Josephus De Beer v Icon Water Limited
[2024] FWC 3495
•16 DECEMBER 2024
| [2024] FWC 3495 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Josephus De Beer
v
Icon Water Limited
(U2024/7842)
| DEPUTY PRESIDENT DEAN | CANBERRA, 16 DECEMBER 2024 |
Application for an unfair dismissal remedy – application dismissed.
Mr Josephus De Beer (Applicant) commenced employment with Icon Water Limited (Respondent) in March 2018. At the time of his dismissal on 21 June 2024, he was employed as a Water Industry Operator. The Applicant has made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he was unfairly dismissed.
At the hearing of the application, Mr S Wescott appeared with permission for the Applicant and Mr L Izzo appeared with permission for the Respondent.
The Applicant gave evidence in support of his application and called evidence from Mr Kieran Connelly. The Respondent called evidence from the following persons:
· Mr Harold Bentley – Team Leader
· Ms Sarah Bowerman – People and Culture Business Partner
· Mr Gerard Brierley – General Manager Infrastructure Services
· Mr Mark Callaway – Sewer Maintenance Supervisor
For the reasons set out below, I am not satisfied that the Applicant’s dismissal was unfair and so his application will be dismissed.
Background and key issues
Briefly, it is not in dispute that on 1 May 2024 the Applicant took property of the Respondent, in the form of a plunger, three inter-screwable rods and safety gloves (the items), from its premises for his personal use without prior authorisation.
The Applicant says he borrowed the items and returned the plunger and rods six days later. The gloves were not returned as the Applicant said they were disposable.
The Respondent says he took the items, without authorisation, in breach of his employment obligations, and sought to make it appear that he was using the items for a legitimate work purpose.
The Respondent’s Code of Conduct includes that employees are expected to “only use an Icon Water asset (including a vehicle, computer, tablet, phone, or money) for legitimate business purposes or other approved purposes”. It also provides that employees must not “improperly use their position, property or information acquired through their position for personal gain”.
The Applicant acknowledges that that his employment contract required him to abide by the Code of Conduct.
On 11 June 2024, about six weeks after having borrowed the items, the Applicant was directed to attend a meeting, during which he was given a ‘show cause’ letter. The show cause letter is in the following terms:
“Dear Lourens,
Show cause for termination of employment.
Background
Following a query from management regarding your whereabouts on Wednesday 1 May, Thursday 2 May and Wednesday 8 May 2024, we accessed ongoing surveillance materials including building site security pass access records and closed-circuit camera video footage. The intention of accessing these records was to determine your presence at the Icon Water Mitchell site, located at 12 Hoskins Street Mitchell.
Surveillance findings
On examination of the site access and video surveillance footage, we have identified the following:
· That on 1 May 2024, at approximately 8:04am, camera footage captured you leaving the Icon Water Stores building in possession of Icon Water assets that included a sewage plunger.
· This footage then shows you placing these assets into your personal vehicle in the staff car park.
· At approximately 10:45am, the footage shows you returning to your vehicle and leaving the Icon Water staff car park at 11.00am.
· There is no record that has been located or verified which shows that you have approval to take and remove this Icon Water asset from the premises in your private vehicle.
Based on the surveillance materials, I have concluded that you have taken Icon Water assets and removed them from the premises without authorisation or approval to do so.
Disciplinary action
Icon Water takes these matters seriously.
This wilful and deliberate behaviour is a direct breach of your obligations under your employment contract, Code of Conduct and the Icon Water and Combined Unions Enterprise Agreement 2022. Your actions constitute conduct that might be unlawful.
As a result, I have formed the preliminary view that your employment should be terminated on a summary basis (without notice).
Direction to Show Cause
Before making my final decision, Icon Water will provide you with an opportunity to show cause as to why your employment should not be summarily terminated (without notice). You should take this opportunity to show cause very seriously and be prepared to raise all matters that you wish Icon Water to consider before a final decision is made regarding your employment.
To provide you with an opportunity to respond, you are invited to attend a meeting on Thursday 20 June 2024 at 10.30am at Icon Water, 12 Hoskins Street Mitchell. You may be accompanied by a support person at this meeting and given the seriousness of the matter, I encourage you to do so.
Alternatively (or in addition) you can provide a written response by close of business on Thursday 20 June 2024.
Should you not provide a response by this time Icon Water will proceed without further notice based on the information and proposed course of action set out above, this being termination of your employment.
Suspension from Duty
Effective immediately, you are suspended from your duties and must hand over your security pass and Icon Water assets. You will continue to receive full pay and accrue entitlements during this period of suspension until further notice pending the outcome of your response by close of business Thursday 20 June 2024.
During the suspension of duties, you must refrain from contacting any Icon Water employees, and you are not to attend any Icon Water workplace until further notice.
Your contact in the People and Culture Branch is Emily Kerslake Manager, People and Culture who can be contacted on 0459399045 if you have any questions.
This matter is confidential and should not be discussed with others in the workplace apart from your designated support person.
I understand this is a difficult time for you and I encourage you to use the counselling services of our Employee Assistance Program provided by Telus Heath contact [telephone number].
Yours sincerely
Gerard Brierley
General Manager, Infrastructure Services Group”
The Applicant provided a response to the show cause letter during a meeting on 20 June, in which he said he acknowledged borrowing the plunger, stated he did not realise he had done anything wrong, apologised, and said he would not engage in that conduct again.
On 21 June the Respondent advised the Applicant by letter that his employment was terminated. The termination letter is in the following terms:
“Dear Lourens,
Outcome of Show Cause Response
I refer to our correspondence previously provided to you on Thursday 13 June 2024 outlining our concerns with your behaviour amounting to unlawful conduct and providing you an opportunity to respond in person and/or in writing.
In our correspondence, you were asked to show cause as to why your employment should not be terminated summarily (without notice). You were invited to provide a response by close of business Thursday 20 June 2024, in person and/or in writing with any additional information you required Icon Water to consider as part of the review of your ongoing employment.
Your response
You provided your response in person on Thursday 20 June 2024, and you had a support person present. Your response included an acknowledgement that you took the items for personal use, that you take full responsibility for your actions and promise it won’t happen again. Icon Water has now had an opportunity to consider your response.
You are aware that all Icon Water employees are always expected to comply with all Icon Water policies during their employment.
As outlined previously in the show cause letter, we identified:
· That on 1 May 2024, at approximately 8:04am, camera footage captured you leaving the Icon Water Stores building in possession of Icon Water assets that included a sewage plunger.
· This footage then shows you placing these assets into your personal vehicle in the staff car park.
· At approximately 10:45am, the footage shows you returning to your vehicle and leaving the Icon Water staff car park at 11.00am.
· There is no record that has been located or verified which shows that you have approval to take and remove this Icon Water asset from the premises in your private vehicle.
As outlined in our correspondence dated 11 June 2024, your actions are considered a breach of your obligations under your employment contract, Icon Water Code of Conduct and the Icon Water and Combined Unions Enterprise Agreement 2022.
I believe that your response to the show cause letter did not provide any reasonable excuse for your conduct in the workplace and nor did you provide Icon Water with any circumstances which might mitigate the seriousness of your conduct.
Our decision
Having duly considered your response to the Show Cause, I advise that Icon Water has decided to terminate your employment for conduct which could be considered unlawful effective Friday 21 June 2024.
Icon Water considers your conduct in the workplace has eroded our trust and confidence in your ability to work in accordance with Icon Water’s policies, including Icon Water’s Code of Conduct and the terms and conditions of your employment contract.
Termination payment
Although your behaviour justifies summary dismissal (without notice), Icon Water will provide you with 4 weeks payment in lieu of notice. In addition, you will receive payment for your wages up until today’s date and any accrued leave entitlements.
I appreciate that this decision will be very upsetting for you and so I would like to remind you of our Employee Assistance Program (EAP) provider, Telus Health which will continue to be available to provide you with confidential counselling and support during this difficult time. The contact number for the EAP service is [telephone number].
Please ensure that all Icon Water property in your possession, including Icon Water issued equipment and uniforms, is returned to Emily Kerslake by COB Monday 24 June 2024.
If you have any questions regarding this matter or your final entitlements, please contact Emily Kerslake Manager, People and Culture on [telephone number].
This matter is confidential and should not be discussed with others in the workplace apart from your designated support person.
Yours sincerely,
Gerard Brierley
General Manager, Infrastructure Services Group”
The case for the Applicant
The Applicant says he borrowed the items and returned the plunger six days later. Almost six weeks later, the Applicant was directed to attend a meeting and asked to show cause why his employment should not be terminated. He says he provided a full admission and apologised for borrowing the plunger.
He says his dismissal was disproportionate to the conduct he engaged in, and he was not afforded procedural fairness. Specifically, he denies he engaged in unlawful conduct or theft.
The Applicant accepts that by using the plunger for his own personal use, he was in breach of two provisions of the Code of Conduct which are set out above. However, he claims that his conduct was not serious enough to warrant his dismissal after six years of employment, particularly as he was accused of theft and serious misconduct without a proper basis.
In terms of the events in question, the Applicant gave evidence that on 1 May 2024 he received a call from his neighbour while at work, who advised him there was a drain that was blocked in his yard and was causing sewerage to come to the surface.
The Applicant first sought to purchase a plunger but couldn’t find the right type so he went to the Respondent’s yard to check the sewerage trucks to find a plunger he could borrow. He says he then went to the store and booked out a plunger using a sewerage truck code. He also booked out some thermal gloves he needed for work.
The Applicant gave evidence that he then took the plunger and gloves and put them in his car before completing his day’s work. He then used the equipment after work to fix the blockage in his yard.
He says he returned the plunger a few days later.
The Applicant gave evidence that he did not think he had done anything wrong in booking out and borrowing the plunger, as he had seen other people using the Respondent’s property for personal use. He named three other employees who he said had done this.
In response to the Respondent’s assertion that the CCTV footage showed him walking in an unusual way, the Applicant said he was looking to see whether there was a plunger on a truck that he could use.
In submissions, the Applicant highlighted that as there was no-one else in the store at that time, he could have simply taken the items without checking them out if he had an intention to steal them. As he did check the items out, it demonstrated he had no intention of engaging in theft as alleged by the Respondent. He also asserted that his manager was looking for a reason to discipline him.
Mr Kieran Connelly, who was the Applicant’s support person in the meetings held on 13 and 20 June, gave evidence that the code used by the Applicant to book out the plunger was the correct code if it were to be placed on a sewerage truck.
The case for the Respondent
The case for the Respondent is summarised in the termination letter, which states the Applicant engaged in conduct that was unlawful, in breach of the relevant enterprise agreement and employment contract, and in breach of the Code of Conduct.
The dismissal arose from a review of CCTV footage with the intention of ascertaining the Applicant’s whereabouts on 1, 2 and 8 May 2024, as he was supposed to be at work on those dates but no-one could confirm seeing him.
Mr Brierley, who reviewed the CCTV footage of the Applicant taking the items from the store to his car on 1 May 2024, gave evidence that what most concerned him about the CCTV footage was that it appeared to show the Applicant acting in an evasive and erratic manner. Specifically, he saw what appeared to be the Applicant:
a.Waiting until no one was in the store shed before entering;
b.Removing items from the store shed;
c.Looking around after leaving the store shed;
d.Stopping behind a truck and waiting until other team members in depot had moved to avoid being seen; and
e.Walking around another vehicle and looking around before making his way to his personal vehicle.
This conduct, in Mr Brierley’s view, was severe enough to warrant a show cause process.
Mr Brierley gave evidence that while the Applicant admitted taking the items, apologised and said it would not happen again, he formed the view that the Applicant had failed to provide a meaningful justification or response to the allegations made against him in the show cause letter. Specifically, he did not provide a reason for taking the items without permission, and taking them in what appeared to be a devious manner.
Mr Bentley gave evidence that, with express authorisation, employees are occasionally permitted to use Icon Water items for personal use. He said there is no practice, nor would it be permitted by Icon, for an employee to take new items from the store, charge it to a cost centre code, place it in their personal vehicle and use it for personal use, having not asked a manager for permission to do so.
The Applicant checked out the items from the store and allocated it to a cost code, knowing he was taking it for personal use. In doing so he engaged in misconduct, argued the Respondent.
Mr Bentley gave evidence about cost codes. The cost code used by the Applicant was in relation to the Respondent’s sewer reticulation programme. Mr Bentley said that accurate use of cost codes was important because it recorded what equipment was taken and for what purpose, which also has budgetary significance. Mr Bentley gave evidence that by recording the items against a particular code, the Applicant was falsely making it appear that he had taken the item for a legitimate work purpose, instead of personal use which is the reason he took the items.
There is no evidence, says the Respondent, that the Applicant returned the items. The Respondent also highlighted that throughout the show cause process, while the Applicant knew there was an issue about whether the items were returned, at no time did he say that he had returned the items. In fact, the Applicant did not say he returned the items until he filed his evidence in these proceedings.
The Respondent pointed to the show cause and termination letters to support its contention that the valid reason for the termination was that the Applicant removed items for personal use without authorisation. It did not accuse the Applicant of theft and is not required to prove that theft occurred in order for there to be a valid reason for dismissal.
In this regard, the evidence of Mr Brierley is that having considered the Applicant’s response in the meetings, the CCTV footage, the failure to seek authorisation and other recent breaches of policy by the Applicant, he formed the view that the Applicant did not provide a sufficient explanation as to why he took the items without permission, and this was the reason for the dismissal.
The Respondent contends that the CCTV footage shows an intention by the Applicant to avoid being seen while taking the items from the store to his personal vehicle. In the Respondent’s closing submissions, the Applicant’s actions as shown on the CCTV footage were described as follows:
“… So at the beginning part of the video, at 8:05 am and 35 seconds, we see Mr De Beer walking down the left-hand side of the video towards his personal vehicle and so just for purposes – and we'll explain this when we get to the footage – but he comes out of the store shed. There's a bay of trucks he walks through and then the carpark with the vehicle is further down that direction he's heading in, out of sight.
He's moving relatively expeditiously, confidently through the footage, through the truck bay towards his vehicle with what appears to be no intent of stopping near the trucks before at 8:05:35, which is the first point, he stops, does a right-angle turn and doubles back, recovering ground he's just covered. Ultimately under cross-examination towards the end of the cross on the CCTV footage in relation to this turn, he ultimately says he must have changed his mind about where he was heading. That's his reason: 'I changed my mind as to what I was going to do'. After he goes towards the trucks he again starts to head out of the bay towards his vehicle again - that's at 8:05:51 - before he stops, turns his head to the left, before continuing to his vehicle.
It's quite a deliberate stop and look before he goes ahead. Asked about this, he says he thinks heard something. Moments later, at 8:05:59 he does a complete 180. He just looked to his left, walked towards his vehicle and yet again does a 180 and heads back and away again, effectively turning around on a dime, to use that expression. Under cross-examination his explanation for this was it was another change of mind. So he's changed his mind twice already in this scenario. He then loiters around some of the vehicles, not at the back looking to see if there's a plunger, but at the front and at 8:06:41 we see that. He's pausing at the front of the vehicle and when asked about that, towards the end of the cross on the CCTV footage, he said he's not sure what he's doing there.
After that, he then leaves and walks promptly and expeditiously towards his car. Taken in totality, we say this shows that he has the intent of taking the equipment to his car. At various points he decides to stop, move towards trucks where he might be seen to be perhaps putting the equipment on the trucks or looking for things and then when the coast is clear again, he starts walking out and that's what we're saying. He's looking for the coast to be clear to make a walk from the truck bay to his vehicle because there are people in the vicinity walking in and out throughout the footage …”[1]
The Respondent contends there is no other rational explanation for the Applicants actions as shown in the CCTV footage other than he knew he was doing something he shouldn’t and was trying to conceal his behaviour.
The Respondent noted that this is not a case of an employee with an unblemished employment record. It identified a recent performance review in which two areas of concern were raised with the Applicant about communication and notification of absences. A further issue of timekeeping and punctual attendance at work had been raised with the Applicant. There is also a formal warning issued to the Applicant in February 2024 resulting from his use of highly inappropriate language (ie cunt) in a formal work document. The evidence of Ms Bowerman dealt with some of these issues.
CCTV footage
There is a dispute about the use of the CCTV footage and whether it was lawfully obtained. I am satisfied it was. An employer in the ACT can conduct surveillance of a worker if they have given a written notice that they are going to conduct that surveillance, and it is conducted in accordance with the notice. In this context the notice also needs to state that the employer may use the surveillance to take adverse action. I am satisfied that the Respondent’s Workplace Surveillance Procedure meets these requirements. Attachment A (Notice of Ongoing Workplace Surveillance) of this procedure specifically states that the Respondent may use surveillance records to take adverse action against a worker, including disciplinary action. In addition to the Procedure, the Applicant’s employment contract informs him that there is continuous ongoing surveillance that may be used for purposes including discipline and performance. I also note that there was no objection to the tender of the CCTV footage by the Applicant.
Consideration
Protection from Unfair Dismissal
There is no dispute and I am satisfied that the Applicant is a person protected from unfair dismissal by virtue of s.382 of the Act.
A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
There is no dispute that the Applicant was dismissed and that subsection (c) and (d) do not apply. The question, therefore, is whether the dismissal was harsh, unjust or unreasonable.
Was the dismissal harsh, unjust or unreasonable?
The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
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.
I am required to consider each of these criteria in reaching my conclusion[2], to the extent they are relevant to the factual circumstances of this case.
The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[3] 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.”
Valid reason - s.387(a)
There must be a valid reason for the Applicant’s dismissal, although it need not be the reason given to him at the time of the dismissal.[4] The reason(s) should be ‘sound, defensible and well founded’[5] or justifiable on an objective analysis of the relevant facts, and should not be ‘capricious, fanciful, spiteful or prejudiced’.[6]
In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred[7]. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it[8].
Further, the Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied that the termination of the employee was for a valid reason[9].
There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision-making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
Having considered the evidence, I find that there was a valid reason for the Applicant’s dismissal.
The Applicant accepts he was aware of the Code of Conduct before he removed the items from the store, and that when he took the plunger it was for the purpose of dealing with a sewerage issue at his own home. He further accepts he did this without first seeking approval.
The Applicant also accepts that by using the plunger for his own personal use without permission, he was in breach of two provisions of the Code of Conduct.
As a result, I am satisfied that the conduct that led to the dismissal occurred.
I am also satisfied that the conduct was serious enough to warrant dismissal. To this end, I agree with the the Respondent’s description of the Applicant’s actions as shown on the CCTV footage. The Applicant was unable to provide a satisfactory explanation of his actions. Absent a satisfactory explanation, I agree with the Respondent that his actions as shown in the CCTV footage lead to a conclusion that he knew he was doing something he shouldn’t and was trying to conceal his behaviour.
Had the CCTV footage shown him simply walking to his vehicle, I would likely have formed a different view about whether there was a valid reason for his dismissal. However the lack of rational explanation by the Applicant of his actions as shown on the CCTV footage does not support the Applicant’s contention that he believed he could borrow the Respondent’s property without authorisation.
There is insufficient evidence to make a finding about whether or not the items were returned. However in my view it is not necessary to do so given the termination letter makes clear that it was the taking of the items without permission for personal use that was the reason for the dismissal. There was no allegation of theft in the show cause or termination letters.
To the extent it is necessary to do so, I accept the Respondent’s evidence that the other employees named by the Applicant had explicit or implied authority when they used its property for personal use.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[10] in explicit terms[11] and in plain and clear terms.[12] In Crozier v Palazzo Corporation Pty Ltd[13] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[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 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”[14]
An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the 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.[15] This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[16]
The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to the Applicant before his dismissal was effected.
On the evidence before me, I am satisfied that the Applicant was notified of the reason for his dismissal in the meeting he attended and in the Show Cause letter. There seems to be no dispute that notification of the reason was given.
Further, I am satisfied he was given an opportunity to respond to the reason. The Applicant, through the Show Cause letter, was provided the opportunity to show why his employment should not be terminated. The Applicant was informed that he should be prepared to raise all matters that he wanted the Respondent to consider before it made a final decision about the Applicant’s ongoing employment. To this end, he was invited to a meeting nine days later and was also given an option to provide a response in writing, or to do both.
Unreasonable refusal by the employer to allow a support person - s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
There is no dispute that the Applicant was provided with the opportunity to have a support person, and did in fact have a support person in the meetings with the Respondent.
Warnings regarding unsatisfactory performance - s.387(e)
The Applicant was not dismissed for unsatisfactory performance and so this factor is not relevant.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
I am satisfied that the size of the Respondent and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal.
Other relevant matters - s.387(h)
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
The Applicant submitted that there were other relevant matters for consideration.
First, he said there were other employees who engaged in similar conduct and were not dismissed. I accept the evidence of Mr Bentley that the persons named by the Applicant had either sought and obtained permission, or that there was implied permission given the particular circumstances of those other persons.
Second, the Applicant said that his dismissal by email was callous. I accept that the Applicant was asked whether he wanted to be notified of the outcome of the show cause meeting in person or in writing and he did not express any preference. As a result, I am not satisfied that this makes the dismissal harsh.
Third, the Applicant was not paid pro-rata long service leave on termination. In the circumstances of the Applicant’s dismissal for reasons of serious misconduct, I am not satisfied that he was entitled to pro-rata long service leave.
Finally, the Applicant submitted that his termination was a disproportionate response to the misconduct he engaged in. For the reasons already given, I am not satisfied that dismissal was a disproportionate response.
Conclusion
Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am not satisfied that the dismissal was harsh, unjust or unreasonable. As a result, the application is dismissed.
DEPUTY PRESIDENT
Appearances:
S Wescott of WWC Lawyers for Josephus De Beer.
L Izzo of Australian Business Lawyers & Advisors for Icon Water Limited.
Hearing details:
2024.
By video:
October 22.
[1] Transcript PNs 1224-1227.
[2] Sayer v Melsteel[2011] FWAFB 7498.
[3] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
[4] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
[5] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
[6] Ibid.
[7] Edwards v Giudice (1999) 94 FCR 561.
[8] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
[9] Miller v University of New South Wales (2003) 132 FCR 147
[10] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
[11] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[12] Previsic v Australian Quarantine Inspection Services Print Q3730.
[13] (2000) 98 IR 137.
[14] Ibid at 151.
[15] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[16] RMIT v Asher (2010) 194 IR 1, 14-15.
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