney had been asked to respond to allegations that he had disparaged Ms McConville and OSSA and had been asked to desist. He also took into account that Mr Mahoney had not responded to the letter of 17 December 2015 and had continued to disparage the business.
[32] Mr McConville said he had not received the email reply to the letter of 17 December 2015 and only received a copy in the post a few days after the letter of termination was sent. He says that the reply was backdated. 53
Ms Leah McConville
[33] Ms McConville is the Business Development and Project Manager at OSSA.
[34] She says that in September 2015 Mr Mahoney went on stress leave. On 30 September 2015 she received a letter from Mr Mahoney’s lawyer requesting that all correspondence with Mr Mahoney be sent through him. 54
[35] Mr McConville says that in December 2015 Ms Cazzulino, an employee of OSSA, contacted her and said that during a conversation with Mr Mahoney he had made a number of derogatory comments about OSSA and about Ms McConville. This included that Ms McConville was a bully and made female staff members cry, that Ms McConville had bullied him, that Ms McConville had stopped personal leave payments to him in retribution and that Ms McConville’s actions had led to the loss of a contract. 55 Ms McConville says she was not aware that Mr Cazzulino had initiated contact with Mr Mahoney.
[36] Ms McConville says that she was disappointed that Mr Mahoney was discussing ‘sensitive and confidential matters’ with other staff so wrote to him requesting he desist. 56 She says she did not receive a response to the letter.
[37] Ms McConville says that subsequent to sending this letter she became aware that Mr Mahoney had discussed similar matters with ‘key clients, service providers and employees of OSSA.’ 57
[38] Ms McConville says that she spoke directly to Mr Brooks who said Mr Mahoney told him he was on WorkCover as a result of bullying and he intended to resign. 58 She says she also spoke to Mr Iacappino who said that Mr Mahoney had contacted him in October 2015 and wanted to quote on work for him.59 She has no record of the conversation with Mr Iacappino.60
[39] Ms McConville says that she received an email from Mr Lafferty on 22 December 2015 asking that she make contact with him. When she called him, he said he had been on site when Mr Mahoney was talking to Mr McGettigan. Mr Mahoney told Mr Lafferty that ‘he was on workcover and was going to fiercely pursue Ossa [sic] for compensation.’ 61
[40] Ms McConville also says that in January 2016 she received a call from Mr Powell who said he was returning a call from Mr Mahoney about possible work with transurban. 62
[41] Ms McConville says that on 29 May 2015 she was advised by Mr McCartin of OSSA that he had been told by Mr Brett Skinner that Mr Mahoney had requested a payment from him for giving him work. Mr Skinner told Mr McCartin that he had received a text message from Mr Mahoney containing his bank account details. She says that she reviewed Mr Mahoney’s mobile phone records and found he had sent a text message to Mr Skinner on the night of 27 November 2015. 63
[42] During questioning by Mr Mahoney, Ms McConville says that she also spoke to Mr Skinner who confirmed with her that Mr Mahoney had requested money in exchange for work and had provided his bank account details to Mr Skinner. 64 Whilst Ms McConville produced mobile phone records which show Mr Mahoney texted Mr Skinner on 27 November 2016, she did not have the content of the text message.65
[43] Ms McConville agrees that Mr Mahoney’s employment was terminated whilst he was on WorkCover. She says that the letter of 17 December 2015 served as a warning that Mr Mahoney not discuss such issues and no response was received. 66
Mr Shane McCartin
[44] Mr Shane McCartin is the Manager of the Building and Design Department at OSSA.
[45] Mr McCartin says he does not know Mr Mahoney, having commenced at OSSA after Mr Mahoney went on leave.
[46] He says that on 27 May 2016 he had lunch with Mr Brett Skinner. He says the purpose of the meeting was a general catch up and that, over lunch, Mr Skinner said words to the effect that Mr Mahoney ‘was a fucking crook and that he wanted bribes from them [Mr Skinner], and that [Mr Mahoney] had sent to him by text message his bank details so that they could make payment.’ 67 He says he then sent details of this conversation to Ms McConville by text message on 28 May 2016.68
Mr Brett Skinner
[47] Mr Skinner is a Director of Andy Andersons Industrial Services Pty Ltd. He says that, during the course of a discussion with Mr Mahoney, around November 2014 Mr Mahoney said ‘words to the effect that we needed to look after him for getting us the work.’ 69
[48] Mr Skinner says he did not mention the matter to anyone at OSSA ‘until a week or so ago’. He also says that Mr Mahoney rang him on 31 May 2016 asking if he had spoken to OSSA. Mr Skinner says he told Mr Mahoney he did not want to get involved any further. 70
Treatment of the evidence
[49] At the conclusion of the evidence in these proceedings I advised the parties that, whilst some untested statements (where no one appeared to give evidence) had been marked as exhibits, there was a real question as to how much weight should be given to these.
[50] Much of the evidence relied on in relation to what Mr Mahoney is alleged to have said to clients or service providers or employees of OSSA is heresay. Only in very limited circumstances is the evidence given by a person who was actually party to a conversation (eg. Mr Skinner and Mr McCartin).
[51] For this reason, I have given little weight to evidence of the type given by Ms McConville of what someone told her Mr Mahoney had said to them. There is no attempt to recall the actual conversation she had with such a person or the actual conversation that person is said to have had with Mr Mahoney. The evidence in this respect is no more reliable than a game of whispers. I am not suggesting that Ms McConville or Mr McConville are deliberately misleading the Commission, but it is impossible for Mr Mahoney to test the evidence in respect of conversations he is alleged to have had. This is reflective of Mr Mahoney’s constant call for ‘further and better particulars’ 71 of the allegations or what he is said to have said. It also makes it impossible for the credibility of the witnesses to be determined.
[52] Such material would not be admitted were the rules of evidence strictly applied. That the Commission is not bound by the rules of evidence however does not mean that material that is not direct evidence, particularly given the allegations that have been made against Mr Mahoney, should be given any substantial weight. Ultimately, the decision I reach must have some evidence to support it.
[53] I have not relied on the written statement made by Ms Tamara Cazzulino. She provided a statement but did not attend to give evidence. No reason was given as to her non-attendance. Her evidence is critical because it appears to have been the catalyst for the ultimate decision to dismiss Mr Mahoney. Mr Mahoney contests her evidence. Without hearing from her, it is not possible to reach any conclusion as to which evidence should be preferred.
[54] I have not taken into account the email of Mr Darrell Ancrum. 72 It is not relevant to the matter I have to decide.
[55] I have not had regard to the email of Mr Peter Dalby 73. This material goes to the conduct of Ms McConville in the workplace and is, perhaps, more relevant to Mr Mahoney’s workers’ compensation matter. In any event, Mr Dalby did not attend and give evidence, such that his claims could be tested.
[56] I have not had regard to the email from Mr Gordon McVittie. 74 The statement of Mr McVittie is a result of an invitation from Mr Mahoney to say what he did. It is not reliable.
Was Mahoney unfairly dismissed?
[57] I am satisfied that Mr Mahoney is protected from unfair dismissal. I am also satisfied that he has been dismissed, his dismissal was not a result of redundancy and that the OSSA is not a small business such that the small business fair dismissal code would apply.
[58] In determining if Mr Mahoney was unfairly dismissed, it is therefore necessary to determine if his dismissal was harsh, unjust or unreasonable.
[59] Section 387 of the Act sets out those matters to be considered in considering if the dismissal was harsh, unjust or unreasonable:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[60] I now consider each of these.
A valid reason for dismissal relating to conduct
[61] For a reason for dismissal to be valid it must be ‘sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason…’ 75
[62] Mr Mahoney’s employment was terminated because Mr McConville considered his conduct ‘in disparaging OSSA and its senior employees to clients, other employees and service providers amounted to serious misconduct.’ 76
[63] As the issues in dispute go to the question of Mr Mahoney’s conduct it is necessary that, as a first step in deciding if it forms a valid reason for dismissal I determine if, on the balance of probabilities, the conduct occurred. 77
Disparaging OSSA and its senior managers to other staff
[64] There is no evidence before the Commission that Mr Mahoney disparaged OSSA and its senior employees to employees of OSSA beyond Ms Cazzulino. Ms Cazzulino, whilst having made a statement in these proceedings was not available for cross-examination. Her statement cannot be relied upon. Mr Mahoney disputes her statements and had a right to test the evidence against him but was unable to do so. No reason was given for Ms Cazzulino’s non-attendance.
[65] Mr McConville’s evidence is only of what is said in Ms Cazzulino’s statement and is of no benefit in deciding if the conduct occurred. He did not talk to her.
[66] Ms McConville’s evidence is that Ms Cazzurino told her certain things. Without the direct evidence of Ms Cazzurino, Ms McConville’s statement is of little value in deciding if, in fact, the conduct actually occurred. Mr Mahoney’s evidence directly contradicted that of Ms McConville. This could only have been resolved by the direct evidence of Ms Cazzurino.
[67] In the absence of any direct evidence from Ms Cazzurino as to the conversation alleged to have taken place between her and Mr Mahoney and in the absence of any other conversation between Mr Mahoney and other employees of OSSA, I cannot find that Mr Mahoney made any disparaging remarks of OSSA or senior management to other employees.
Disparaging OSSA and its senior managers to clients and service providers
[68] Evidence was given of eight different clients and/or service providers Mr Mahoney is said to have made disparaging comments to. I have considered each of these.
[69] Mr Mcvittie: The evidence is that Mr Mahoney told Mr McVittie that he was on stress leave. This is hardly disparaging and given Ms McConville’s admission that Mr McVittie and Mr Mahoney are friends, it is hardly surprising.
[70] Mr Middling: the evidence is respect of Mr Middling is no more than evidence that Mr Mahoney was looking for work. This cannot be considered as disparaging conduct.
[71] Mr Powell: the evidence is that Mr Powell returned a call he had received from Mr Mahoney who was possibly looking for work. There is no evidence, even from Ms McConville, that Mr Mahoney made any disparaging comments about OSSA or its senior managers.
[72] Mr Veal: the evidence in relation to Mr Veal is that Mr McConville spoke to him and he said he had heard from Mr Mahoney, that they discussed OSSA and Mr Mahoney had said he was on stress leave. Again, this is not evidence of disparaging comments. Mr Veal did not give any evidence, instead OSSA relies on an email exchange between Mr McConville and Mr Veal. The email exchange was initiated by Mr McConville who wanted to know when Mr Veal had last spoken to Mr Mahoney and what was discussed. Mr Veal says that he last spoke to Mr Mahoney in late October. Mr McConville pressed Mr Veal for ‘confirmation…he was on Workcover stress because of issues at OSSA’ 78 to which Mr Veal replied Mr Mahoney had mentioned he was on stress leave. This does nothing to support the claims of OSSA.
[73] Even on being pressed and suggesting the information required, there is nothing in the email on which OSSA could rely to suggest Mr Mahoney disparaged it or its managers in any way.
[74] It does not seem to me to be disparaging to make a statement that you are on WorkCover because of stress at work. He said no more. He offered an explanation as to why he was no longer at work. If the comment was disparaging it is more likely to be in the way the statement was made – the intonation used – rather than the words themselves but without direct evidence of Mr Veal this cannot be known and certainly should not be assumed.
[75] Mr Iacappino: the evidence of the conversation with Mr Iacappino is that in October 2015 Mr Mahoney said he wanted to continue to quote on work for him. Mr Iacappino did not give evidence. Ms McConville’s statement of the conversation she had with Mr Iacappino does not allow me to conclude that Mr Mahoney made disparaging remarks about OSSA or its senior management to Mr Iacappino.
[76] Mr Brooks: Mr Brooks did not give evidence. The evidence of Ms McConville is that Mr Mahoney said he was on WorkCover as a result of bullying. This is not evidence of Mr Mahoney making disparaging comments about OSSA and senior management.
[77] Mr Chalmers: Mr Chalmers did not give evidence. Mr McConville says that Mr Chalmers said that Mr Mahoney said Ms McConville had a personal vendetta against him. This is perhaps the closest any evidence comes to Mr Mahoney disparaging senior managers of OSSA. Unfortunately, the evidence of Mr McConville is not reliable evidence of the conversation Mr Chalmers had with Mr Mahoney.
[78] Mr Mahoney says that he did not tell Mr Chalmers what is claimed and that Mr Chalmers gave him advice as to what he should do and was aware of his WorkCover claim.
[79] Given that the evidence was hearsay, the absence of Mr Chalmers and Mr Mahoney’s denial, I am not satisfied that Mr Mahoney did tell Mr Chalmers that he had been driven out by a personal vendetta of Ms McConville such that the conduct could be considered to have amounted to disparaging OSSA or its senior managers.
[80] Mr Lafferty: Mr Lafferty did not give evidence. Mr McConville did not talk directly to Mr Lafferty. In this respect, any evidence he gives of what Mr Mahoney may have said to Mr Lafferty or done is not reliable.
[81] Ms McConville says that she received an email from Mr Lafferty although this was not provided in her material. At its highest, her evidence again is that Mr Mahoney had said he had a WorkCover claim and intended to ‘fiercely’ pursue it.
[82] Again, it does not seem to me that I can find that this is disparaging conduct by Mr Mahoney.
[83] Mr McGettigan: Whilst Mr McConville mentions Mr McGettigan as a person to whom Mr Mahoney made disparaging comments, no evidence, direct or otherwise, is provided.
Conclusion as to disparaging comments
[84] On the basis of the evidence before the Commission, it is not possible for me to conclude, on the balance of probabilities, that Mr Mahoney has made disparaging comments about OSSA or its senior managers to clients and/or contractors of OSSA. Even if it was accepted that some of the comments Mr Mahoney is alleged to have made he did make, there is no evidence of when these statements are said to have been made. In particular there is no evidence of statements made after 17 December 2015 when Mr Mahoney, via his solicitor, received the ‘warning letter’ from OSSA.
[85] I do accept that Mr Mahoney may have been a bit injudicious in his comments to clients or contractors of OSSA that he spoke to about the reason for his absence from work. In his discussions with these people, he has not sought to distinguish between discussions he had seeking work, whether he was doing this on his own behalf or on behalf of OSSA and whether he was speaking to them professionally or as a friend. Invariably, this has contributed to his current situation. This does not however mean that there was a valid reason for his dismissal.
Seeking money from Mr Skinner
[86] The allegation of seeking payments from Mr Skinner is a matter that only arose just prior to the hearing of the application.
[87] In summary, Mr McCartin, an employee of OSSA, met with Mr Skinner on 27 May 2016 when Mr Skinner told him of the events of November 2014. Mr McCartin sent a text to Ms McConville on 27 May 2016, although she says she learnt of it on 28 May 2016.
[88] Mr Mahoney denies the allegation and says that, at worst, it was a bit of banter, a joke.
[89] The incident occurred 18 months before Mr Skinner thought to mention it to anyone at OSSA. If he believed Mr Mahoney was attempting to extort money from him, I am not sure why he took no action for 18 months.
[90] Whilst Mr Skinner says Mr Mahoney sent him his bank account details by text, he says he did not keep the text message. OSSA did nothing to seek to retrieve the text message sent by Mr Mahoney although it relies on the phone records of Mr Mahoney’s mobile phone from 27 November 2014, 79 in particular four text messages sent between 8.30pm and 8.54pm.80
[91] Of the four text messages, one was sent at 8.30pm, the next at 8.39pm, the next at 8.41pm and the last at 8.54pm. Whilst no evidence was given, I assume that the phone number texted is that of Mr Skinner. That four messages were sent within a 25 minute window suggests that there may have been an exchange of messages. The content of those messages is within the control of OSSA. As Mr Mahoney clearly pointed out, OSSA took his mobile phone back in September 2015. He could not retrieve the text messages.
[92] Given the lack of evidence as to the content of the text messages from either Mr Skinner or OSSA and the 18 month time lag between the incident and Mr Skinner feeling the need to tell someone from OSSA about the incident I am not satisfied, on the balance of probabilities, that there was a serious attempt to extort money from Mr Skinner by Mr Mahoney.
[93] I am more inclined to the view that there was a harmless (though perhaps distasteful) exchange between Mr Skinner and Mr Mahoney that may have gone a bit too far if Mr Mahoney did, in fact, provide his bank account details.
[94] A consideration of Mr Skinner’s phone records for November 2014 indicates that it was not unusual for him to be sending text messages in the evening. That he did so to Mr Skinner on this occasion is not so unusual as to add any weight to the claim.
[95] I am not satisfied, on the balance of probabilities, that the conduct occurred. The claim of seeking money from Mr Skinner therefore does not provide a valid reason for dismissal of Mr Mahoney.
[96] Whilst it does not affect my finding I would observe that it was very convenient that a meeting should be held with Mr Skinner where he did decide to tell all just over a week prior to the hearing of the unfair dismissal application.
Conclusion as to valid reason
[97] For the reasons given above I find that there was no valid reason for the dismissal of Mr Mahoney.
Whether the person was notified of the reason
[98] Mr Mahoney was notified of the reason for his dismissal by letter to his lawyer on 1 February 2016.
[99] It is notable that, in the notice of termination, Mr Mahoney was not advised of who it was he was said to have contacted nor what he was alleged to have said to them such that he might fully know the reason for dismissal. Mr McConville says he relied on the fact that Mr Mahoney was contacting clients and/or contractors of OSSA but who these specifically were was never put to Mr Mahoney.
[100] In Crozier v Palazzo Corporation Pty Ltd 81 the Full Bench said that:
[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their 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 170CG (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.
[101] In this case, Mr Mahoney was not notified of the reason for his termination prior to the decision being taken to dismiss him. He was denied procedural fairness in this regard. He had no opportunity to influence the course of action taken by OSSA.
[102] Whilst it is true that Mr Mahoney was given a letter of termination of employment, this was after the fact.
[103] Mr Mahoney was never given notice, nor an opportunity to respond, in relation the allegations that he sought money from Mr Skinner.
Whether the person was given an opportunity to respond
[104] I am not satisfied that Mr Mahoney was given an opportunity to respond to the reasons for his dismissal.
[105] Mr Mahoney was denied procedural fairness in this respect.
Support person
[106] No meetings were held between Mr Mahoney and OSSA such that the question of a support person did not arise.
The extent to which the size of the enterprise and access to human resource expertise may have impacted on the procedures surrounding the dismissal
[107] I accept that OSSA is not a large enterprise (with 35 employees) and that it does not have dedicated human resource expertise. I accept that the size and lack of human resource expertise may have affected the procedures followed in effecting the dismissal. I accept that this might mitigate against a finding of minor breaches of fair process.
[108] However, the lack of procedural fairness afforded to Mr Mahoney was not minor in nature. In circumstances where it had not received a response to its December 2015 letter to Mr Mahoney, a more considered approach from OSSA was warranted. Mr Mahoney should have been given the specifics of the allegations against him (which he still sought in the hearing of his application). He should have been given an opportunity to respond prior to a decision being taken. Ultimately, it would have added (if OSSA had not been satisfied with his response) a week or two to the process.
Other matters
[109] Mr Mahoney understood his employment could not be terminated within the first 52 weeks of being on WorkCover. This appears to be a misunderstanding of the legislative provisions governing a workplace injury.
[110] The Victorian workers’ compensation legislation provides that where a worker can perform some work but cannot do all of their normal job, the employer must provide suitable employment (which might be suitable alternative employment). The obligation starts from when a worker receives a certificate of capacity or claim for weekly payments. The obligation continues for 52 weeks.
[111] This is not the situation Mr Mahoney found himself in. His employment was not terminated because the employer could not find him suitable alternative employment because of his work related injury. His employment was terminated for conduct reasons.
Conclusion as to unfair dismissal
[112] For the reasons outlined above, I am satisfied that the termination of Mr Mahoney’s employment was unjust because Mr Mahoney was not guilty of the misconduct and unreasonable because the evidence did not support the conclusion reached by OSSA as to his conduct.
[113] Mr Mahoney was therefore unfairly dismissed.
Remedy
[114] I am not satisfied that I have enough evidence or submissions such that I could determine remedy although, I do accept that some submissions have been made by OSSA on the subject.
[115] I shall therefore issue separate directions to deal with that matter.
COMMISSIONER
Appearances:
J. Mahoney appeared on his own behalf.
N. Tindley appeared for OSSA Services Pty Ltd T/A OSSA Services.
Hearing details:
2016.
Melbourne:
June 6 and 8.
1 Exhibit A1 at attachment JM1.
2 Ibid at attachment JM5.
3 Ibid at attachment JM2.
4 Ibid at attachment JM3.
5 Transcript PN61.
6 Ibid at PN277,305, 315.
7 Ibid at PN317-9.
8 Ibid at PN257.
9 Ibid at PN61-2.
10 Ibid at PN341-3.
11 Ibid at PN64.
12 Ibid at PN65.
13 Ibid at PN334-5.
14 Ibid at PN66.
15 Ibid at PN66-7.
16 Ibid at PN307.
17 Ibid at PN306.
18 Ibid at PN67-71.
19 Ibid at PN73.
20 Ibid at PN324.
21 Ibid at PN74.
22 Ibid at PN353 and 359.
23 Ibid at PN244-5. See also exhibit A1 at attachment JM4, page 5.
24 Transcript PN247-248.
25 Ibid at PN380, 382-4.
26 Ibid at PN75.
27 Exhibit R1, email dated 16 October 2014.
28 Exhibit R1, email dated 17 October 2014.
29 Transcript dated 6 June2016 at PN148.
30 Ibid at PN188.
31 Ibid at PN189.
32 Ibid at PN198.
33 Ibid at PN202-4 and 208.
34 Exhibit R3.
35 Exhibit A4, email dated 6 June 2016 at 7.39 am.
36 Ibid, email dated 5 June 2016 at 8.47 pm.
37 Exhibit R4 at paragraph 13.
38 Exhibit R4 at paragraph 17.
39 Transcript PN611.
40 Ibid at PN608 and 614.
41 Ibid at PN616-618.
42 Exhibit R5, paragraph 4(e).
43 Transcript PN 630-631.
44 Exhibit R4 at paragraph 15.
45 Transcript PN646.
46 Ibid at PN572.
47 Transcript PN730.
48 Exhibit A6, email dated 12 May 2016 at 8.59 am
49 Ibid, email dated 12 May 2016 at 9.45 am
50 Ibid, email dated 12 May 2016 at 10.44 am.
51 Transcript PN708-714.
52 Exhibit R4 at paragraph 20.
53 Transcript PN668.
54 Exhibit R6 at paragraph 10. [Note that attachment LM1 is not a copy of the correspondence].
55 Exhibit R6 at paragraph 11.
56 Exhibit R6, at paragraph 12 and attachment LM1.
57 Exhibit R6 at paragraph 14.
58 Exhibit R7 at paragraph 3.
59 Ibid at paragraph 2.
60 Transcript PN831-833.
61 Exhibit R6 at paragraph 15.
62 Exhibit R7 at paragraph 5.
63 Ibid at paragraphs 6-7.
64 Transcript PN844.
65 Ibid at PN870.
66 Ibid at PN886.
67 Exhibit R8 at paragraph 4.
68 Ibid at paragraph 5.
69 Exhibit R9 at paragraph 5.
70 Ibid at paragraphs 6-7.
71 See, for example, transcript PN74, 479, 481, 541, 591, 681, 690, 692.
72 Exhibit A4.
73 Exhibit A5.
74 Exhibit A8.
75 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
76 Exhibit R4 at paragraph 21.
77 Edwards v Giudice (1999) 94 FCR 561 at paragraphs [6]‒[7].
78 Exhibit A6, email dated 12 May 2016 at 9.49 am.
79 Exhibit R7 at attachment PM1.
80 Transcript dated 6 June 2016 at PN869 and Exhibit R7 at attachment PM1, page 54.
81 (2000) 98 IR 137.
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