Jonathan Reposar v Morris Corporation Ltd

[2016] FWC 1652

[2016] FWC 1652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathan Reposar
v
Morris Corporation Ltd
(U2015/13274)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 26 MARCH 2016

Application for relief from unfair dismissal – valid reason – process not established to be fair – compensation.

[1] On 30 September 2015 Mr Reposar lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of his employment with Morris Corporation Ltd (Morris Corporation). Mr Reposar’s application was not settled through the Fair Work Commission (FWC) conciliation process.

[2] Morris Corporation applied to have the application dismissed pursuant to ss.587(1)(b) and 399 of the FW Act. These motions were dismissed in a decision 1 issued on 4 February 2016. The application was then listed for arbitration on 9 March 2016. In this hearing, Mr Reposar represented himself whilst Morris Corporation was represented by Ms Reeves.

[3] I have summarised the background to the matter in the following terms. Mr Reposar worked as a Breakfast Chef for Morris Corporation from 23 November 2013. At the time of the termination of his employment he worked at a Karratha mining and resources camp. There is no dispute that he was engaged under a sub-class 457 visa.

[4] Mr Reposar acknowledges that a number of performance issues were raised with him from February 2015. These issues generally related to the manner of his relationship with other Morris Corporation employees. Mr Reposar disputes the extent to which any of these incidents reflected fault on his part or represented a valid reason for the termination of his employment. Further, a number of these incidents were the subject of disciplinary discussions with Mr Reposar in April and September 2015. In these respects Mr Reposar disputes the manner in which those discussions occurred and contends that the discussions were inherently unfair and breached the policy position promoted by Morris Corporation. Mr Reposar also asserts that the final warning dated 16 April 2015 and relied upon by Morris Corporation, was never given to him.

[5] Mr Reposar contends that there was no valid reason for the termination of his employment and that the process followed by Morris Corporation was unfair in that his concerns about the behaviour of other employees were not properly investigated.

[6] Morris Corporation asserts that issues relative to Mr Reposar’s dealings with other employees were raised with him in February 2015. Further concerns arose from his behaviour in April 2015 and these gave rise to a disciplinary meeting on 16 April 2015 at the conclusion of which he was given a final warning. After other employee complaints about Mr Reposar were received in July and August 2015 a further disciplinary meeting was then held with him on 3 September 2015. Morris Corporation required Mr Reposar to attend a “Show Cause” meeting on 10 September 2015 in order to demonstrate why he had behaved in this way and how he was prepared to change his behaviour. Following that meeting, Morris Corporation determined to terminate Mr Reposar’s employment on 11 September 2015 for bullying and aggressive behaviour displayed towards his work colleagues.

[7] Morris Corporation asserts that Mr Reposar’s repeated instances of intimidation and aggression directed at other employees represented a valid reason for the termination of his employment and that the process it followed provided him with a fair opportunity to respond to the contention that his employment should be terminated. Morris Corporation repeated its earlier assertion that Mr Reposar was pursuing this matter for reasons related to his 457 visa status as he was required to obtain alternative employment within 90 days of being dismissed. Morris Corporation asserted that Mr Reposar was paid 5 weeks pay on the termination of his employment.

The evidence

[8] In considering the evidence before me I have noted the Morris Corporation policies and procedures and the final written warning given to Mr Reposar on 16 April 2015. Whilst I have taken all of the evidence before me into account in reaching a conclusion in this matter, I have briefly summarised the witness evidence.

[9] I have also taken into account that Morris Corporation elected not to call Ms Van Der Merwe, the HR Business Partner WA, who undertook the final investigation into Mr Reposar’s conduct, convened the meetings with him in September 2015 and ultimately made the decision to terminate his employment. Ms Reeve advised that this reflected a corporate decision. Ms Reeve advised that she could provide a statement from Ms Van Der Merwe, but I was not prepared to accept this as Mr Reposar needed to have a fair opportunity to ask her questions about the matter. Morris Corporation was clearly on notice about the arrangements for the hearing and the extent to which it provided both parties with the opportunity to provide evidence to support their positions. Put simply, the failure to call Ms Van Der Merwe is difficult to understand and represents a circumstance where it is open to me to conclude that Ms Van Der Merwe’s evidence would not have assisted the Morris Corporation case.

[10] Mr Reposar’s evidence went to his concerns about the behaviour and performance of various other staff, some of whom reported to him. He detailed particular instances such as an occasion when an employee opened the door to his room using a master key whilst he was asleep. He followed that employee and questioned him. Mr Reposar’s evidence was that concern about his behaviour relative to his response to that employee’s entry to his room was discussed at a disciplinary meeting on 16 April 2015 but that there was no question about his work performance and allegations of inappropriate behaviour were not put to him such that he could properly respond to them. Furthermore, Mr Reposar asserts that he was not given the opportunity to be represented at this meeting despite an undertaking to this effect. In terms of that 16 April disciplinary meeting, Mr Reposar advised that the Interview Record 2 which he was given at the end of this meeting did not record that any action would be taken against him and that he subsequently left the site without being given the first and final warning.3 He advised that he had never been given that warning whilst he was employed. Further, he asserted that it appeared clear that the meeting record had been amended after the meeting to include a reference to the provision of a final warning.

[11] Mr Reposar acknowledged that there was a further disciplinary process commenced on 27 August 2015 and that he was stood down pending consideration of allegations against him. Mr Reposar disputed the circumstances of any of the further employee complaints against him. He advised that there was some discussion on 3 September 2015 over the possibility that he might be relocated to a different camp but that, while he indicated that he was prepared to go to another camp, he wanted a fellow Karratha camp worker, Ms Carandang to go to any new camp with him. He advised that he was provided with a letter on 8 September 2015 asking him to attend the 10 September 2015 “Show Cause” meeting. He attended that meeting and, in the course of the meeting, provided Ms Van Der Merwe with two documents he had prepared. The first of these related to the events in April 2015. 4 Mr Reposar advised that he had prepared this document in April but had forgotten to provide it to Morris Corporation management until 10 September 2015. Mr Reposar also advised that he provided Ms Van Der Merwe with a document5 which he addressed to Ms Vater and prepared in July and August 2015 and in which he set out his version of the events involving differences he had with other Morris Corporation employees in July and August 2015. His advice was that he documented his complaints about those employees because Morris Corporation management was not listening to him6 but had not previously provided that document to Ms Vater. Mr Reposar’s evidence was that the meeting concluded on the basis that Ms Van Der Merwe advised that she would consider Mr Reposar’s position and advise him of the outcome. His evidence was that he was then advised on 11 September 2015 that he was dismissed from that date.

[12] Mr Reposar advised that he subsequently received payment for a notice period which he understood was two weeks and payment for his statutory entitlements. He had applied for at least one other catering job. He had been successful in obtaining a remote catering job but had only stayed for two days as he considered it too remote and was concerned about the working hours. He currently remained unemployed and advised that he was seeking permanent residency status. Mr Reposar advised that the effect of his termination and subsequent unemployment was that he was unable to send money back to his family who were dependent on him in the Philippines.

[13] Ms Carandang also worked at the Karratha camp. Her evidence went to her good relationship with Mr Reposar and the extent to which various other employees did not properly follow his instructions.

[14] Ms Vater is the Morris Corporation Karratha Village Manager. Her evidence went to the Morris Corporation Code of Conduct and to various incidents where she either observed Mr Reposar behaving in an intimidating or aggressive manner toward other employees or was made aware of incidents of that nature. She detailed her concerns about Mr Reposar’s behaviour in April 2015 and her investigation of the incident where another employee had used a master key to enter his room whilst he was sleeping. She concluded this was accidental but was concerned at Mr Reposar’s response to the incident. A few days later Ms Vater witnessed an argument between Mr Reposar and another employee in the kitchen and, having noted earlier documented concerns about his behaviour in February 2015, she concluded that his behaviour needed to change. Ms Vater initiated the April 2015 disciplinary meeting with Mr Reposar as a result of these concerns. Her evidence was that after giving Mr Reposar a chance to respond, she gave him a copy of the meeting record as it was at that point and suspended the meeting to obtain advice from the Morris Corporation human resources function. That advice was to the effect that a final warning should be issued. Ms Vater printed that warning, signed it and gave it to Mr Reposar before he left to fly off site. 7

[15] Ms Vater’s evidence was that Mr Reposar’s behaviour toward other employees then improved for a time, but that complaints about his behaviour with respect to other employees, including Ms Tsai and Mr Gudiel in July and August 2015, led her to the conclusion that his intimidating, rude, and aggressive behaviour toward other employees was unacceptable. She then referred the matter to Ms Van Der Merwe for investigation. Ms Vater was aware of statements provided by various other employees with respect to Mr Reposar’s conduct. I note those statements have not been put to me. Ms Vater participated in the investigation meeting on 3 September 2015 and noted that Ms Van Der Merwe referred to at least some of these statements at this meeting. Ms Vater recalled that, in the meeting Ms Van Der Merwe advised Mr Reposar that the meeting was directed at the July and August incidents.

[16] Ms Vater may have participated in the meeting on 10 September but could not recall that meeting.

[17] Ms Vater advised that Ms Van Der Merwe was the Morris Corporation decision maker in this matter.

Findings

[18] Before considering the factors set out in s.387 of the FW Act, I have explained the reasons for my conclusions about a number of relevant disputed issues. I note that, had further evidence been provided by the Morris Corporation, I may well have arrived at different or more extensive conclusions.

[19] A further significant issue goes to the manner in which Mr Reposar and Morris Corporation presented their cases. Mr Reposar’s emotional commitment to the matter and both parties’ reliance on assertions without critical evidence meant that much of this matter lacked the certainty which would generally be expected in such a matter.

[20] A significant issue in dispute goes to the events of 16 April 2015. I am satisfied that the evidence indicates that Mr Reposar was given notice of this meeting on the previous day and that this notice confirmed that he could have a support person present. 8 I have generally preferred the evidence of Ms Vater to that of Mr Reposar. Ms Vater’s evidence was clear and precise about her recollections. I am satisfied that evidence establishes that Ms Vater suspended the meeting so that she could obtain advice from the Morris Corporation human resources function. At that point she gave Mr Reposar the meeting record as it then existed. I am satisfied that, whilst the meeting was suspended, Ms Vater was advised to issue Mr Reposar with a final warning and that she printed this warning out, signed it using a different pen, to that which she used for the meeting record, and gave the warning to Mr Reposar. It seems to me that this explanation of the circumstances is entirely credible and consistent with Ms Vater’s objective of achieving a change in Mr Reposar’s behaviour.

[21] I have also accepted Ms Vater’s evidence that she was concerned about Mr Reposar’s dealings with other employees in April 2015. However, I also accept that Mr Reposar had a genuine cause for concern about unauthorised entries to his room whilst he was sleeping. I have drawn no conclusions at all about events which occurred in February 2015 as evidence to this effect has not been put to me and I am not at all sure that it was ever put to Mr Reposar. I have preferred the evidence of Ms Vater about the incident between Mr Reposar and a Mr Girling in April 2015 to the effect that Mr Reposar’s conduct was inappropriate.

[22] More significantly, in terms of the events of July and August 2015, I have concluded that concerns were raised by some staff members about Mr Reposar’s conduct and attitude toward other staff. The precise nature of all of that conduct is unclear because of deficiencies in the material before me. However, I accept that Ms Vater had material before her that asserted that Mr Reposar had acted in an aggressive and intimidatory manner toward other staff, had referred to at least some staff members in derogatory terms and that she had personally heard him refer to Morris Corporation personnel on the basis that “all Australians are racist and lazy”. 9 I have accepted Ms Vater’s evidence that she was sufficiently concerned about this behaviour such that she formed the view that Mr Reposar should be dismissed and referred the issue to the Morris Corporation human resources function for action.

[23] Mr Reposar received the stand down letter of 27 August 2015. 10 He was aware from this letter that he could have a support person at the meeting on 3 September 2015.

[24] I am not satisfied, on the evidence before me, that, at or before this meeting, the detailed allegations relating to Mr Reposar's dealings with other staff were put to him in a manner which enabled him to fairly respond. I have, however, preferred Ms Vater’s evidence that Mr Reposar was not offered a catering job at another camp. I think it most likely that the meeting on 3 September 2015 concluded on the basis that Morris Corporation would consider Mr Reposar’s responses and advise him of the action it proposed to take.

[25] Mr Reposar was advised that he could have a support person present at the meeting on 10 September 2015. In terms of this meeting I have generally accepted Mr Reposar’s evidence in that it is the only first-hand account of that meeting. I am satisfied that the meeting referred to the Morris Corporate Code of Conduct 11 and have concluded that Mr Reposar did not admit that his conduct breached that Code. I have concluded that Mr Reposar did give Ms Van Der Merwe his version of the events of April, July and August. I simply do not know what account Ms Van Der Merwe took of these documents.

[26] In terms of these documents, 12 I have concluded that they reflected Mr Reposar’s view that he was the “victim”13 in that other Morris Corporation employees and management were behaving inappropriately toward him. I have concluded that it was most likely that Mr Reposar held that view of Ms Vater and hence did not give her the notes he prepared of the events of April 2015.

[27] There is no substantial material before me relative to the deliberations of Morris Corporation management immediately before and after the 10 September 2015 meeting.

[28] I am satisfied that Mr Reposar received correspondence on 11 September 2015 advising of the termination of his employment.

[29] In terms of the events since the termination of Mr Reposar’s employment, I have accepted that Mr Reposar has made some efforts to obtain alternative employment, that he gained catering work but left that employment after two days. I have not been able to reach a definitive conclusion about the basis for any payments made to him by Morris Corporation after the termination of his employment.

[30] Section 387 states:

“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.”

[31] I have considered each of these factors on the material before me.

Valid Reason

[32] Notwithstanding subsequent changes to the legislation, I have applied the principles set out by Northrop J in Selvachandran v Peterson Plastics Pty Ltd 14. I have concluded that Mr Reposar’s inability to harmoniously relate to numerous other Morris Corporation employees and the significant number of complaints about his behaviour toward other employees represented a valid reason for the termination of his employment. In this respect I have relied heavily on the evidence of Ms Vater. I do not accept Mr Reposar’s assertions that he was the “victim” in relation to the complaints made by other people. There were simply too many complaints and too many direct observations by Ms Vater of inappropriate conduct on the part of Mr Reposar for this to be the case.

Explanation of the reason

[33] The termination of employment letter of 11 September 2015 confirmed that Mr Reposar did not regard his behaviour as a problem and stated:

“In reviewing the facts of the case and your response in the show cause meeting I cannot condone your behavior as it is against the core values of Morris clause 3.3. The allegations of bullying and / or aggressive and intimidating behavior towards your work colleagues at Kingfisher Village is a serious offence and Morris takes these matters very seriously.” 15

[34] This letter then continued to refer to Mr Reposar’s behaviour as a breach of its Code of Conduct. 16 I am satisfied that Mr Reposar was advised of the reasons for his dismissal.

Opportunity to respond

[35] The two meetings in September 2015 suggest that Mr Reposar had an opportunity to respond to the allegations against him. However, I have concluded that, to the extent that Mr Reposar wanted to revisit the April 2015 allegations against him, this was discounted. The evidence of Mr Reposar 17 confirms this.

[36] Further, the lack of definitive evidence about what consideration Morris Corporation gave to Mr Reposar's responses at both the 3 and 10 September 2015 meetings, means that I am unable to conclude that he had a realistic opportunity to respond to the proposition that his employment was to be terminated.

[37] Finally, in this respect, I do not have information about what details of the allegations about Mr Reposar’s conduct were disclosed to him so as to allow him to properly respond. Absent some level of detail about those allegations, I am not satisfied that a reasonable opportunity to respond existed.

Refusal to allow a support person

[38] I am satisfied that Mr Reposar had the opportunity to have a support person present in the various interviews which preceded the termination of his employment.

Warnings about unsatisfactory performance

[39] I have accepted that Mr Reposar was given a final warning about his approach toward other Morris Corporation employees on 16 April 2015. That warning referred to intimidatory, aggressive and inappropriate behaviour toward other employees and made it clear that termination of his employment could result from further actions of that nature.

Size of the Morris Corporation - access to human resources expertise

[40] On the limited information before me, I have concluded that Morris Corporation is a substantial employer. It is clear that Morris Corporation has a significant human resource management function. It is equally clear that expertise has been involved in the termination of Mr Reposar’s employment. I have already expressed concern about the actions taken by Morris Corporation to demonstrate that Mr Reposar was treated fairly.

Size of Morris Corporation - impact on policies and procedures

[41] Again, I have concluded that Morris Corporation is a substantial employer and the evidence before me indicates that it had, and applied, structured policies and procedures.

Other Matters considered relevant

[42] I have taken Mr Reposar’s Phillipino background into account and have concluded that he has a limited understanding of Australian practices and customs. This was clear from his conduct in the course of the determinative conference. There is no information before me that establishes that Mr Reposar’s sub-class 457 visa is relevant to this matter.

[43] I have also concluded that Mr Reposar was committed to his job and have concluded that he expected the same level of commitment and standards from other employees who worked with him.

[44] I have concluded that Mr Reposar was dismayed at the two unauthorised entries to his sleeping quarters in April 2015 and that it is most likely that he remained dismayed at the conclusions reached in this respect by Ms Vater. I think it most likely that this incident substantially contributed to his ongoing reservations about Ms Vater’s assessments of his actions.

[45] Notwithstanding this, Mr Reposar has not provided a coherent reason why he prepared chronological reports on the events of April and then July and August but did not forward these to Morris Corporation management until just before he was dismissed.

Harsh, Unjust or Unreasonable

[46] Having considered all of the circumstances, I do not consider that the termination of Mr Reposar's employment was harsh, in that the April 2015 warning clearly put him on notice about ongoing abusive or intimidatory behaviour and the evidence of Ms Vater confirms that behaviour of this nature occurred again in July and August 2015. Further, I have concluded that Mr Reposar was unable to get along with other employees in the camp environment so that continued harmonious employment could not be sustained. In this respect I am satisfied that Mr Reposar’s behaviour in July and August was inconsistent with the Morris Corporation Code of Conduct.

[47] I have concluded that the termination of Mr Reposar’s employment was unjust because I am not satisfied that the allegations against him were sufficiently specified so that he was able to properly respond to them. Had more comprehensive information about the Morris Corporation deliberations and actions been made available to me I may have reached a different conclusion in this respect. Because I am not satisfied that Mr Reposar had a fair opportunity to respond to the allegations against him, I have accepted that some employees may have acted inappropriately toward him.

[48] I have concluded that the termination of Mr Reposar’s employment was unreasonable because the extent of any other employee contribution to his behaviour has not been properly established to me.

[49] Accordingly, I consider Mr Reposar was unfairly dismissed. In these circumstances s.390 directs attention to the primary remedy of reinstatement. I have concluded that reinstatement is not appropriate in these circumstances. I think Mr Reposar’s conduct at the Karratha camp makes reinstatement impractical. Even on Mr Reposar’s own evidence, where he repeatedly referred to himself as the “victim”, reinstatement would be impractical.

[50] Section 390 establishes that in these circumstances it is open to the Commission to award an amount in lieu of reinstatement. Section 392 sets out the factors I am required to take into account in setting any such amount. I consider that an amount in lieu of reinstatement is appropriate.

[51] I have set this amount consistent with the factors in s.392 and the approach adopted in Sprigg v Paul’s Licensed Festival Supermarkets.¹⁸

[52] There is no information before me that indicates that the amount I propose to order would affect the viability of the Morris Corporation business.

[53] Mr Reposar was employed for a little less than two years. I do not regard this as a long time such that it favours a significant amount of compensation.

[54] Had Mr Reposar not been dismissed I consider that he would have remained in employment for no more than a further three months. Even if Morris Corporation had not dismissed Mr Reposar, he was working pursuant to a final warning and multiple further complaints had been made about him. There had been a series of incidents associated with his relationship with other employees in February, April and then July and August 2015. I have concluded that further incidents of that nature must have resulted in the termination of his employment.

[55] I am not satisfied that Mr Reposar has made significant attempts to obtain or remain in paid employment since the termination of his employment. I understand that he may not have considered the working hours or arrangements for the alternative camp catering job he found, to be appropriate but I am not satisfied that the two day period he remained in that employment is indicative of a serious commitment to employment. No information relative to Mr Reposar’s earnings from that job has been provided to me. Further, the evidence before me does not enable any definite conclusion about what payments were made to Mr Reposar by Morris Corporation on the termination of his employment. Mr Reposar’s actions to mitigate his losses do not favour a significant grant of compensation.

[56] On the information before me I think it unlikely that Mr Reposar will gain further employment or paid remuneration in the immediately foreseeable future.

[57] The application of the approach in Sprigg, but without any deduction for contingencies leads to the conclusion that the appropriate compensation amount is three month’s pay less any income received by Mr Reposar, including monies in lieu of notice paid to Mr Reposar by Morris Corporation since the termination of his employment. A further deduction should be made for tax. I direct the parties to confer on the calculation of these amounts over the next two weeks and for the amount to be calculated on this basis to be paid within a further two weeks. In the event that the parties are unable to reach agreement on this calculation, leave is reserved to either party to refer the matter back to me for final determination. An Order (PR578036) to this effect will be issued.

Appearances:

J Reposar on his own behalf.

B Reeve for the respondent.

Hearing details:

2016.

Perth:

March 9.

 1   [2016] FWC 717

 2   Exhibit A9

 3   Exhibit A10

 4   Exhibit A4

 5   Exhibit A3

 6   Sound Recording, 12.20 pm, 9 March 2016

 7   Sound Recording, 2.46 - 2.56 pm, 9 March 2016

 8   Exhibit A8

 9   Exhibit R3

 10   Exhibit R6

 11   Exhibit R5

 12   Exhibits A3 and A4

 13   Sound Recording, 12.09, 2.12 pm, 9 March 2016

 14 (1995) 62 IR 371 at 373

 15   Termination of Employment Letter, 11 September 2015, para 2

 16   Exhibit R5

 17   Sound Recording, 12.25 pm, 9 March 2015

18 AIRC, Print R0235, (24 December 1998)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578035>