Malcolm Bigg v Nortec Employment and Training Limited

[2016] FWC 8163

[2016] FWC 8163 [Note: An appeal pursuant to s.604 (C2016/7260) was lodged against this decision - refer to Full Bench decision dated 18 January 2017 [[2017] FWCFB 39] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Malcolm Bigg
v
NORTEC Employment and Training Limited
(U2016/7185)

COMMISSIONER CAMBRIDGE SYDNEY, 22 NOVEMBER 2016

Unfair dismissal - performance and conduct - valid reason for dismissal - procedural deficiencies - unreasonable dismissal - limited compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 25 May 2016. The application was made by Malcolm Lorne Bigg (the applicant) and the respondent employer is NORTEC Employment & Training Limited (ABN: 88129092280) (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 5 May 2016. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] Unfortunately, the matter was not resolved at conciliation, and it has proceeded to arbitration by the Fair Work Commission (the Commission) which has involved a Hearing conducted in Ballina on 11 October 2016.

[4] At the Hearing, the applicant represented himself, and he provided evidence as the only witness called in support of his unfair dismissal claim. The employer was represented by Ms J Forward from Jobs Australia. Ms Forward called three witnesses who provided evidence on behalf of the employer.

Factual Background

[5] The applicant had worked for the employer for four years. The applicant was engaged in a position described as Skills for Employment and Education (SEE) Teacher/Assessor. The work of the applicant initially involved a combination of regular classroom teaching of literacy, language and numeracy, together with individual pre-training assessments (PTAs). During 2015, the applicant was redirected from regular classroom teaching and he predominantly undertook PTA duties.

[6] The employer is a not-for-profit, community based organisation which provides employment and training services to the community in the New South Wales Mid North Coast and Southern Queensland areas. The employer has approximately 260 employees. Relevantly, the employer provides training to assist unemployed people improve language, literacy and numeracy skills to enhance employment and further education opportunities. Consequently, this aspect of the employer’s operation involves direct contact with individuals who in many instances are underprivileged and vulnerable members of the community.

[7] The applicant’s employment was unfortunately beset with a number of difficulties. The first significant issue occurred in November 2013, when the applicant arranged what was described as a student excursion without first obtaining appropriate approvals. The employer investigated the student excursion incident and the applicant was issued with a final warning in a letter dated 16 December 2013.

[8] The second significant issue occurred in September 2014, and involved the employer receiving complaints from students about the applicant’s behaviour and conduct during a class that he was taking as a relief teacher. The employer investigated these complaints and decided that it would not take disciplinary action, but instead it issued a letter dated 9 September 2014, which outlined certain expectations of particular aspects of the applicant’s performance and conduct as a classroom teacher.

[9] The third significant issue involved a complaint from a student who alleged that she had been sexually harassed by the applicant during a class that the applicant conducted at the Lismore office. The employer investigated this matter and determined that there was no proof that the applicant sexually harassed the complainant. However, it appeared that the employer considered that the applicant’s conduct in respect to the complainant was unacceptable, and it was decided that the applicant would no longer be involved with relief teaching at the Lismore office. The employer issued the applicant with a letter dated 7 August 2015, which included a second final warning regarding the applicant’s continued employment.

[10] The fourth significant issue that arose in respect to the applicant’s employment commenced in about February 2016 when the applicant was issued with a further written warning, which was directed towards concerns regarding the applicant’s performance and conduct. In a letter dated 3 February 2016, the applicant was provided with a further formal written warning which, inter alia, required that the applicant achieve a minimum 80% verification of the PTAs that he performed. The applicant was advised that he was placed on a performance improvement program and a review would be conducted in March 2016.

[11] In March 2016, the applicant made a travel allowance claim in respect of the use of his personal motor vehicle for work-related purposes. The applicant had apparently not followed the protocol for obtaining approval prior to using his own motor vehicle for work purposes, and some concern arose about his claim for travel allowance payment. Subsequently, the applicant was required to attend a disciplinary meeting on 4 April 2016, during which various aspects of his performance and conduct were examined.

[12] The applicant was provided with his third, final warning in a letter dated 7 April 2016. This letter referred to the disciplinary meeting held on 4 April 2016, and, inter alia, indicated that the applicant was required to improve his PTA verification to achieve at least 80% accuracy. Further, the third final warning letter advised the applicant that he was required to ensure adherence to the employer’s policies and procedures including but not limited to its code of conduct, internet and email usage policy, motor vehicle policy and discipline policy. The letter also indicated that a further review of the applicant’s work performance and conduct would be carried out on 9 May 2016.

[13] In late April 2016, the employer became aware that the applicant was allegedly directing other staff members to complete tasks and duties that were part of his role. The employer investigated this issue, and on 4 May 2016, it conducted a disciplinary meeting to provide the applicant with an opportunity to respond to its concerns about the applicant’s conduct regarding the allocation of tasks and duties to other employees.

[14] After the disciplinary meeting, the employer considered that the responses provided by the applicant had not established a satisfactory explanation for his most recent conduct regarding reallocation of tasks and duties to other employees, without management approval. Consequently, the employer decided that it would dismiss the applicant, and on the following day, 5 May 2016, the applicant was advised of his dismissal.

[15] The applicant was provided with a letter of dismissal dated 5 May 2016, which indicated that the dismissal was based upon the applicant’s failure to comply with the required standards of performance and conduct as a SEE teacher. The letter of dismissal referred to the contents of the final warning letter of 7 April 2016, and it also made mention of more recent concerns regarding the applicant’s conduct involving the allocation of his tasks and duties to other employees without appropriate management approval.

[16] Upon termination, the applicant was paid an amount in lieu of notice together with all outstanding accrued entitlements. Following the dismissal, the applicant has attempted to find alternative employment without success.

The Case for the Applicant

[17] The applicant made oral submissions which elaborated upon a documentary outline of submissions. The applicant submitted that his dismissal was harsh, unjust and unreasonable.

[18] The applicant submitted that the termination of his employment was without valid reason. The applicant submitted that the alleged performance and/or conduct issues upon which the dismissal was based had no explicit adverse effect upon the employer. Further, the applicant submitted that his conduct did not amount to a failure to obey any lawful and reasonable direction and, that any breach of policy as asserted by the employer was exaggerated.

[19] The submissions made by the applicant acknowledged that some features of his performance might have required attention and even improvement, but the employer overreacted to these matters, and imposed a regime of disciplinary action and formal warnings which was excessive. The applicant made further submissions which criticised the fact that the letter of dismissal had been issued by the employer’s Chief Executive Officer who had never interviewed the applicant.

[20] The applicant also submitted that one particular aspect of the alleged underperformance for which he was dismissed was subsequently proven false when, after his dismissal, it was revealed that the applicant had, in his most recent assessment, achieved 100% verification of his PTAs. The applicant also submitted that the particular requirement that he had to achieve greater than 80% verification for his PTAs was an imposition on him only, as the employer did not require such performance outcomes from any other employee. Therefore, the applicant did not accept that there was a valid reason for the termination of his employment.

[21] The applicant made further submissions in respect of alleged procedural unfairness. The applicant complained that his dismissal was linked to his previous work history and previous events, and he was not provided with an opportunity to address those matters which were relied upon by the employer as basis for dismissal. Further, the applicant submitted that the employment history portrayed by the employer had not been a fair representation.

[22] In further submissions, the applicant stated that his dismissal from employment was harsh because the employer had not considered that he was 57 years of age and living in an area where it was difficult to gain employment. The applicant also submitted that the dismissal was harsh because he had a five-year-old daughter who had just started public-school and he also had a mortgage. The applicant also said that he had been unfairly singled out, and his dismissal was therefore also unreasonable.

[23] In summary, the applicant submitted that his dismissal was harsh, unjust and unreasonable. The applicant said that there was not a valid reason for his dismissal and he had been singled out and micromanaged. The applicant stressed that after his dismissal it was discovered that he had exceeded the 80% performance requirement which had been unreasonably imposed upon him. The applicant submitted that he should be provided with six months compensation as remedy for his unfair dismissal.

The Case for the Employer

[24] The employer was represented by Ms Forward who submitted that the dismissal of the applicant was not unfair. Ms Forward made oral submissions in amplification of a written outline of submissions.

[25] Ms Forward commenced her submissions by stating that the dismissal of the applicant met the procedural requirements of the Act. Ms Forward said that the applicant had been informed of the issues that concerned the employer, he was provided natural justice, and an opportunity to have a support person.

[26] Ms Forward made submissions which addressed the question of valid reason for the dismissal of the applicant. The submissions made by the employer asserted that the valid reason for dismissal involved the applicant’s significant history of disciplinary issues, behavioural issues, and general failure to perform to the reasonable requirements of the employer. Ms Forward noted that the applicant had been the subject of a long process of performance management.

[27] Ms Forward also submitted that the employer had made significant attempts to assist the applicant including mentoring him, regularly warning him, informing him, and doing everything it possibly could to improve his workplace performance and conduct. According to the submissions made by Ms Forward, the employer could no longer, despite all the alternatives that they had considered, continue the applicant in employment because he was simply unable to do the job that was required of him.

[28] In summary, Ms Forward submitted that the applicant’s repeated failure to comply with the reasonable instructions and requirements of the employer, created frustration and at the very end it was unable to continue the applicant’s employment. Ms Forward submitted that the dismissal of the applicant occurred at the end of a thorough and well-founded performance and conduct management process during which the applicant had been given ample opportunity to improve and rectify the employer’s legitimate concerns. Ms Forward submitted that the applicant’s failure to perform the core requirements of his job meant that the dismissal was not harsh, unjust or unreasonable.

Consideration

[29] The unfair dismissal provisions of the Act include section 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[30] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[31] The reason for the applicant’s dismissal was expressed to have involved a failure to comply with the required standards of performance and conduct in the role of a SEE teacher. The letter of dismissal referred to the (third) final warning issued to the applicant in a letter dated 7 April 2016, and it specifically mentioned the most recent conduct matter involving the applicant directing other employees to undertake duties which formed part of his role.

[32] It was clear from the evidence that the more recent issue regarding redirection of duties to other employees would, of itself, not have been a matter that would have provided sound basis for dismissal. It was readily apparent that the employer decided to dismiss the applicant having considered the more recent conduct issue in the context of the extensive history of performance and conduct concerns that arose throughout the four year period of the applicant’s employment.

[33] Consequently, the consideration of whether valid reason for dismissal existed has extended to an examination and evaluation of the various concerns that gave rise to complaint and disciplinary processes throughout the applicant’s period of employment. There were a number of more notable incidents which, at the time of their occurrence, clearly gave rise to serious concerns on the part of the employer. In some respects, it was surprising that the applicant’s employment endured these incidents such that at the time of his dismissal, the applicant had been issued with a third final warning.

[34] There may have been some understandable accommodation for the applicant’s conduct in respect to the student excursion incident that occurred in late 2013. The applicant was suspended from duty while the employer investigated the circumstances surrounding the unapproved school excursion. At that time, the applicant may have been treated as a relatively inexperienced teacher, and the matter appeared to have been treated by the employer as a genuine, but misguided mistake.

[35] However, it was surprising that the applicant’s employment was continued after the sexual harassment complaint incident of August 2015. The employer investigated this matter and did not conclude that the applicant had engaged in some form of sexual harassment, it nevertheless had serious concerns about the applicant’s conduct because it decided to restrict the applicant’s classroom contact with students. In some respects, this approach may have represented a regrettably equivocal and obfuscated outcome. Particularly in the context of the power imbalance between teacher and student, if a teacher does not conduct themselves in an acceptable manner, a partial avoidance to exposure of any vulnerable student is not a proper or acceptable solution.

[36] The more significant concerns with the applicant’s workplace conduct were interspersed with various less notable conduct and performance issues. Consequently, at the time that the applicant was issued with his third final warning in April 2016, the employment had become so tenuous that even relatively insignificant matters of performance or conduct might act as the catalyst for dismissal. Essentially, the somewhat insignificant transgression involving the redirection of some duties to other employees without approval became the tipping point, and the dismissal which followed was based upon the culmination of conduct and performance concerns which had arisen throughout the duration of the applicant’s employment.

[37] The applicant acknowledged that the employer had legitimate complaint about his conduct and performance. However, he sought to challenge whether this complaint represented valid reason for dismissal by focusing upon the less significant aspects of concern which were issues that were more contemporaneous with the dismissal. During cross-examination, the applicant summarised this position when he said:

“I’m not saying that they don’t have an issue. What I’m saying is the issue isn’t of large enough weight to justify the action of dismissal.” 1

[38] The position articulated by the applicant would have been correct if the more recent matters of concern about his performance and conduct were assessed in isolation. However, a careful evaluation of the totality of the evidence regarding the various conduct and performance issues that arose throughout the period of the applicant’s performance leads to the conclusion that these issues, in combination, provided a sound, well-founded, valid reason for the dismissal of the applicant.

[39] Consequently, there was valid reason for the applicant’s dismissal.

S. 387 (b) - Notification of Reason for Dismissal

[40] The employer provided written notification of the reason for the applicant's dismissal in the letter of dismissal dated 5 May 2016. The letter of dismissal also referred to conduct and performance issues which were identified in the third final warning that was given to the applicant in the letter dated 7 April 2016.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[41] The employer arranged for the applicant to meet with his immediate supervisor, Ms Hodges, on Wednesday, 4 May 2016. During this meeting the applicant was given an opportunity to respond to the most recent performance and conduct issues which had developed, and in particular, the issue regarding the applicant directing other employees to undertake duties which were his responsibility. Clearly, Ms Hodges was not satisfied with the responses and explanations given by the applicant and she raised her concerns regarding the continued employment of the applicant with more senior managers.

[42] After the meeting with the applicant, Ms Hodges and other of the employer’s managers conducted a review of the responses and explanations given by the applicant and they further assessed his overall employment record. These managers then arranged to discuss the question of the continuation of the employment of the applicant with the employer’s CEO, Mr Bennett.

[43] Mr Bennett was briefed on the more recent issues of concern, and he was provided with the managers’ assessment of the applicant’s employment record generally. Based upon this information, Mr Bennett then took the decision to dismiss the applicant. In such circumstances, the employer did not provide an opportunity for the applicant to respond to the broader, cumulative assessment of the array of performance and conduct issues upon which Mr Bennett made the decision to dismiss the applicant. The failure by Mr Bennett to give the applicant an opportunity to be heard in respect to the array of performance and conduct issues, for which he was dismissed, meant that the applicant was denied natural justice.

[44] It is irrelevant whether the applicant may have been able to provide explanation or other responses which may have persuaded Mr Bennett to decide on a course of action other than dismissal. Importantly, the applicant was plainly denied an opportunity to advance any explanation, or offer any defence, or provide other factors which may have had some influence on Mr Bennett’s decision to dismiss.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[45] The applicant was provided with an opportunity to have a support person present to assist him during the meeting with Ms Hodges on 4 May 2016.

[46] Similarly, I am confident that the employer would have provided the applicant with an opportunity to have a support person present at a meeting which should have been held so that he had an opportunity to put his case to Mr Bennett. Regrettably, such a “show cause” meeting was not held.

S. 387 (e) - Warning about Unsatisfactory Performance

[47] The applicant was provided with numerous written warnings about unsatisfactory performance and conduct. During the period of his employment the applicant had received three final written warnings.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[48] I have been cognisant that the employer’s operation is of a medium size. The employer’s business operation may benefit from a review of its employee management practices. In particular, any disciplinary procedures should mandate the opportunity for an employee to be provided with a “show cause” meeting with the relevant decision-maker before the determination of any dismissal from employment.

[49] Further, the employer may also benefit by reviewing its disciplinary practices to ensure that decisive action follows any identification of legitimate concerns, and that it avoid the prospect that an employee might be subject to repeated final warnings, particularly if the employment involves teaching or other direct contact with vulnerable students.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[50] It appeared that the employer did have dedicated employee relations management specialists, and it also had the assistance of specialist advice from an industry body. Consequently it was surprising that a fundamental element of due process was apparently overlooked at the final stage immediately preceding the dismissal of the applicant.

S. 387 (h) - Other Relevant Matters

[51] Due regard has been provided for the applicant’s age, his residential location, and other personal circumstances.

[52] Evidence was provided by some of the applicant’s former colleagues which included a less than complimentary assessment of the applicant’s workplace performance and general behaviour. In this regard, and as an example, the applicant was described as being “misogynistic towards female staff, lazy and very manipulative.” 2 It is important to record that the Commission’s determination of this matter has not been influenced by any of the personal adverse character assessments that were made by former colleagues of the applicant.

Conclusion

[53] The applicant was dismissed because of a combination of work performance and conduct issues which accumulated over the four year period of his employment. The issues which were of more recent concern to the employer, would not, of themself, ordinarily provide valid reason for dismissal. Specifically, conduct such as the applicant having other employees undertake particular tasks or functions which were his responsibility would not be a matter that would be likely to attract dismissal. Further, following the dismissal it was revealed that the applicant had established a 100% success rate with the rectification of previously identified performance inadequacies.

[54] Notwithstanding that these more recent concerns would not ordinarily establish valid reason for dismissal, the evidence presented during the Hearing has established that, when properly considered in the context of the totality of the employment circumstances, the more recent actions of the applicant were a reflection of the cumulative performance and conduct deficiencies which provided valid reason for the dismissal of the applicant.

[55] However, notwithstanding the valid reason for the dismissal of the applicant, he was not provided with an opportunity to provide explanation or offer response in respect to all of the matters which, in combination, represented the reason for his dismissal. The applicant was denied procedural fairness when he was not given any opportunity to provide explanation, or offer a defence, or provide other potentially mitigating information, before Mr Bennett took the decision to dismiss him.

[56] The particular procedure that the employer adopted when it decided to invoke the dismissal of the applicant without first hearing from him about all relevant aspects of his employment inadequacies amounted to a denial of natural justice. Strangely, this absence of a correct procedure was inconsistent with the extensive, detailed and somewhat lenient disciplinary processes which led to the applicant being issued with three final written warnings during the course of the period of his employment.

[57] In summary, the dismissal of the applicant was for valid reason involving established performance and conduct inadequacies. However, the dismissal was implemented by way of an unreasonable and unjust process. The applicant was denied procedural fairness but the employer did have valid reason to dismiss him. Consequently, when these various factors have been carefully evaluated and balanced, the dismissal of the applicant has been found to have been unreasonable.

[58] Therefore, the applicant’s claim for unfair dismissal remedy has been established.

Remedy

[59] The applicant did not clearly articulate the nature of the relief that he sought. In any event, in the circumstances where there was a valid reason for dismissal, and the employer had clearly lost trust and confidence in the applicant, reinstatement would not be an appropriate remedy. Instead, consideration has involved the appropriate remedy in a case where valid reason for dismissal was plainly established.

[60] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.

[61] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 3 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 4.

[62] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[63] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[64] There was no evidence that an Order of compensation would impact on the viability of the employer’s enterprise.

[65] The applicant had four years of service. The applicant would have been likely to have received remuneration of approximately $880 per week if he had not been dismissed.

[66] There was significant prospect that the employment of the applicant would not have continued for any significant period of time. As previously mentioned, the employment of the applicant was tenuous, he had been issued with three final written warnings, and in many respects his general conduct and approach to his work was unsuitable for a teaching position.

[67] Following the dismissal, the applicant has made unsuccessful efforts to mitigate the loss suffered because of the dismissal.

[68] Thirdly, in this instance there was an element of past misconduct of the applicant which contributed to the employer's decision to dismiss. Therefore, the Commission must reduce the amount that it would otherwise Order as compensation.

[69] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[70] There are no other relevant matters in this instance.

[71] Consequently, for the reasons outlined above I have decided that an amount approximating with four weeks remuneration should be provided as compensation to the applicant. That amount is $3,520.00. Accordingly, separate Orders [PR587484] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Mr M Bigg appeared unrepresented.

Ms J Forward of Jobs Australia appeared for the employer.

Hearing details:

2016.

Ballina:

October 11

 1   Transcript @ PN189.

 2   Exhibit 5.

 3 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 4   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR587483>