Kevin Morrison v Yooralla Society

[2013] FWC 6564

[2013] FWC 6564

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Morrison
v
Yooralla Society
(U2013/8243)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 11 SEPTEMBER 2013

Application for relief from unfair dismissal - summary dismissal

Introduction

[1] On 4 April 2013, Mr Kevin Morrison filed an application under s.394 of the Fair Work Act 2009 (‘the Act’) against Yooralla Society for an unfair dismissal remedy. He was summarily dismissed without notice on 28 March 2013 for alleged misconduct.

[2] The matter was conciliated and no settlement was reached. Pursuant to s.596(1)(a) I granted permission for the respondent to be represented by a lawyer because it would enable the matter to be dealt with more efficiently, given the complexity of the matter. I am satisfied that the jurisdictional requirements of s.396 and elsewhere are met. The matter was set down for arbitration before me. Pursuant to s.399 the matter was heard by hearing given the decision of the parties to cross examine witnesses.

[3] Documents were produced by the respondent as ordered by the Commission at the request of the applicant. Given the sensitive nature of a report by Mr McNeil, and with the consent of the parties, I ordered that its contents remain confidential under s.594 of the Act.

[4] Written submissions and witness statements were filed and the following witnesses gave evidence:-

● Mr Kevin Morrison
● Ms Susan Hamley
● Ms Michelle Goss
● Ms Monique Minns
● Mr Roger Garnham

[5] I have had regard to all the submissions and evidence. This decision was given in transcript on 21 August 2013 1.

Consideration

[6] First of all I am satisfied of the jurisdictional matters set out in section 385 and 386 of the Act. The issue before me is that set out at section 385(b), whether the dismissal was harsh, unjust or unreasonable. Section 387 sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. In relation to section 387(a) it provides:

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.

[7] In this matter the employee, Mr Morrison, was summarily dismissed without notice on the basis of alleged misconduct. The procedure followed was firstly he was advised on 3 December 2012 allegations had been made, secondly an investigation was conducted by an independent investigator in January 2013 at which Mr Morrison put his views, thirdly on 18 February 2013 a letter was provided to Mr Morrison setting out the allegations which were relied on today 2. That letter is attached to the applicant’s witness statement and paragraph 8 of that letter was abandoned during proceedings. However, the other allegations were not abandoned.

[8] A number of concessions were made by Mr Morrison in relation to those allegations. First of all, in relation to paragraph 2 of the 18 February 2013 allegations letter he accepted that he had called Mr.Bevan “fat and lazy.” Secondly, he accepted that he had used the words “f-u-c-k,” but not “c-u-n-t” towards Mr.Bevan. Thirdly, he accepted that he had said to him in a raised voice that he needed to get off his “fat arse” and called him a “lazy f - - - and to do some work.” In relation to paragraph 3 he accepted that he called him a “fat lazy f - - -.” He denied a number of the other allegations in that paragraph. In relation to paragraph 4 he accepted that he used a raised voice towards Mr Bevan and a former supported employee, M.C.

[9] He accepted that he accused Mr Hussell of taking an inordinate time when he goes to the toilet and that he asked questions of a sexual nature about what he had been doing in there, including, “Have you been looking at porn?” (paragraph 5). He accepted that he engaged in a conversation during a smoko in which he referred to the penis size of his son. He denied that he initiated that conversation (paragraph 6). He accepted that he asked two supported wage employees and clients, Mr Hussell and Ms Goss, by repeatedly asking them if they were dating (paragraph 9). He said it was only twice. Ms Goss said it was four to five times a day.

[10] Ms Goss gave evidence about a number of these matters and I quote:

I had seen Kevin go to touch Jeremy in the crotch area when we were out at the front having our smoko break. I didn’t see any contact when Kevin tried to touch Jeremy. Jeremy had jumped back. I saw his facial expression. He was not very happy about this. I did not speak to Jeremy or Kevin about what I had seen. To me it looked like Kevin was joking around. However, I still felt it was inappropriate because Kevin was supervising Jeremy and Jeremy has a disability. “You don’t do those sorts of things,” this is what I said to Anthony. 3

[11] A number of witnesses gave evidence about the nature of the workplace and the clients and supported wage employees. I accept that they are persons of a degree of vulnerability and that the employer owes a duty of care to persons of that degree of vulnerability. Ms Goss also said 4 that Mr Morrison asked them about whether or not they were dating and said that he said it four to five times a day until eventually he was requested to stop. She said that and I quote:

I thought I could handle the issue but I don’t think I’d handled it that well. I did think I should have gone to Monique. I did ask Kevin to stop going on about it. Kevin did stop. However, working with him was difficult as his attitude changed.

[12] I accept the evidence of Ms Goss where it is inconsistent with that of Mr Morrison. I accept that her allegations are correct. Ms Minns gave evidence 5 that Mr Hussell had told her that Mr Morrison had made gestures at his groin, there had been no contact and this had happened more than once. He said this had stopped after Mr Hoyle had left.

And he said to me he did not report the incident sooner because he had enough to worry about at the time and did not want to make it worse. Mr Hussell said he was not comfortable working near Mr Morrison.

[13] Ms Minns said she was concerned about the nature of the allegation so she arranged for Mr Hussell to work with her rather than out on the factory floor with Mr Morrison.

[14] In her witness statement Ms Minns records that Jeremy, a supported employee:

Told me that Kevin had touched him on the genitals more than once and that had stopped after Collin Hoyle left Cattle Industries -

[15] I note that this is inconsistent with the incident report lodged by Ms Minns 6.

[16] There is a clear difference there. Ms Minns explained that the difference was accounted for by the fact that Mr Hussell changed his story on being questioned about the nature of the incident. These differences in accounts are not uncommon in these sorts of incidents and I accept that Mr Hussell put different versions of events at different times. However, I accept that the nature of the incident was inappropriate and of a serious nature. It was inappropriate and of a serious nature because of the nature of the gesture towards the groin area, which is sexual in nature, because of the nature of the client concerned, Mr Hussell, who had an intellectual disability, was a supported wage employee and a client, who was vulnerable and towards whom a duty of care was owed.

[17] I also accept that Mr Morrison was trained in a certificate IV module which specifically dealt with the need to treat employees with dignity and in a respectful manner. He knew that such a gesture and conduct was wrong or should have known that it was wrong. The same observations can be made about questions about the toilet conduct of Mr Hussell and questions about the dating activities of Mr Hussell and Ms Goss. Such questions were inappropriate, not acceptable in a workplace of this kind which included employees with a special vulnerability who needed to be treated with some care and respect as they had some vulnerability.

[18] The failure to call Mr Hussell to give witness evidence was not challenged, but in any event was explained by Ms Minns and I accept her explanation, namely, he has an intellectual disability, was shy and was scared of Mr Morrison. It is true there was a delay in notifying the police. That was also explained by Ms Minns and even if the delay was not best bureaucratic practice it does not alter the fact that certain conduct was engaged in by Mr Morrison of an inappropriate nature. I do not accept the allegation that the termination of employment for misconduct was on the basis of some form of sham in order to avoid paying redundancy pay. Allegations of this nature are a serious matter. They were properly reported to the police.

[19] I find that there was a valid reason for termination of employment and that valid reason is made out in terms of the conduct described in the allegations letter of 18 February 2013 7. I find that there was a valid reason for termination of employment, and that each of the conducts described at paragraphs 1, 2, 3, 4, 5, 6, 7 and 9 were each a valid reason for termination of Mr Morrison’s employment. A number of those matters are of a serious nature, in particular paragraph 1, paragraph 9 and paragraphs 5 and 6. In a number of matters the paragraphs overlap, in particular paragraphs 2 and 3 and 5 and 6. Nevertheless, that is not of great significance in the present matter. I find there were valid reasons for termination of Mr Morrison’s employment. Those valid reasons were of a serious nature.

[20] Secondly, I find that Mr Morrison was notified of that reason in the letter of termination and before, within section 387(b).

[21] Thirdly, within section 387(c) I find that Mr Morrison was given an opportunity to respond to reasons related to his conduct, firstly in relation before the investigator and secondly, at a meeting of 28 February. I accept the evidence of Mr Garnham 8 and Ms Hamley9 concerning the conduct of that meeting. I accept that they outlined the nature of the allegations and gave Mr Morrison the opportunity to respond. Understandably, he was somewhat upset and in any event he had said that he had already given his version of events to the investigator. Either way, he was given an opportunity to respond.

[22] In relation to s.387(d), there was no unreasonable refusal by the employer to allow a support person. Mrs Morrison, indeed, attended as a support person and was allowed to do so.

[23] Section 387(e) is not relevant; nor are paragraphs (f) and (g). This is a large enterprise with dedicated human resources management specialists and expertise and can be expected to follow proper unfair dismissal procedures.

[24] In relation to section 387(h) I have already made a number of findings about the special nature of the employees in this workplace and the special nature of the duty of care. A higher degree of care is needed with employees of such a nature who have a higher degree of vulnerability.

[25] In exhibit Y1 the respondent employer sets out in paragraphs 6 to 10 an analysis of the nature of the serious misconduct and the test that has to be satisfied. With respect I adopt those submissions. In this case the conduct was of such a degree of seriousness that summary dismissal was appropriate. I find in all the circumstances that the dismissal was not harsh, unjust or unreasonable. In the dismissal Mr Morrison was afforded or accorded a fair go all round. The conduct described in witness evidence was partly conceded and partly denied by Mr Morrison. However, given the conduct that was conceded it is not inherently unlikely that other conduct claimed to have occurred took place. Quite the contrary, the further allegations made by Ms Goss and others are consistent with the conduct that was expressly admitted by Mr Morrison.

[26] At the conclusion of proceedings I thanked the parties for attending. I expressed regret that the proceedings were of a difficult nature for everybody but that was the nature of these proceedings. I said that it was unfortunate and I regretted it, but that nevertheless that is the task we have. I wished Mr Morrison well in his future employment. I also wished Yooralla well in the future conduct of their business.

[27] An order dismissing the application contained in PR540676 was issued on 23 August 2013.

DEPUTY PRESIDENT

Appearances:

Mrs N Morrison for the applicant

Mr J Tracey of counsel for the respondent

Hearing details:

2013

Shepparton

21 August

 1   This is an edited version of the decision in transcript. I reserved the right to provide further reasons for decision [PN1345].

 2   Exhibit Y4, Attachment MAM 13

 3   Exhibit Y3, paragraph 8

 4   Exhibit Y3, paragraph 2

 5   Exhibit Y4

 6   Exhibit Y4, Attachment MAM5

 7   Exhibit Y4, MAM13; and attached to Exhibit M1 (page 21)

 8   Exhibit Y5 paragraph 19

 9   Exhibit Y2 paragraphs 16-20

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