Lawrence Mario v ESS Compass Group Australia
[2022] FWC 1937
•22 JULY 2022
| [2022] FWC 1937 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lawrence Mario
v
ESS Compass Group Australia
(U2021/4645)
| DEPUTY PRESIDENT LAKE | BRISBANE, 22 JULY 2022 |
Application for Unfair Dismissal Remedy – where the Applicant was not unfairly dismissed.
On 28 May 2021, Mr Lawrence Mario (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with ESS Compass Group Australia (Respondent). The Applicant seeks compensation for lost wages, humiliation, and damages to his health.
The matter was originally set for conciliation on 18 June 2021 before a staff conciliator. The conciliation could not take place as a result of the Applicant’s health. The matter was then allocated to Commissioner Bissett who issued directions for the filing of material and the matter was listed for mention. The Commissioner dealt with an issue relating to the fact that the Respondent had raised a Jurisdictional Objection on the basis that the application had been filed prematurely. On 15 June 2021, the Commissioner ordered that the application be amended to have been made on 25 June 2021.[1]
On 22 June 2021, the matter was then allocated to me and directions were issued for the filing of material.
It is noted at the outset that there has been a significant amount of time elapsed between the matter having been raised and having been heard as a result of the Applicant’s illness. The matter was ultimately listed for hearing on 29 June 2022. In the days leading to the hearing the Applicant sent several emails to Chambers outlining his position and supplying ‘evidence’. The Applicant regularly raised that he felt the matter was taking too long and should be decided upon based on the material he had provided.
Applicant’s Submissions
The Applicant provided a significant quantity of material that he submitted supported his position that the dismissal was unfair. The material was supplied in several disconnected emails and would occasionally exclude the Respondent. On the day of the hearing, the Applicant provided additional material in the form of a witness statement and a recorded phone call. The Respondent highlighted at the hearing that this provision of late material put them at a disadvantage to attempt to answer the Applicant’s case.
The Applicant’s case in short was that the Respondent terminated his employment without fair process during a difficult period in his personal life. The Applicant submitted that the reason given by the Respondent (namely emails sent from his account) had not been fully investigated. He submitted that the offensive emails sent from his account were sent by his partner without his direct input or knowledge. The Applicant submitted that the Respondent did not follow a fair process and did not carry out an investigation into the reasons provided for the termination of his employment.
The Applicant also made reference to the alleged treatment he received from the Respondent and that he had been underpaid on several occasions. He further made statements that he had been bullied and treated unfairly by Mr Shane Taylor (Manager). He stated that he was put under financial strain as a result of an ‘illegal stand down’ of the Respondent.
The Applicant also provided a recording of a conversation between himself and Ms Melinda Heal (Crib Cook), an employee of the Respondent. Ms Heal’s statement was that she had experienced issues with Mr Taylor and his management. The Applicant provided this statement in the aforementioned disconnected emails and the witness was not called for cross-examination, nor was her statement brought by the Applicant as an exhibit for the proceeding. I therefore cannot test the validity of this evidence.
Ultimately, the Applicant stated that the Respondent had not followed the lawful and correct procedure for investigating the emails and that the Respondent could not provide evidence that he himself had sent the emails. The Applicant stated that by not having a face-to-face meeting with himself to discuss the emails, the Respondent had not followed the ‘correct termination process’.
Witness Evidence of Natasha Samuel
Ms Natasha Samuel (the Applicant’s former partner) stated that she had been sending emails on the Applicant’s behalf and would do so on occasions where the Applicant had little or no knowledge of the contents.
Ms Samuel stated that she had knowledge of the show cause letter and that she provided a ‘rough’ explanation to the Applicant of the process that the Respondent was undertaking. She stated that she was angered by the process and that she found it difficult to convey the issues from the Applicant’s perspective. She stated that the warning letter had trigged an emotional response in her and that she was frustrated and angered by the warning letter.
Ms Samuel stated that she had sent the emails to the Respondent, and that she did so without considering the consequences as a result of her state of mind.
She stated that her emotional state was further affected by the financial difficulties caused by the actions of the Respondent, the boarder closures as a result of the COVID-19 pandemic, and the loss of her mother.
Ms Samuel stated that she believed that there were individuals with the Respondent who knew that there had been “people”, other than the Applicant, sending emails through the Applicant’s account. She also stated that emails sent by the Applicant would have his name signed at the bottom.
Cross-Examination by the Respondent
Ms Samuel stated that she had authority to send emails on the Applicant’s behalf and that she had detailed knowledge of the Applicant’s leave details and pay information. Ms Samuel stated that the Applicant had no knowledge of the emails that she had been sending and that she knew of the details regarding his pay by reading his contract. She stated that she knew specific details regarding his pay and roster previously.
Ms Samuel denied that the Applicant had instructed her to send the emails directly during the period.
Ms Samuel stated that the Applicant would email the Respondent and sign his name at the bottom, and that emails which lacked the Applicant’s name were sent by herself. She stated that the reason she had specific knowledge about the Applicant’s pay and roster was because she previously had knowledge of his working conditions as his partner.
Ms Samuel stated that she had not discussed the show cause and warning letters with the Applicant and that she did not feel that it warranted discussion with the Applicant. She stated that she was effectively separated from the Applicant at the time the show cause and warning letters were provided to the Applicant. The reason being that the relationship between herself and the Applicant had ended.
Ms Samuel stated that she continued to send emails through the Applicant’s email address even after their relationship had effectively ended. She stated that she had access to the email addresses for the Respondent’s Managing Director and Regional Director from the Applicant’s contact details and sent the emails in anger completely independently of the knowledge of the Applicant.
Respondent’s Submissions
The Respondent submitted that the reason for the termination of the Applicant’s employment was his repeated breaches of the Respondent’s Code of Conduct and Behaviour Standards Policy (the Policies). The Applicant was aware of the requirement to comply with these policies and had received training on the Behaviour Standards training in July 2018. The Applicant had signed a contract which referred to the Policies in June 2018.
Relevantly, the Respondent’s Code of Conduct reads as follows:
“Code of Conduct
Prohibited conduct
Threatening a person associated with Compass or our clients and use of … abusive language;
…
Refusal or failure to obey any lawful and reasonable instruction…”
Further, the Respondent’s Behaviour Standards Policy states:
“Behaviour Standards Policy
We are professional, polite, honest and transparent when dealing with clients, consumers, suppliers and colleagues.”
The Respondent stated that the Applicant engaged in behaviour that breached the above policies by repeatedly and frequently sending “rude, intimidating and often threatening email and written correspondence” to employees of the Respondent.
The Respondent submitted that the Allegations made by the Applicant in these emails of dishonesty, bribery, and ‘blackmail’ on behalf of its employees were baseless and unsubstantiated.
The Respondent maintained that they had followed due process and had allowed the Applicant the opportunity to respond to the breaches, however he refused to participate.
Witness Evidence of Sarah Bagshawe
Ms Sarah Bagshawe provided a written witness statement with annexures on behalf of the Respondent. Ms Bagshawe is employed as the General Manager People and Safety for Offshore and Remote for the Respondent.
Throughout the Applicant’s employment as Head Chef, he resided in New Zealand despite his employment contract point of hire was Brisbane. On 14 March 2020, the Applicant contacted his Area Manager advising that his family had been in close contact with someone who had tested positive to COVID 19. They agreed that he should self-isolate, and he was paid his ordinary time earnings for this period. It became apparent during this period that the Applicant had misrepresented his exposure to COVID-19 and he in fact had not been in contact with a positive person or attended the church where the outbreak had occurred. The closure of the New Zealand borders meant that the Applicant could not return to recommence his employment, so he went on leave without pay. Once the borders reopened on 7 August 2020 he refused to return to his role and continued to refuse to return to work or participate in the disciplinary process.
Ms Bagshawe stated that she felt on the whole that the Applicant’s offensive and accusatory emails had significantly affected her and stated that the behaviour she experienced from the Applicant was bullying and harassing in nature. She stated that there were other employees who felt bullied and harassed by the Applicant.
The frequency, content, and method of delivery of emails from the Applicant’s email address led Ms Bagshawe to seek assistance from the Respondent’s Human Resources Team.
Ms Bagshawe stated that employees had sought counselling following and directly related to the Applicant’s behaviour.
The Applicant, during cross-examination of Ms Bagshawe, proceeded to make a statement that he denied sending the emails and had not sent any emails to Ms Bagshawe. He further requested evidence from Ms Bagshawe to prove that employees had sought counselling. The Respondent pointed to an email sent by Ms Bagshawe referring to the emails from the Applicant as bullying and harassing in nature.
The Respondent asserted that all the emails had originated from the Applicant’s email address.
Was the Applicant unfairly dismissed?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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 to the extent they are relevant to the factual circumstances before me.[2]
(a) whether there was a valid reason for the dismissal
When considering whether there is a valid reason for dismissal, the reason must be “sound, defensible or well founded”.[3] A reason which is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason.[4]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[5] “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[6]
The Applicant submitted that Ms Samuels had been the one to send the emails using his email address and that he had little to no input on their contents. The Respondent submitted that it was a reasonable assumption, as to the specificities of the Applicant’s leave and other employment details, that the Applicant had been aware and involved in the sending of the emails. When questioned on whether the Applicant had sent or been involved in sending the emails, his most common response was that he could not recall.
The Respondent had issued a “First and Final Written Warning” to the Applicant in August 2020 for repeated breaches of the Policies. This letter advised that repeated breaches of the Policies may result in disciplinary action, including termination of the Applicant’s employment.
The emails received by the Respondent from the Applicant’s email address were threatening and belligerent in nature and clearly, negatively affected the wellbeing of staff of the Respondent.
Wilful and repeated breaches of a Policy, or Policies, of an employer by an employee will likely constitute a valid reason for dismissal.[7] In this case the Applicant stated that he could not recall sending any offensive emails or that his ex-partner had sent the trail of offensive emails. This does not seem to be the likely or most probable explanation. Both the Applicant and the Applicant’s witness seemed evasive and, in my mind, untruthful in their testimony regarding the emails. The emails all originated from his email account and showed knowledge of specific company information. I am satisfied that the Applicant either sent all the offensive messages or had a leading hand in the drafting of the messages. He did not strike me as a credible witness, and I regard the evidence provided by his partner as somewhat contaminated. The Respondent’s witness struck me as a person of credit and recalled events lucidly and without any spiteful manner. She was a professional who was dealing with a difficult and challenging situation in my opinion.
I am therefore satisfied that there was a valid reason for the termination based upon the Applicant repeatedly breaching the Respondent’s code of conduct making threats, sending a series of offensive messages, and refusing a lawful and reasonable instruction to attend work.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
The Applicant had been warned that continued emails to the Respondent and to the personal email addresses of its employees was unacceptable and may result in the termination of the Applicant’s employment. The Respondent gave at least two formal opportunities to the Applicant to respond to the allegations of inappropriate conduct, to which the Applicant would reply, with words to the effect of “go ahead and sack me”.
The Applicant was invited to attend a disciplinary response meeting on 11 May 2021, which he refused to attend, and further a show cause meeting on 17 May 2021, which the Applicant also refused to attend. The Applicant denies that he received this letter and that the response to it had been sent by Ms Samuels outside of his purview. I find that the Respondent notified the Applicant and that they also provided an opportunity for the Applicant to respond. The Applicant’s denials are not credible and in my view are false.
This factor weighs positively in the Respondent’s favour.
(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
Neither party raised the issue of a support person having been refused for the Applicant. In the show cause and letters from the Respondent, the Applicant was advised that they support and encourage the Applicant to bring a support person to any meeting. He was not refused a support person during the process.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
As to the reason for termination, this factor is irrelevant.
(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed
The Respondent is a large organisation with a resourced human resources department and followed a procedure to address the Applicant’s behaviour. I weigh this factor as neutral.
(h) any other matters that the FWC considers relevant
The Applicant clearly experienced hardship during the months preceding the termination of his employment. The involvement of Ms Samuels in sending emails on behalf of the Applicant, allegedly without his knowledge has been considered.
The Respondent was put in the position where they had to consider the welfare of their employees and the effect that the Applicant’s behaviour – and perhaps that of Ms Samuels’ behaviour on his behalf – was having. Ms Bagshawe, an experienced and competent human resources manager, needed to seek additional support as a direct result of the emails received from the Applicant’s email address.
Conclusion
The Applicant was terminated for repeated breaches of the Respondent’s Policies. The Respondent requested the Applicant attend the meetings related to the allegations and the process of disciplinary action which he refused and kept up the cacophony of abusive and threating emails in defiance of the Policy. The Applicant refused to participate faithfully in the show cause process and claimed at hearing that he had no knowledge of the emails that had been sent from his account.
The Applicant was contradictory in his evidence and responded to the majority of questions with answers ranging from, “I can’t recall” to “there’s no evidence I sent those emails”.
I have considered each of the factors specified under section 387 and find that the Applicant’s dismissal was not harsh, unjust, or unreasonable. The Respondent afforded procedural fairness to the Applicant prior to making the decision for the dismissal. The Applicant chose not to participate. I find that the Respondent conducted themselves in accordance with the matters required under section 387 of the Act.
I am satisfied that the Respondent’s dismissal of the Applicant was not unfair within the meaning of the Act. The Application is dismissed.
DEPUTY PRESIDENT
[1] Lawrence Mario v ESS Compass Group Australia[2021] FWC 3433 per Commissioner Bissett; Lawrence Mario v ESS Compass Group AustraliaPR730734 issued on 15 June 2021.
[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[4] Ibid.
[5] Edwards v Justice Giudice [1999] FCA 1836, [7].
[6] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[7] Browne v Coles Group Supply Chain Pty Ltd [2014] FWC 3670 (Hatcher VP, 10 June 2014) at [62] citing B, C and D v Australian Postal Corporation T/A Australia Post (2013) 238 IR 1 (Lawler VP, Hamberger SDP, Cribb C, 28 August 2013) at [36].
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