Michael Adams v Optimum Health Solutions (Goulburn) Pty Ltd T/A Optimum Health Solutions
[2022] FWC 1848
•15 JULY 2022
| [2022] FWC 1848 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Adams
v
Optimum Health Solutions (Goulburn) Pty Ltd T/A Optimum Health Solutions
(U2021/10366)
| COMMISSIONER MATHESON | SYDNEY, 15 JULY 2022 |
Application for an unfair dismissal remedy – valid reason for dismissal – Applicant not notified of reason for dismissal – Applicant not given an opportunity to respond to reason for dismissal – Applicant not warned of unsatisfactory performance before dismissal – dismissal found to be harsh – reinstatement inappropriate – compensation ordered.
On 16 November 2021, Mr Michael Adams (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 Optimum Health Solutions (Goulburn) Pty Ltd T/A Optimum Health Solutions (Respondent). The Applicant seeks financial compensation.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Background
The uncontested factual background to the matter is as follows:
· The Applicant was a Senior Physiotherapist/Clinical Educator employed on a full-time basis[1] and commenced working for the Respondent on 18 September 2017.[2]
· The Applicant was notified of his dismissal on 15 November 2021.[3]
· The dismissal took effect on 15 November 2021.[4]
· At the time of his dismissal, the Applicant was earning $98,000 per annum, being $1,884.62 per week.[5]
However, a significant number of matters are in dispute between the parties in relation to whether there was a valid reason for the dismissal and issues of procedural fairness.
The hearing
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).
Permission to appear
The Applicant sought to be represented before the Commission by a paid agent. The Respondent sought to be represented before the Commission by a lawyer.
Relevantly, s.596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act.[6] The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[7]
On the question of representation, the Applicant submitted that:
· granting representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, as the Applicant had not been involved in a matter of this nature before; and
· it would be unfair not to allow the Applicant to be represented if the Respondent was to be represented.
On the question of representation, the Respondent submitted that:[8]
· granting permission would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. In this regard, the Respondent submitted:
othere is a large, and factually complex, volume of material before the Commission, a large number of witnesses called to give evidence and very substantial differences between the parties in relation to almost all of the events connected to the reasons for the dismissal, which will need to be dealt with in cross-examination; and
oin these circumstances, the conduct of the hearing will be assisted by the involvement of legal representation to ensure the evidence and argument is presented to the Commission more effectively and efficiently, having regard to the volume and complexity of the materials before it;
· the Respondent is unable to represent itself effectively and it would not be fair not to allow it to be represented; and
· it would be unfair not to allow the Respondent to be represented taking into account fairness between the parties, particularly if the Applicant is represented by an experienced industrial advocate.
Having considered those matters, I determined that:
· allowing the Applicant to be represented by a paid agent would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; and
· allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
I therefore decided to exercise my discretion to grant permission for both parties to be represented.
Accordingly, at the hearing which took place across two days on 31 March and 1 April 2022, the Applicant was represented by Crossley, initial M, and the Respondent was represented by Thompson, initial E, with Shokouhi, initial S, instructing counsel.
Witnesses
The Applicant gave evidence on his own behalf and the following witnesses also gave evidence on his behalf:
· Hee-Lian Foreman, former colleague of the Applicant;
· Tim Holmes, father of a former client of the Applicant; and
· Darrell Duncum, former client of the Applicant.
The following witnesses gave evidence on behalf of the Respondent:
· Naomi Desira, facility manager of the Respondent since mid-2020;
· Timothy Gale, director of the Respondent;
· Brad Sculley, general manager of the Respondent; and
· Marc Seymour, director of the Respondent.
Submissions
The Applicant filed submissions in the Commission on 23 February 2022. The Respondent filed submissions in the Commission on 11 March 2022. Submissions in reply were filed by the Applicant on 18 March 2022.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from his employment.
Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
I am therefore satisfied that the Applicant has been dismissed within the meaning of s.386 of the FW Act.
Initial matters
Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
It is not in dispute and I find that the Applicant was dismissed from his employment on 15 November 2021 and made the application on 16 November 2021. I am therefore satisfied that the application was made within the period required in s.394(2) of FW Act.
Was the Applicant protected from unfair dismissal at the time of dismissal?
I have set out above when a person is protected from unfair dismissal.
Minimum employment period
Section 383 of the FW Act provides that the minimum employment period is:
(a) if the employer is not a small business employer – 6 months ending at the earlier of the following times:
(i)the time when the person is given notice of the dismissal;
(ii)immediately before the dismissal; or
(b) if the employer is a small business employer – one year ending at that time.
Section 23(1) of the FW Act provides that a national system employer is a small business employer if the employer employs fewer than 15 employees at that time.
Section 23(3) of the FW Act provides that, for the purposes of calculating the number of employees employed at a particular time, associated entities are taken to be one entity.
The Respondent submitted that it:
· provides a range of multidisciplinary allied health services, including physiotherapy, exercise physiology, occupational therapy, dietetics, speech pathology, hydrotherapy and podiatry; and
· had 14 employees; and
· is part of a network of other allied health practices which are all branded Optimum Health Solutions and run through a series of related corporate entities.[9]
The Respondent’s response to the application indicates that the Respondent, as a separate legal entity, employed 14 employees at the time of the Applicant’s dismissal but that the broader Optimum Health Solutions group had 120 employees.[10]
I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time, including those employees of its associated entities.
It was not in dispute and I find that the Applicant was an employee, who commenced his employment with the Respondent on 18 September 2017 and was dismissed on 15 November 2021, a period in excess of 6 months.
I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Applicant’s annual rate of earnings
It was not in dispute and I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings (being $98,000.00 per annum), was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2021, is $158,500.00.
I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).
The Respondent itself submitted that the Small Business Fair Dismissal Code does not apply.[11]
I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW 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.[12]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[13] and should not be “capricious, fanciful, spiteful or prejudiced.”[14] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[15]
Submissions
The Applicant submitted that there was no valid reason for the dismissal because the allegations made against him by the Respondent did not satisfy the standard of proof required. In particular, the Applicant submitted that the Respondent has failed to satisfy the standard of proof beyond the balance of probabilities and as required applying the Briginshaw Principle.[16]
The Applicant submitted that:[17]
· he had experienced severe bullying and harassment from Mr Seymour since 2018;
· in October 2021, he made an application to the Commission for orders to stop bullying (Bullying Application) in relation to Mr Seymour and that, due to his termination, this application was withdrawn;
· the behaviour that the Applicant was concerned about escalated to a “tipping point” on 9 November 2021 when Mr Seymour “shirt-fronted” him after hours and acted
aggressively in his mannerisms and tone in retaliation to the Applicant filing the Bullying Application;
· the allegations were put forward by the Respondent after the Applicant made the Bullying Application; and
· the Bullying Application was directly referenced by the Respondent as justification for the Applicant’s dismissal on 15 November 2021.
The Respondent submitted that there was a valid reason for the dismissal because, throughout 2020 and 2021, the Applicant had a history of repeated incidents in which he:
· regularly used unqualified students to provide clinical care to patients without supervision being present;
· repeatedly failed to abide by the lawful and reasonable requests of his managers; and
· acted in an angry, aggressive or unprofessional manner with staff, referral clients and patients.[18]
The Respondent submitted that the relevant matters are:[19]
· in February 2020, the Applicant permitted two students on their first day of work experience with the practice to perform physiotherapy on patients without supervision;
· in February 2020, the Respondent received a complaint that the Applicant had allowed a Workcover patient to use the gym’s facilities without supervision and that that he had approached another staff member, Ms Amelia Vitek, in an aggressive and intimidating manner when he learnt that she had spoken with management about his work practices;
· on 3 March 2020, the Applicant attended a performance meeting with the Goulburn Practice’s facility managers, Mr Timothy Roberts and Ms Naomi Desira, about students providing clinical care without supervision and the Applicant’s communication with Ms Vitek in which he was told, among other things, that he was required to supervise students at all times and that Workcover patients cannot be left in the gym by themselves;
· in May 2020, the Applicant asked a student to perform a home visit to a NDIS approved patient without him being present during that visit and, following that, two further performance meetings were held in which he was told again that students cannot provide medical care to patients without strict supervision and that Workcover injury patients cannot be left alone in the gym by themselves;
· on 11 June 2020, the Respondent received a complaint from an occupational therapist in its referral network, Ms Emily Marchese, about an email she had received from the Applicant and another performance management meeting was held with the Applicant about his manner of communicating with the business’ referral partners;
· in late June 2020, the Respondent was advised that Ms Marchese did not want to deal with the Applicant any longer and another performance management meeting was held in August 2020, during which the Applicant slammed the desk and shouted at Ms Desira;
· on 7 September 2020, Mr Marc Liddell, general manager of the Respondent, met with the Applicant and issued him with a written final warning letter;
· on 19 November 2020, the Respondent received a complaint from a patient that she had been left alone with a student during her physiotherapy session without the Applicant being present in the room;
· on 8 April 2021, the Applicant attended a meeting with Ms Desira and became agitated and aggressive with her when told that he wouldn’t be receiving a pay rise because of his conduct with staff, students, patients and referral partners over the course of the year;
· on 1 April 2021, the Respondent received another complaint from a patient about the Applicant and further performance management meetings were held with him in April and May;
· in May 2021, the Applicant disappeared from the Goulburn Practice for hours several times a week and, when asked where he would go and why he was gone for hours, he refused to answer;
· in June 2021, the Applicant failed to attend his regular physio and check-up appointments with the elderly residents of the Basin View Aged Care Facility, a major client of the Respondent;
· in July 2021, the Respondent received another complaint from a patient about the Applicant and the Applicant then attended another performance management meeting with management;
· on 13 September 2021, the Respondent received another complaint from a patient about the Applicant;
· some time in middle to late 2021, the Goulburn Practice received a package addressed to the Applicant from an entity in Germany and the directors of the Respondent were concerned that the Applicant, who was involved in body building, may have been arranging for illegal testosterone vials to be sent to the Goulburn Practice;
· in October 2021, the Applicant was served with an Apprehended Violence Order (AVO) by his ex-fiancée and the Applicant went on stress leave for 2 weeks;
· on 28 October 2021, the Applicant issued a ‘Stop Bullying and Harassment Form’ against Mr Seymour; and
· on 9 November 2021, Mr Seymour approached the Applicant to offer his support and expressed concern about his personal life, however the Applicant rebuffed that approach and reported the incident to human resources.
The Respondent further submitted that:[20]
· each of the matters listed above were the subject of numerous performance management meetings before the Applicant’s exit meeting on 15 November 2021 and involved valid reasons for his dismissal;
· the repeated instances in which the Applicant used students to provide clinical care to patients without him supervising or being present in the consulting room or home visit was grossly negligent, unsafe, placed the Goulburn Practice at regulatory risk with the Australian Physiotherapy Association and placed the patient at risk of injury;
· it was unprofessional and unsafe for the Applicant to permit untrained and unqualified students to provide clinical care to patients without a qualified physiotherapist either providing the care or being present in the room while the clinical care was being administered by the student;
· the Applicant’s use of unsupervised students to conduct medical assessments, home visits and provide clinical care to patients involved a clear breach of the Goulburn Practice’s policies and procedures for its university work experience program which required that all students must not, under any circumstances, be left to take assessments or perform any clinical activities with patients without strict direct supervision by qualified staff;
· the Applicant was warned about his unsafe practices by Mr Roberts and Ms Desira in March 2020 and told not to allow students to perform any clinical activities without strict supervision. The Applicant’s subsequent use of students to perform clinical services without supervision during a home visit to a NDIS-approved patient in May 2020 and a physiotherapy treatment session with another patient in November 2020 involved a refusal to comply with a lawful and reasonable direction of his employer to refrain from unsafe work practices;
· the Applicant had been the subject of numerous complaints from patients and customers of the practice with some of these complaints involving unsupervised use of students and refusals to provide the clinical care requested of him;
· there were instances in which the Applicant had engaged in aggressive, demonstrative and unprofessional communications with the practice’s referral partners and fellow staff;
· when confronted with the manner in which had communicated with a referral partner of the practice, the Applicant’s response was to shout at Ms Desira and slam his fist on the desk;
· when the Applicant was not given a pay rise in April 2021, he began to disappear from work and failed to attend or organise a replacement with a major client of the business;
· regular performance management meetings failed to result in any meaningful engagement by the Applicant or commitment to change; and
· the nature, extent and frequency of the complaints from fellow staff, referral partners and patients about the Applicant throughout 2020 and 2021, and the Applicant’s failure to address the Respondent’s legitimate concerns about his conduct and performance with other staff, referral clients and patients, were also “sound, defensible or well founded” reasons for his dismissal.
The Respondent submits that these reasons for dismissal relate to conduct and performance.
In relation to the Respondent’s allegations that there were issues with the Applicant’s performance, the Applicant submitted:[21]
· his most recent performance review was conducted on 27 January 2021 with Ms Desira, Mr Kieran Doyle and Mr Seymour and overall his performance was sound and competent with no critical issues outlined that needed immediate attention;
· he was in the higher averages of the performance scale, was not notified of any issues to be rectified or of any customer or staff complaints;
· the performance review was positive and there was no additional review required or management plan actioned;
· comments made in his annual performance review reflected positive relationships and respectful communication with staff;
· he had never been subjected to performance management and, aside from participating in the annual performance review, there was no additional management or review required;
· there were no additional reviews undertaken by Ms Desira, Mr Doyle or Mr Seymour and there is no record of a professional and behavioural skills plan or development mentorship plan as these did not exist;
· he was not expressly warned at any stage of deficiencies in performance or conduct and received no verbal or written warnings for performance or conduct reasons; and
· he received the accolade of “Highest Biller and Physiotherapist of the Year” in 2019 and this demonstrates he operates at a high caliber.
Further, the Applicant refutes the Respondent’s allegations that there were issues with the Applicant’s conduct and:[22]
· rejects the Respondent’s assertion of any aggressive behaviour toward Ms Desira or female staff and states that he was not presented with any complaint about this prior to his dismissal;
· submits he had healthy and professional working relationships with all staff and that no issues were raised by way of formal complaints or HR correspondence;
· submits he was only in conflict with Mr Seymour;
· submits that he has never left clients or students unsupervised and all students were supervised as per industry standards and protocols outlined in the UC Clinical Placement Manual 2021;
· submits he has never been contacted by students or respective university institutions regarding complaints raised by the Respondent; and
· submits that, when he did not appear for work, he was sick and informed the relevant aged care facility as per normal procedure.
In relation to the allegations raised with the Applicant upon termination of his employment, the Applicant submits:[23]
· some of them were vague and non-descript and others spurred from complaints which occurred as far back as 2020;
· they were presented at the end of 2021 from as early as 2020 with no factual evidence;
· he was unaware of these allegations until his dismissal, none of the allegations were discussed during the Applicant’s performance review and at no point had the Applicant been presented with any customer or employee complaint from March 2020 or throughout his tenure in 2021; and
· because he was unaware of these allegations, there was no appropriate period for him to mitigate them.
Evidence
The Respondent has put forward reasons for the dismissal that it submits relate to the Applicant’s performance and conduct.
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[24] “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.”[25]
The parties are in dispute about whether the conduct alleged by the Respondent occurred and whether there were issues concerning the Applicant’s performance.
Interactions with staff in 2019
Mr Seymour gave evidence that:[26]
· in or about mid-2019, he was contacted by Mr Roberts about issues with the Applicant and recalls those issues related to the manner in which the Applicant was interacting with other staff; and
· following this initial call from Mr Roberts, he spoke to Mr Roberts on several occasions and would brainstorm ideas Mr Roberts could use to manage the Applicant’s behaviour and how he communicated with others.
I accept Mr Seymour’s evidence that, in 2019, Mr Roberts raised issues about the Applicant’s manner with other staff. However, the evidence does not establish the specific nature of those issues or what Mr Roberts did in response, following his conversation with Mr Seymour. The evidence is merely Mr Seymour’s recollection of discussions with Mr Roberts about the Applicant in a general sense. Mr Roberts did not appear in the proceedings. As such, it cannot be discerned what actual conduct was alleged by Mr Roberts to have occurred that led to him contacting Mr Seymour in mid-2019, let alone whether the conduct did in fact occur, and Mr Seymour’s evidence was not specific in this regard.
Supervision of students and issues with staff between February and May 2020
Mr Seymour gave evidence that Mr Roberts raised issues with him regarding the Applicant’s supervision of students. In particular, Mr Seymour’s evidence was that:
· between about February and May 2020, Mr Roberts sent him a series of reports recording issues he was experiencing with the Applicant including failing to properly supervise work experience students providing clinical care to patients and difficulties with other staff at the Goulburn Practice.[27] Mr Seymour attached copies of these reports to his witness statement and:
oa document entitled ‘Monthly Managers Report’ dated 29 February 2020, which includes a section entitled ‘Section 4: Staffing’. Within that section, a question reads “Please list any issues that you are having with staff? This is confidential but will help us identify where you need help in resolving this?” In response, the report states:
“Michael Adams:
Inappropriate behaviour, unprofessional attitude and behaviour, inappropriate use and supervision of students, inability to work with other teams appropriately, inappropriate servicing of clients.
As a result Michael does not embody a number of the 7 core values i.e. We are a team not an individual and Michael does not fulfil the brand promise with his treatment of clients.
Naomi has been provided with clear examples of this by numerous staff members other than myself and is working on addressing the issues at hand.”
odocuments entitled ‘Monthly Managers Report’ dated 30 March and 30 April 2020 also include a section entitled ‘Section 4: Staffing’ and includes the same wording in relation to the Applicant as is reflected in the Monthly Managers Report dated 29 February 2020; and
oa document entitled ‘Monthly Manager’s Report’ dated 1 June 2020 also includes a section entitled ‘Section 4: Staffing’ and includes the same wording in relation to the Applicant as is reflected in the Monthly Managers Reports dated 29 February, 30 March, and 30 April 2020 with a slight variation in that the words omit the reference to examples having been provided to Ms Desira (referred to as Naomi in the notes).
While the Monthly Managers Reports between February and June 2020 suggest that the Applicant has engaged in “inappropriate behaviour, unprofessional attitude and behaviour, inappropriate use and supervision of students, inability to work with other teams appropriately, inappropriate servicing of clients”, beyond these general descriptors, it cannot be discerned what specific conduct was alleged to have occurred as the meeting notes are not specific in this regard and the “clear examples” Ms Desira is referred to as having are not recorded in these reports.
Ms Desira, facility manager of the Respondent from mid-2020, also gave evidence that Mr Roberts had raised concerns with her in relation to the Applicant. In particular, Ms Desira’s evidence was that:[28]
· Mr Roberts was the facility manager prior to her appointment in the role and, during her transition, he would involve her in his decisions as facility manager;
· from early 2020, she would frequently meet with Mr Roberts to discuss various matters within the practice including staffing issues, which included the issues Mr Roberts was experiencing with the Applicant getting students to take clients without supervision and still having the clients charged a full practitioner rate;
· she recalled an incident in early March 2020 where the Applicant used a new student trainee to do a session on a client who was privately paying $85 per hour; and
· as a part of her transition, Mr Roberts would ask her to discuss issues directly with the Applicant.
Ms Desira’s evidence was that:[29]
· in March 2020, she spoke to the Applicant about negative feedback Mr Roberts had been receiving from other team members in relation to his conduct, including the Applicant’s refusal to hand over clients to other disciplines and acting “rude and aggressive” with the team member if he did hand clients over to them;
· during this discussion, she told the Applicant words to the following effect: “We are a multi-disciplinary team, if it is in the best interest of the client outcomes and the business model for you to transfer clients then that’s what you need to do”, and that she told the Applicant he cannot leave clients unsupervised and, if he did, he could get into trouble and put the business at serious risk; and
· whenever she would raise an issue with the Applicant, instead of focusing on the discussion, he wanted to know who complained so he could approach the person and she would tell him that team members have a right to raise concerns and the proper way to do that is with management.
A copy of Ms Desira’s notes from that meeting were attached to Mr Seymour’s witness statement, are dated 3 March 2020 and read (among other matters relating to printing flyers and the marketing budget):
“Michael Adams
*New students day one
· Privately paying client $85 per session for a student on their first day
· Who saw Roger + Sally Crokes? Student physio
· Complaint from other disciplines + colleagues
· Workcover clients w little to no supervision in the gym instead of referring over to EP which from $$ standpoint is more than physio
· concern in building relationships w stakeholders … there is a lack of trust that he will provide appropriate service.
· inappropriate approach to other staff members & their dealing w clients that are handed over…”
Mr Seymour also gave evidence about his interactions with Ms Desira regarding the Applicant when she transitioned to the role of facility manager. In particular, Mr Seymour gave evidence that:[30]
· in about March 2020, he was contacted by Ms Desira about a performance management meeting Ms Desira and Mr Roberts had with the Applicant on 3 March 2020;
· he understood from his discussions with Ms Desira that the performance issues discussed during the meeting concerned the Applicant inappropriately using students in the Goulburn Practice, allowing Workcover patients to use the gym without adequate supervision and complaints from staff about the Applicant; and
· during the call with Ms Desira, he recalls Ms Desira stating words to the effect of “Tim and I have repeatedly told Michael that he has to supervise students at all times and that Workcover patients can’t be left in the gym themselves because it is a liability risk. We reiterated this again during our meeting”.
Mr Seymour gave evidence that he was particularly concerned that the Applicant was not properly supervising students who were providing clinical care to patients at the Goulburn Practice and that:
· the Respondent has a university development program where it takes students studying toward qualifications in allied health disciplines providing them with an opportunity to gain experience and practical training; and
· it is a requirement that these students cannot, under any circumstances, be left to take assessments or perform any clinical activities with patients without strict direct supervision by qualified staff.[31]
I accept that, as Ms Desira transitioned to the role of facility manager in early 2020, Mr Roberts would discuss with her concerns that he had about the Applicant, including concerns that the Applicant would get students to take clients without supervision and would still have the clients charge a full practitioner rate.
However, while Mr Roberts shared his concerns with Ms Desira and she raised them with the Applicant and kept Mr Seymour updated about her discussions, the evidence does not establish what specific conduct is alleged to have occurred and whether, based on the balance of probabilities, it did occur. I am not satisfied, based on the evidence before me, that Mr Roberts’ concerns were substantiated and there is no evidence that turns to the specifics of the conduct that Mr Roberts described to Ms Desira.
Amelia Vitek complaint – February 2020
Mr Seymour gave evidence that:[32]
· in about late February 2020, he was contacted by Ms Desira about a complaint that she had received from a staff member, Ms Amelia Vitek; and
· Ms Desira informed him that the Applicant was not sending patients to Ms Vitek, despite him having a long wait list, and that the Applicant approached Ms Vitek in an aggressive and threatening manner when he learnt that she had spoken with management about sharing his patients with other practices. A copy of an email from Mr Roberts to Ms Desira, dated 21 February 2020, was attached to Mr Seymour’s witness statement and reads:
“Hey Naoms,
Just met with Amelia this morning to chat about some clients. She mentioned that Michael bailed her up the other day and was following her up on Elizabeth Rice in a rather aggressive way. Amelia didn’t say the word “aggressive” but it is definitely how it came across to me when she was explaining it. She seemed a bit put off by it…”
I am satisfied that Mr Seymour was contacted by Ms Desira in late February 2020 to make him aware of a complaint that Ms Vitek had made to Mr Roberts in relation to the Applicant. Neither Ms Vitek nor Mr Roberts appeared to give evidence in the proceedings to give their account of conduct alleged and how it was described. The specific nature of the conduct alleged is unclear and the evidence does not support a finding, based on the balance of probabilities, that the behaviour that Mr Roberts described to Ms Desira as being “aggressive” occurred.
Student supervision in May 2020
Mr Seymour also gave evidence that:[33]
· in May 2020, he was contacted by Mr Roberts about the Applicant and Mr Roberts told him that, despite repeated warnings to the Applicant in February and March 2020 about strict supervision of students on placement, he had learnt that the Applicant had asked a student to perform a home visit to a NDIS approved patient without him being present and that the Applicant had charged the patient at full practitioner rates as if he had been present during the home visit;
· following his call with Mr Roberts, he decided to get Ms Sharlene Naidu from human resources involved and he asked Mr Roberts and Ms Naidu to again speak with the Applicant about the issue;
· he then called Mr Roberts to see how the meeting with the Applicant had gone and recalled that Mr Roberts told him that the Applicant’s response to his questions about the home visit by a student to a NDIS patient was “I was double booked, and I was confident that the student could take care of it on their own”;
· Mr Roberts asked him to get involved by talking to the Applicant about the issue directly and he arranged a meeting with the Applicant and drove to Goulburn to meet with him on 22 May 2020; and
· on 22 May 2020, he met with the Applicant in the presence of Mr Roberts. During that meeting, he told the Applicant that the non-supervision of students is grossly negligent, puts the clients at risk and can have serious regulatory consequences for the business. Mr Seymour recalled that he specifically said to the Applicant words to the effect of “You cannot have students in the gym or hydro pool on their own seeing clients. They should not be left alone in there for even 5 minutes”. Mr Seymour’s evidence was that he took the opportunity to discuss the Applicant’s behavioural issues and poor feedback he had been receiving from Mr Roberts about his interactions with other team members, particularly some female members of staff. Mr Seymour recalls he said words to the effect of “As a big body, you need to be mindful of your tone and how that is perceived by others. They feel you are aggressive and intimidating” and that, while generally being defensive about his behaviour, the Applicant said words to the effect of “I admit I need to see this from other people’s perspective”.
I accept Mr Seymour’s evidence that Mr Roberts had again raised concerns with him about deficiencies in the Applicant’s supervision of students in May 2020 and that Mr Seymour raised these concerns with the Applicant, as well as feedback he had received from Mr Roberts about behavioural issues and the Applicant’s interactions with other team members. While this evidence turns to the process that Mr Seymour undertook to raise the concerns with the Applicant, it does not establish, on the balance of probabilities, that the concerns raised with Mr Seymour by Mr Roberts actually occurred.
Behaviour toward Emily Marchese – June 2020
Mr Seymour gave evidence that, on 11 June 2020, he received an email from Ms Desira advising him that Ms Emily Marchese from the referral network had received an abusive email from the Applicant.[34]
A copy of the email chain between the Applicant and Ms Marchese was attached to Mr Seymour’s witness statement. An email from Ms Marchese to the Applicant dated 25 May 2020 addresses Ms Marchese’s delay in getting an iCare approval for a client, Carol. An email in response from the Applicant to Ms Marchese dated 1 June 2020 thanks her for the approval and asks if she can have the dates of the approval backdated taking into account the client’s circumstances. A response from Ms Marchese dated 4 June 2020 explains that the request has been declined and states that “Going forward it will be important to ensure that services are only provided during the period of approval. Unfortunately, even though services have been approved in the past there is no guarantee that they will continue to be approved into the future. Please feel free to call me if you wish to discuss further.” An email from the Applicant to Ms Marchese in response dated 9 June 2020 reads:
“Hi Emily,
Unfortunately this is not an acceptable outcome. I applied for approval for ongoing Physiotherapy over 2 weeks before the last approved plan was due to expire. Carol and I waited over 8 weeks (40+ business days) before a decision was made on this request, despite repeated followup emails and face to face conversations between myself and you. Waiting in excess of 40 business days for a request approval is an absurd and unjustifiable length of time, particularly as you were well aware that Dr Crawford supported this request and you were in receipt of his report which confirmed this.
I have never encountered a case manager who requires this period of time to approve a Physiotherapy treatment request plan and then in addition to this, refuses to backdate the long overdue approval to accommodate appointments which were continued to be delivered. In comparison, Carol’s previous case manager would have the request approved within three working days or less, every time without fail.
If this is going to be the standard period of time which you will require to approve treatment requests, then I will be submitting my request for an additional Physiotherapy treatment plan within the next week as I will need to factor in your 8 week+ processing time which is unheard of in the industry and unique to yourself.
In all seriousness, please provide me with the contact details of your direct superior and who you are submitting these requests to as I am going to be submitting a formal complaint in regards to your completely unprofessional conduct and in addition to this, in future going around you to directly submit my requests to whoever is actually making these decisions i.e. removing you from this process to prevent an 8 week+ processing time becoming a regular occurrence.
Please do not reply to this email with anything other than:
1) Contact details of your superior or the correct person for me to submit a formal complaint of unprofessional conduct.
2) Contact details of the people responsible for approving/not approving these requests.
Thank you.”
The email chain suggests that Ms Desira provided a copy of the email chain to Mr Seymour on 11 June 2020 and sought advice on how he would like her to approach the Applicant, sending a follow up email to Mr Seymour on 18 June 2020. Mr Seymour’s response on 18 June 2020 seeks Ms Desira’s thoughts on how to manage the Applicant and what the options are, taking into account both sides of the argument and noting that, while he understands the Applicant’s frustration and wanting to get an outcome, his mode of language was too harsh.
The email chain includes Ms Desira’s response to Mr Seymour’s email dated 18 June 2020 in which she states:
“I have spoken with Michael again about his communication both in the context of myself and external stakeholders and he has agreed that he will work on this in accordance with your discussions with him and subsequently mine.
I understand Michael’s frustration on the approval process also however, his communication with Emily did not need to be what it was and I have now had a productive discussion with him about it and we have agreed we will continue to monitor this.
At this stage, no further action necessary. I will keep you informed.”
The email chain includes Mr Seymour’s response to Ms Desira’s email dated 18 June 2020 in which he states:
“I think this is the perfect outcome.
Well done. Obviously we need to work with Michael on improving this, and pointing out when areas need to be improved”,
to which Ms Desira responds “Will do.”
Ms Desira gave evidence that, on or around 11 June 2020:[35]
· she had a telephone discussion with Ms Marchese, who had called to complain about an email she had received from the Applicant. Ms Desira’s evidence was that she asked Ms Marchese to forward her the correspondence so she could speak to the Applicant about it;
· she spoke with the Applicant and told him words to the following effect:
“I have received email correspondence between you and our referrer Emily. How you have spoken with her is inappropriate. You cannot speak to our stakeholders like that. These referrers can easily go elsewhere and considering Goulburn is a small town, them speaking bad about the company will hold a lot of weight”;
· in response the Applicant defended his actions but, from her recollection, agreed to work on his communications with these stakeholders.
While the Applicant may have been frustrated by the delay in approval and its impact upon the client, I consider that the email from the Applicant to Ms Marchese on 9 June 2020 was inappropriate in its tone and content. I am satisfied, based on the evidence before me, that Ms Desira spoke to the Applicant about this and that the Applicant agreed to work on his communication.
Further issues regarding Ms Marchese and interactions with Ms Desira
Ms Desira gave evidence that:[36]
· approximately two weeks after her meeting with the Applicant regarding Ms Marchese, she received a call from Ms Marchese who had a report prepared for a client but, due to her recent interaction with the Applicant, told Ms Desira that she did not want to send it to the Applicant and asked Ms Desira to send the report to the Applicant as she did not want to speak to him directly;
· on or about 10 August 2020 she scheduled another meeting with the Applicant to discuss his behaviour and a complaint received by another team member;
· when the Applicant entered that meeting, she observed him to be “visibly agitated” and he immediately said words to the effect of “why did you speak to Elaine about this? Why didn’t you come directly to me? You’ve been lying about your conversation with Elaine because there are no notes in the client file”;
· in response, Ms Desira said “I am your manager and I determine how to handle complaints. My notes will be uploaded when I see fit”;
· the Applicant then slammed his fist on the desk and shouted “you are a liar trying to hide things rather than speaking to me directly”;
· she responded, “I am your manager and not the other way around”, to which the Applicant did not respond and instead laughed in her face;
· on 13 August 2020, she spoke with Mr Liddell, the Respondent’s general manager and business consultant at that time, and told him she was concerned about the Applicant’s aggressive behaviour toward her and other stakeholders, saying words to the effect of “I actually don’t want to meet with him unless someone else is in the room. In fact I don’t want to work with him at all”. She expressed to Mr Liddell her view that the Applicant should be fired and Mr Liddell told her he would raise her concerns with HR and management; and
· some time later, she was told by Mr Liddell that he had arranged a meeting with the Applicant to discuss everything and put a plan in place to monitor his conduct.
Mr Seymour’s evidence was that:[37]
· in August 2020, he was contacted by Ms Desira who advised that Ms Marchese had prepared a report for an existing patient but did not want to send it to the Applicant because of the incident where he had been disrespectful to her;
· Ms Desira told him that she had scheduled a meeting with the Applicant on 10 August 2020 to discuss with the Applicant how his conduct negatively affects the Respondent’s relationship with referrers; and
· on or about 10 August 2020, Ms Desira contacted him following her meeting with the Applicant and said words to the effect of “I told Michael that he cannot talk to our referring partners like that and that I had reported his conduct to Elaine” and told him that, in response, the Applicant slammed his fist on the desk and accused Ms Desira of having “gone behind his back” before “storming out of the room”.
A copy of Ms Desira’s notes of the meeting with the Applicant dated 10 August 2020 were attached to Mr Seymour’s witness statement and, while they make reference to a number of matters and suggest that Ms Desira and the Applicant are in disagreement about certain matters, including delays in administration, the notes do not specifically reference the way he spoke to referring partners, that this issue had been referred to ‘Elaine’ or that the Applicant slammed his fist on the desk or stormed out of the room. In particular, the notes, dated 10 August 2020, suggest that:
· the Applicant was unhappy with billing practices and Ms Desira explained that “this was Elaine’s way forward” and the Applicant seemed dissatisfied with this response;
· Ms Desira sought to clarify that she was the Applicant’s “manager not the other way around” and recorded that the Applicant laughed in her face;
· the Applicant raised concerns about administrative practices;
· the Applicant questioned Ms Desira’s integrity and stated that he felt she was dishonest with him, to which Ms Desira responded she had “no reason to be dishonest”, she didn’t “care if ego was hurt” and was “doing best for client and business”;
· Ms Desira told the Applicant that her administration was behind but she had notes and would get to them;
· Ms Desira told the Applicant she gets “a million interruptions a day so lay off”; and
· the Applicant thanked Ms Desira for having a “clarification chat with him”.
I am satisfied, based on the evidence before me, that, on 10 August 2020, Ms Desira and the Applicant had a heated exchange in which he challenged her administrative practices, honesty and integrity. I am also satisfied that this caused Ms Desira to escalate her concerns regarding the Applicant to Mr Seymour.
Escalation to Marc Liddell
Mr Seymour’s evidence was that:[38]
· following his conversation with Ms Desira on 10 August 2020, he contacted the general manager, Mr Liddell, and sought his assistance regarding the Applicant and his concerns about the regularity of complaints in relation to the Applicant, that the Applicant was not willing to listen to the directives of his facility manager, Ms Desira, and had become aggressive with her; and
· he understands Mr Liddell and Ms Desira then had a telephone conversation on 13 August 2020 and, following this discussion, Mr Liddell and Mr Seymour decided they would need to provide the Applicant with a written warning about his conduct and asked Ms Naidu from human resources to prepare the letter.
A record of the conversation between Ms Desira and Mr Liddell, prepared by Ms Desira, was attached to Mr Seymour’s statement, is dated 13 August 2020 and says:
“* raised issues I am having w MA. Said his behaviour has been quite erratic for @ least 6 months
- getting aggressive in situations that don’t warrant it.
- has been raised by practitioners, clients, stakeholders + had been experienced by me.
- Not using students appropriately even though he has been spoken to on a number of occasions by MS, TR, ET + myself.
- Communication is poor – has been raised by MS.
-ND has no desire to converse or have any one-to-one discussions w Michael anymore due to disrespect shown.
- Worried about culture of business unit in Goulburn – other practitioners don’t want to refer to him anymore etc.
- Marc to speak w Sharlene & speak to ND tomorrow.”
It is apparent to me that Ms Desira’s escalation of her concerns about the discussion she had with the Applicant on 10 August 2020 to Mr Seymour had the effect of Mr Seymour escalating his concerns to Mr Liddell. Ms Desira then relayed her concerns directly to Mr Liddell on 13 August 2020, raising the historical issues, her concern about the Applicant’s impact on culture and her desire not to have one on one discussions with the Applicant because he had shown her disrespect. As a result of this escalation and the feedback that had been provided to Mr Seymour by employees in the business over a period of time, Mr Seymour and Mr Liddell decided that the Applicant should be issued a formal warning.
Meeting between the Applicant and Mr Liddell and the warning letter
Mr Seymour’s evidence was that, on 7 September 2020, Mr Liddell met with the Applicant and that Mr Seymour understands, based on discussions he had with Mr Liddell at the time, that during the meeting Mr Liddell handed the Applicant a copy of the ‘First and Final warning letter’ that Mr Seymour had discussed with Mr Liddell in late August 2020.[39]
A copy of the ‘First and Final warning letter’ was attached to Mr Seymour’s statement, is undated and states:
“Dear Michael,
First and Final warning letter
This is your first and final warning in relation to your unprofessional conduct in the office. This warning follows the counselling/disciplinary interview held on 14/8/2002 (sic) in relation to this issue.
Your performance will be monitored and continued unacceptable behaviour will result in further disciplinary action which may ultimately result in the termination of your employment.
To reiterate, our expectation is that you behave in a professional manner with your supervisors and coworkers and adhere to Optimums Code of Conduct…”
Mr Seymour’s evidence was that, after the meeting, he spoke with Mr Liddell who confirmed that during the meeting he handed the letter to the Applicant, told him he needed to respect Ms Desira’s authority, not act aggressively toward her and not slam desks and that the Applicant agreed to fortnightly/monthly check-ups with Mr Liddell.[40]
Mr Seymour attached to his witness statement a copy of Mr Liddell’s notes of this meeting with the Applicant which are dated 7 September 2020. The notes state:
“* Marc outlined his ‘ground’ rules
-different agendas don’t work
-differing point of view is okay
-not personal –
* Naomi is responsible for management of facility – hierarchy
* Got to accept umpire’s decision
* From this moment forward direction is from facility manager-if facility manager is contradictory – Naomi to clarify
* No raising voices
* All people 38 hours moving forward-code of conduct
1. Not personal
2. Document or verbal
-Regular catch up – fortnightly/monthly
- how billings going
- anything troubling you
Clinical head ground rules
1. Practical
2. Any changes clinic/HR – go through facility manager.”
The Applicant denies having received a final written warning in September 2020.
The document entitled ‘First and Final warning letter’ is undated and states that it “follows the counselling/disciplinary interview held on 14/8/2002 in relation to this issue”, whereas the meeting between Mr Liddell and the Applicant took place on 7 September 2020. Mr Liddell did not appear to give evidence in the proceedings.
I have considered the evidence and, while I am satisfied that Mr Liddell had a conversation with the Applicant about his relationship with Ms Desira and method of communication on 7 September 2020, the notes do not indicate that Mr Liddell gave the Applicant the documented warning and I am not satisfied that he did so. I also note that the words “Document or verbal” appear in the meeting notes, which likely suggest Mr Liddell was weighing his options regarding his approach with the Applicant. I consider it more likely that Mr Liddell counselled the Applicant verbally and committed to regular check ins with the Applicant. I also observe that, had the Applicant been given the ‘First and Final warning letter’, it is unclear what this is in relation to as it does not step out any specific concerns relating to conduct or performance.
Potential change in location – October 2020
Mr Seymour’s evidence was that:[41]
· in or around late October 2020, he arranged a Zoom meeting with the Applicant to explore whether the Applicant would be open to a new role at a different location in the hope that this would remove the Applicant from an environment where there had been issues with staff, clients, referral partners and performance and that this would be a positive outcome for the Applicant and the Goulburn Practice;
· he briefly discussed some options with the Applicant however thought it would be better to meet in person and arranged to go to Goulburn and take the Applicant out for lunch in November 2020;
· on 18 November 2020, he had lunch with the Applicant and discussed a range of matters including exploring options for him to go to another location, to which the Applicant seemed generally agreeable; and
· on 4 December 2020, he had a Zoom call with the Applicant about potential relocation to a newly established practice in Nowra, however the Applicant did not take up the position and said he wanted to know the outcome of his pay review on 31 January 2021 before making a decision and suggested a preference for a more permanent move to Sydney.
I accept Mr Seymour’s evidence that a change in location was explored with the Applicant, however the Applicant ultimately decided not to take up this option. I do not consider this relevant to my assessment as to whether there was a valid reason for the dismissal of the Applicant.
Katie Saariko complaint – November 2020
Mr Seymour gave evidence that:[42]
· on 19 November 2020, Ms Desira told him that the Goulburn Practice had received a complaint from a client, Ms Katie Saariko, about the Applicant with Ms Desira saying words to the effect of:
“It was her first physio session and after it had finished, the client walked out to reception and was distraught saying that she was introduced to Michael and was asked if she would mind if a student was involved in the session. The client said she agreed but then shortly thereafter, Michael left the room and disappeared for the entire session leaving the student to take the session. I apologized to the client and said we would waive the fee but she said she said she is never coming back to the Goulburn Practice”;
· he told Ms Desira that she needed to raise this with the Applicant and that it was simply unacceptable that the Applicant was still not properly supervising students.
Ms Desira gave evidence that:[43]
· on 19 November 2020, a client who had come in for her first session complained to reception that, during the entire session, she had been left with a student who was clearly inexperienced and made her feel extremely uncomfortable;
· as a result of the complaint, she apologised to the client and agreed to waive her fee; and
· shortly after, she spoke with the Applicant regarding this incident, and he denied any wrongdoing stating “I left the student to briefly to do some clinical notes. The student knew what he was doing”. She told the Applicant that the client had several complaints about the session and could contact the Australian Health Practitioner Regulation Agency and that he “did not seem to care”.
The Applicant denies that he attended any meetings regarding alleged failure to supervise students and says he was not aware of any complaints made by fellow staff or patients.[44]
The evidence of both Mr Seymour and Ms Desira is that, at various junctures, they discussed the issue of student supervision. I have earlier referred to Mr Seymour’s evidence that, on 22 May 2020, he met with the Applicant in the presence of Mr Roberts and during that meeting told the Applicant that the non-supervision of students is grossly negligent, puts the clients at risk and can have serious regulatory consequences for the business. I consider it is likely that both Mr Seymour and Ms Desira raised issues with the Applicant regarding student supervision. I also accept the evidence of Ms Desira that she received a complaint from Ms Saariko about the Applicant on 19 November 2020 and that she spoke to the Applicant.
Performance prior to January 2021
The Applicant filed a copy of a document recording the outcome of his ‘Annual Performance Review’ dated 27 January 2021. This document states that the review was conducted by Ms Desira, Mr Seymour and Mr Doyle and appears to be signed by Ms Desira and Mr Doyle. The document includes both an employee rating and manager rating and comments made by both the Applicant and management. The Applicant’s self-ratings are generally higher than the manager ratings. By way of summary, the document records the following outcomes (with a rating of 1 being poor and 10 being excellent):
· In relation to ‘clinical job knowledge’, the Applicant received a manager rating of 6 with generally positive comments and areas identified for further development.
· In relation to ‘problem solving & adaptability’ and ‘quality of work and accountability’, the Applicant received a manger rating of 7.
· In relation to ‘work, health and safety’ the Applicant received a manager rating of 9.
· In relation to ‘client focus’, which is described as “understands customers’ needs and provides prompt, professional service”, the Applicant received a manager rating of 7 with some areas identified for further development and a requirement that the Applicant focus on client centred care, getting to client goals and setting them up with the best clinician for their care.
· In relation to ‘Teamwork and Communication’, the Applicant received a manger rating of 6. Management comments read as follows:
“Has been professional in his interactions with myself as HCD. Defensive mindset in response to appropriate critical feedback from Elaine.
Improving in managing communication skills, impulsive reactions to stress full (sic) situations. Well done on making change! Keep working on these skills. Proactive in commencing CPD external leadership course.
Needs to continue to show consistent improvement in this communication and working with people with different personalities, for consideration in Team Leader leadership opportunities…”
“Michael has committed himself to learning to be able to integrate himself more effectively with all members of the team. He has improved his level of communication with me and I believe is working on doing so with other practitioners. I have received some good feedback from other professional staff and some that has been indifferent.
I am not aware of any relationships built with external stakeholders outside of Coordinare so am unable to make comment on the effectiveness or otherwise of this.”
· In relation to ‘Teamwork and Communication’, the Applicant’s comments read:
“Significant growth in communication skills i.e. proof reading emails before sending and demonstrating emotional intelligence by not reacting in an unhelpful manner to potentially combative interactions.
Colleagues: I have intentionally built professional and constructive relationships with all members of staff while being mindful of my audience, body language and softening my approach.
Kendalle: Daily conversations re bookings and schedule and clients with nil hand gestures while speaking with a soft tone.
I have also being (sic) building this relationship by speaking with her re her weekend, dogs, new house, cars (Mini & Evo) and casual joking.
Sabine: Daily conversations re bookings and schedule and clients while also building rapport discussing her husband and his new role, how he is coping post Chronic Pain Program and her move to Nowra.
Naomi: Consistent conversations re clients, Chronic Pain Program, student placement program, career goals and timetabling. I have also invested significant time and effort into creating useful content for each catch up meeting and typing this all out into agendas before every meeting.
I did this in my own time outside of work hours (without claiming TIL) completely voluntarily as I see the value in investing in a productive professional relationship with Naomi.
I have also been mindful of previous perceptions of being demanding, so the tone and content of my correspondence has changed significantly to accommodate this perception.
I have also invested in this relationship by demonstrating complete open transparency into what my goals are as well as my various ongoing self-improvement activities while acknowledging my own areas for improvement.
Saajida: Consistent informal verbal case conferences re shared clients (B.H, P.C, L.R etc.).
Ashlea: Discussions re OT Ax and PT Ax and how they cross over i.e. BOT2 and how to administer.
Hee-Lian: Daily Conversations.
James: Daily Conversations.
Amelia: Daily Conversations.
Tanya: Consistent conversations re invoices / billings / WC approvals.
Key Stakeholders: All AHRRs, WC reports, EPC letters, Functional Assessments & NDIS reports completed within deadlines.
Consistent and effective communication with Faculty members from University of Sydney & University of Canberra in managing and coordinating the student program.
Consistent and effective communication with Annette (Project Manager Coordinaire) in managing and coordinating Chronic Pain Programs including being Annette’s first choice in offering an additional program contract.
Consistent and effective communication with Masonic Basin View MGMT.
Clients: Treatment plans, rationale and plan of management clearly communicated to all clients. NDIS reports completed before schedule and sent to clients before review date. Requested home programs sent to clients.”
The document also includes fields for the inclusion of comments about the Applicant’s overall performance. This includes the following question
“The challenges you have faced: What you would have done differently? What have you done least well, or with least satisfaction? How could this be overcome?”
The Applicant included the following comments in response to this question:
“Working constructively with very different personality types. I have invested significant time and energy in my own personal development in developing emotional intelligence, practical empathy, conflict resolution skills and people management skills. This has dramatically improved my capacity in working constructively with a variety of different personality types.”
Management comments in relation to this question are as follows:
“Michael and I have worked and discussed at length “knowing your audience” and adapting communication accordingly. Michael has shown promising change in this area, he will need to keep focus on this practice in times of high level stress and conflict as he strives to enter a leadership role.”
The document recording the outcome of the Applicant’s ‘Annual Performance Review’ suggests that, prior to 27 January 2021, the Applicant had received feedback regarding the way he communicated with team members and has considered that in the commitments he makes in relation to that, such as being conscious of his tone, body language, the way he reacts to situations and perceptions about him being demanding. The management comments suggest that the Applicant has shown improvement and needs to continue to show consistent improvement in his communication and working with people with different personalities, including in leadership.
Complaints in 2021
Ms Desira gave evidence that:[45]
· on or about 22 April 2021, Ms Tanya Waters, an administrative officer of the Respondent, contacted her and told her that a client of the Applicant had called and said he will not be coming back to the Respondent because he has found better services elsewhere. Ms Waters told her that the client said he did not come to the Respondent to be simply given home exercises to do. When she spoke to the Applicant about this incident, he said that the client was probably making excuses because “he did not want to keep paying” and that she was disappointed to hear this response because, rather than looking at what could have been done better, he decided to just blame the client;
· from approximately May 2021 until the end of 2021, while she was on carer’s leave, Ms Waters was the acting facility manager and Ms Desira would return to the clinic occasionally to deal with matters including complaints received concerning the Applicant; and
· on or around 23 July 2021, a meeting was scheduled between her, the Applicant, Mr Seymour and Ms Naidu to discuss ongoing issues with the Applicant’s employment. Ms Desira’s evidence was that she was aware of recent complaints made while she was on leave including a client who had decided to leave because the Applicant refused to give him dry-needling and the Applicant’s failure to attend a scheduled aged care visit in Basin View NSW without letting anyone know. During this meeting, where some participants in the meeting appeared via Zoom, the Applicant was warned that his repeated inappropriate use of students placed the Respondent at a serious risk from a professional standpoint, to which the Applicant responded “the students are supervised. I know what I am doing”.
When the Respondent’s evidence is considered collectively, a pattern emerges and it suggests that multiple clients made complaints about the Applicant, particularly about the level of supervision in relation to students performing therapies. However, the evidence of what is alleged to have occurred in the physiotherapy sessions is not first hand from those who participated in them and, other than in the case of Ms Desira’s account of the Katie Saariko complaint, I only have before me a more general description of the conduct alleged, which the Applicant denies. I do not have before me any clear evidence regarding how the complaints were looked into and, if the Respondent had substantiated those complaints, why they had done so.
It is understandable that the Respondent may, for commercial reasons, not wish to have its clients or former clients appear as witnesses in these proceedings or provide further particulars and evidence of the complaints. However, I need to be satisfied, based on the balance of probabilities, that the conduct alleged to have occurred by the Respondent did in fact occur in order to be satisfied that there was a valid reason for the dismissal. For there to be a valid reason related to the Applicant’s conduct, I must find that the conduct occurred and justified termination.[46] “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.”[47] While I am satisfied that client complaints were made in relation to the Applicant, including in relation to his level of student supervision, I am not satisfied, based on the balance of probabilities, that the complaints can be substantiated or that the conduct alleged occurred.
Pay issue – April 2021
Ms Desira gave evidence that in early April 2021, the Applicant emailed her and asked to meet to discuss his pay and that:[48]
· she met with the Applicant on or about 8 April 2021, during which she said to him words to the effect of “the business will not be doing pay reviews solely based on financial performance anymore. We need to consider all aspects of employment”; and
· as soon as she told the Applicant this, he became visibly aggressive and said words to the effect of “I am the highest billers in the company, I am due for a pay rise! I haven’t had one in 2 years”.
I accept the evidence of Ms Desira that, in early April 2021, the Applicant wanted to discuss his pay and that he was dissatisfied with the response. Based on the Applicant’s previous history of communication with Ms Desira and Ms Marchese, I accept that when Ms Desira’s response was not to his satisfaction, he likely responded in a way that could reasonably be perceived as aggressive.
Delivery of illegal substances – June 2021
Mr Timothy Gale, director of the respondent, gave evidence that:[49]
· in or about June 2021, although he cannot remember the exact date, he was in the Goulburn clinic at the front desk with a staff member and, whilst at reception, a courier delivered a package;
· he saw that the package was addressed to the Applicant, took the package to place it in the cupboards at the back of reception and noticed there was a large international customs stamp on the front stating it had come from Germany and contained ‘supplements’;
· he noticed there was a website on the front of the box which he decided to look up on Google and, while he cannot remember the name of the website, recalled that it referred to ‘male health and performance supplements’ and specialised in ‘testosterone supplements and boosters’;
· while he did not open the package, he believed it contained steroids because the Applicant is large, well built and into body building;
· he spoke with Mr Seymour and Ms Desira in relation to this but is unsure whether they spoke to the Applicant thereafter; and
· if illegal substances were being delivered to the clinic it would give rise to risk of loss of practicing certificate and serious disciplinary sanctions by the Australian Physiotherapy Association.
While Mr Gale’s evidence suggests he had suspicions about the contents of the package, he did not know what was in it. There is no evidence before me regarding an investigation in relation to these suspicions and its outcomes and no other evidence that turns to the contents of the package. The evidence before me does not establish, on the balance of probabilities, that the Applicant had illegal substances delivered to his workplace.
Apprehended violence order – October 2021
Mr Seymour gave evidence that, in October 2021, he was contacted by Ms Naidu who told him that the Applicant had been served with an AVO by his ex-fiancée and that, as a result, the Applicant had to change residences. Mr Seymour understood that Ms Naidu met with the Applicant to discuss the consequences from a professional standpoint and the Applicant took leave for approximately two weeks following discussions.[50]
The Applicant denied that he had been served with an AVO and the evidence before me does not establish, on the balance of probabilities, that he did. However, in any case, I do not consider this to be a relevant consideration in the context of this matter.
Events leading up to the dismissal
The Applicant gave evidence about the events leading up to his dismissal on 15 November 2021. By way of summary, the Applicant’s evidence was that:[51]
· he had been experiencing bullying and harassment from Mr Seymour since 2018;
· in October 2021, he filed the Bullying Application with the Commission and a conciliation conference was to be held to mediate his grievances on 23 November 2021;
· on 9 November 2021, he was involved in an altercation with Mr Seymour who approached him after hours in the car park to discuss the Bullying Application. The Applicant described Mr Seymour as being “visibly irate” and described his behaviour as “aggressive”. The Applicant says he expressed that he did not want to speak to Mr Seymour in this state;
· he then submitted a formal incident report to the Respondent’s HR team;
· on 15 November 2021, he presented to work as normal and, during his lunch break, the Respondent’s general manager, Mr Brad Sculley, came into his office and requested to have a casual chat. The Applicant says that he received a text message from Mr Sculley clarifying that the meeting was for “performance management”;
· during the performance management meeting, the Applicant’s request for a support person was rejected and the meeting was recorded without his consent;
· when he questioned what kind of disciplinary meeting it was, Mr Sculley kept repeating it was “performance management only”;
· the Applicant was then presented with a termination letter and directed to additional information in an envelope;
· inside the envelope was a termination letter with multiple allegations made against him;
· he had never been presented with any information or complaints prior to this and the Respondent did not give him any more evidence in relation to these claims;
· he had undergone an annual performance review in January 2021 and received above average feedback and positive remarks and no performance management or additional reviews had been required throughout 2021; and
In the context of administrative decision-making, the rules of natural justice are flexible and require fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise.[95] Ordinarily, procedural fairness requires that an allegation be put to a person and they be given an opportunity to answer it before a decision is made.[96]
I have earlier found that the decision to dismiss the Applicant was made before that decision was communicated to the Applicant in the termination meeting on 15 November 2021. It flows from this that the Applicant was not given an opportunity to respond to the allegations that had been made before the decision to dismiss him was made.
I consider that this is relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable, with the deficiencies in procedural fairness weighing in favour of a finding that the dismissal was unfair.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in s.387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[97]
Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh because, while there was a valid reason for the dismissal, the Applicant was not given the opportunity to respond to the allegations before the decision to dismiss him was made and was not given any warning that put him on notice that his employment was at risk unless the identified issues were addressed and, therefore, the Applicant was denied procedural fairness.
Conclusion
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.
Remedy
Being satisfied that the Applicant:
· made an application for an order granting a remedy under s.394;
· was a person protected from unfair dismissal; and
· was unfairly dismissed within the meaning of s.385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
Under s.390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
The Applicant submitted that reinstatement is not appropriate because he believes that, if he were to return to the Respondent, he would be victimised and makes specific reference to hostility displayed by Mr Seymour prior to and after his dismissal.[98]
I have earlier found that there was a valid reason for the dismissal related to the Applicant’s conduct, that conduct relating to the way in which he engaged with others, and accept that the relationship between the Applicant and his managers has irretrievably broken down.
In circumstances where the Applicant does not wish to be reinstated, “the Applicant’s disposition is a sure guide to the Commission as to whether or not it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant’s desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace.”[99]
The Applicant has also found alternative employment since the dismissal and did not seek an order for reinstatement. As stated by a Full Bench, “[i]n assessing whether reinstatement is an appropriate remedy, it is obviously relevant as to whether the dismissed employee has obtained alternative employment. Where that new employment is satisfactory to the employee, it will be no remedy at all to reinstate the employee to the pre-dismissal employment to which the employee, for well-founded reasons, has no desire to return.”[100]
The Respondent submits that an order for reinstatement is plainly inappropriate.[101]
Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”.[102]
Submissions
The Applicant submitted that payment of compensation is appropriate because he has suffered economic loss between his dismissal and seeking alternative employment, has incurred legal costs, suffered reputational damage and has had to relocate.[103]
The Respondent submitted that payment of compensation is not appropriate because:[104]
· the Applicant’s misconduct during his employment with the Respondent was sufficiently serious to warrant summary dismissal and the Respondent sets out a range of reasons for the dismissal in this regard;
· to the extent that any aspect of the Applicant’s dismissal was unfair, unjust or unreasonable (which the Respondent has denied), then the provision of four weeks’ pay in lieu of notice was plainly sufficient, and no further compensation should be awarded;
· even on the Applicant’s best case, it is clear that the proper measure of compensation is relatively small, as since his dismissal he has obtained new employment at another practice on 24 January 2022 and once the four weeks of payment in lieu is deducted, this leaves a period of less than six weeks in which the Applicant was without pay; and
· to the extent that the Commission is inclined to award any compensation at all, then given the gravity of the misconduct which led to his dismissal and the belligerent and aggressive manner in which he has conducted himself since in his dismissal, the Commission should make significant and meaningful reductions to this six week period pursuant to the requirements of s.392(3) of the Act.
Evidence
The Applicant gave evidence that:[105]
· since the dismissal he struggled to find work and was unemployed for a period of 10 weeks; and
· on 24 January 2022, he commenced work as a Rehabilitation Consultant on a full-time basis.
Findings
In all the circumstances, I consider that an order for payment of compensation is appropriate because, while the Applicant was paid four weeks’ pay in lieu of notice, he has suffered loss in the period between his dismissal and securing alternative employment on 24 January 2022.
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
There is no dispute and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.
Length of the Applicant’s service
The Applicant’s length of service was just over four years.
I consider that the Applicant’s length of service does not support reducing or increasing the amount of compensation ordered.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[106]
While I have found that the Applicant’s conduct constituted a valid reason for the dismissal, the Respondent should have put the Applicant on notice that his job was at risk as a result of the conduct and given him an opportunity to respond. While I am satisfied that such a process would likely have had the effect that the Applicant would have remained in his employment for longer, the evidence of the Respondent’s witnesses suggests that workplace relationships had been negatively impacted and it is likely that this would have been difficult to overcome. The Applicant had shown some improvement as a result of feedback in the past and I consider it likely that the Applicant may have adjusted his behaviour had he been alerted to the seriousness of the situation in terms of risk to his employment and this would have given rise to continued employment for a time. However, given the history of the Applicant’s conduct and pattern of behaviour, I consider it is unlikely that the level of improvement would have been sustained such that the Applicant would not have been terminated at some time by another means and following a proper show cause process. The Applicant may well have considered the poor state of his relationship with his managers, including Mr Seymour and Ms Desira, and his concerns regarding his pay and may well have left his employment voluntarily within a similar timeframe.
I find that the period for which the Applicant’s employment was likely to continue but for the dismissal was approximately eight weeks and that during this period he would have received $1,884.62 per week, or $15,076.96.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[107] What is reasonable depends on the circumstances of the case.[108]
The Applicant’s evidence was that, while he struggled to find work after the dismissal, he was ultimately able to do so and, on 24 January 2022, he commenced work as a Rehabilitation Consultant on a full-time basis.[109]
I am satisfied that the Applicant took reasonable steps to mitigate his loss.
Remuneration earned, income reasonably likely to be earned and other relevant matters (s.392(2)(e)-(g))
Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the FW Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f) of the FW Act. Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula.
I have earlier found that, had the Applicant not been dismissed, he would have been employed for a further eight weeks and would have earned is $15,076.96 during this period. I am satisfied, based on the Applicant’s evidence, that he did not work for 10 weeks from his dismissal and therefore did not earn any remuneration during this period. However, the Applicant was paid four weeks’ in lieu of notice, amounting to $7,538.48 and this amount should be deducted from the amount of $15,076.96. This leaves $7,538.48 gross in compensation
Compensation – how is the amount to be calculated?
As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[110] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[111].”[112]
The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the employment to be $15,076.96 on the basis of my finding that the Applicant would likely have remained in employment for a further period of eight weeks. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”.[113]
Step 2
Only monies earned since termination for the anticipated period of employment are to be deducted.[114] I have earlier noted that Applicant was paid 4 weeks in lieu of notice, amounting to $7,538.48 and this amount should be deducted from the amount of $15,076.96. This leaves $7,538.48 gross in compensation.
Step 3
I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.[115]
It is only necessary to consider the impact of contingencies on prospective losses, namely losses occurring after the date of the hearing. At the time of hearing, it is possible to make a finding as to whether the Applicant’s earning capacity has been affected since the date of dismissal to that time.[116]
Given the period I have anticipated that the Applicant would remained employed, being eight weeks, extended only to the date of hearing, there is no basis to make a deduction for contingencies.
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $7,538.48 and leave taxation for determination.
Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case”.[117]
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act.
Misconduct – s.392(3)
In determining the amount by which it is appropriate to reduce an order for compensation on account of misconduct, the Commission must consider, amongst other things, whether the Applicant engaged in misconduct and, if so, whether that misconduct contributed to the Respondent’s decision to dismiss the person.
I have earlier found that there was a valid reason for the dismissal related to the Applicant’s conduct, that conduct relating to the way in which he engaged with others in the workplace including inappropriate tone, manner and communication style, poor responses to dealing with conflict, an inability to maintain constructive working relationships with his managers and a failure to show sustained improvement in relation to his communication issues.
The Applicant’s conduct that resulted in his dismissal took the form of a pattern of behaviour rather than any isolated incidents of serious misconduct, such that the conduct may also be described as performance related. However, among that pattern of behaviour were some instances of misconduct, including the Applicant’s inappropriate email communication to Ms Marchese. I am satisfied that the misconduct of the Applicant contributed to the employer’s decision to dismiss him.
In all the circumstances, I am satisfied that the appropriate amount by which to reduce the amount of the order for compensation on account of misconduct is 15%.
Applying this reduction to the amount determined at step 4 above, the gross amount of compensation to be ordered is $6,407.71.
Compensation cap – s.392(5) and (6)
The amount of compensation I have calculated will not make it necessary to apply the cap provided for in s.392(5) of the FW Act.
Instalments – s.393
I do not consider that there is any reason for compensation to be made by way of instalments.
Shock, Distress – s.392(4)
The amount of compensation calculated must not and will not include a component for shock, distress, humiliation or other analogous hurt caused to the Applicant by the manner of his dismissal.
Conclusion
I am satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and that order for compensation equating $6,407.71 less taxation to be deducted as required by law, is appropriate having regard to all the circumstances of the case.
An order requiring the payment of this amount within 14 days will be issued with this decision.
COMMISSIONER
Appearances:
Mr M Crossley for the Applicant.
Mr E Thompson of Counsel for the Respondent, instructed by Mr S Shokouhi of One Law Group.
Hearing details:
2022.
Sydney (by Video using Microsoft Teams).
March 31 and April 1.
[1] Applicant, ‘Applicant’s Outline of arguments: merits’, filed 23 February 2022, 1b-1c.
[2] Ibid, 1a; Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 30 November 2021, 1.2.
[3] Applicant, ‘Form F2 – Unfair Dismissal Application’, filed 16 November 2021, 1.2; Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 30 November 2021, 1.3.
[4] Applicant, ‘Form F2 – Unfair Dismissal Application’, filed 16 November 2021, 1.3.
[5] Applicant, ‘Applicant’s Outline of arguments: merits’, filed 23 February 2022, 2a-2b; Respondent, ‘Respondent’s Outline of Submissions’, filed 11 March 2022, [3].
[6] Warrell v Fair Work Australia [2013] FCA 291.
[7] Ibid.
[8] Respondent, ‘Letter to Commission requesting permission to appear’, filed 29 March 2022, [6]-[15].
[9] Respondent, ‘Respondent’s Outline of Submissions’, filed 11 March 2022, [2].
[10] Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 30 November 2021, 1.7. See also, Respondent, ‘Witness Statement of Marc Seymour’, dated 9 March 2022, [4]-[5].
[11] Respondent, ‘Respondent’s Outline of Submissions’, filed 11 March 2022, [8].
[12] 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].
[13] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[14] Ibid.
[15] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[16] Applicant, ‘Applicant’s Outline of arguments: merits’, filed 23 February 2022, 6d[2], 6d[4].
[17] Ibid, 4c[1]-[2].
[18] Respondent, ‘Respondent’s Outline of Submissions’, filed 11 March 2022, [11].
[19] Ibid, [12].
[20] Ibid, [15]-[18].
[21] Applicant, ‘Applicant’s Outline of arguments: merits’, 23 February 2022, 4c[3], 4c[8], 4d[1], 4d[6], 5b[1]-[5], 5c[3].
[22] Ibid, 4c[8](2)-(6).
[23] Ibid, 4c[4]-[7], 5c[3]-[5].
[24] Edwards v Justice Giudice [1999] FCA 1836, [7].
[25] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[26] Respondent, ‘Witness Statement of Marc Seymour’, dated 9 March 2022, [11].
[27] Ibid, [12].
[28] Respondent, ‘Witness Statement of Naomi Desira’, dated 8 March 2022, [4]-[6].
[29] Ibid, [6]-[7].
[30] Respondent, ‘Witness Statement of Marc Seymour’, dated 9 March 2022, [14]-[15].
[31] Ibid, [15].
[32] Ibid, [13].
[33] Ibid, [16]-[19].
[34] Ibid, [20].
[35] Respondent, ‘Witness Statement of Naomi Desira’, dated 8 March 2022, [8].
[36] Ibid, [9]-[11].
[37] Respondent, ‘Witness Statement of Marc Seymour’, dated 9 March 2022, [21]-[22].
[38] Ibid, [22]-[23].
[39] Ibid, [24].
[40] Ibid, [25].
[41] Ibid, [26]-[29].
[42] Ibid, [28].
[43] Respondent, ‘Witness Statement of Naomi Desira’, dated 8 March 2022, [12].
[44] Applicant, ‘Outline of Submissions in Reply’, filed 18 March 2022, [3].
[45] Respondent, ‘Witness Statement of Naomi Desira’, dated 8 March 2022, [14]-[15].
[46] Edwards v Justice Giudice [1999] FCA 1836, [7].
[47] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[48] Respondent, ‘Witness Statement of Naomi Desira’, dated 8 March 2022, [13].
[49] Respondent, ‘Witness Statement of Timothy Gale’, dated 8 March 2022, [5]-[10].
[50] Respondent, ‘Witness Statement of Marc Seymour’, dated 9 March 2022, [39].
[51] Applicant, ‘Applicant’s Statement of evidence’, filed 23 February 2022, [4]-[10].
[52] Respondent, ‘Witness Statement of Marc Seymour’, dated 9 March 2022, [40]-[44].
[53] Ibid, [46]-[48].
[54] Respondent, ‘Witness Statement of Naomi Desira’, dated 8 March 2022, [16]-[17].
[55] Respondent, ‘Witness Statement of Marc Seymour’, dated 9 March 2022, [51].
[56] Ibid, [52].
[57] Applicant, ‘Witness Statement of Hee-Lian Foreman’, filed 23 February 2022, [2]-[8].
[58] Applicant, ‘Witness Statement of Tim Holmes’, filed 23 February 2022, [2]-[3].
[59] Applicant, ‘Witness Statement of Darrell Duncum’, filed 23 February 2022, [5]-[6].
[60] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[61] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[62] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[63] Ibid.
[64] Applicant, ‘Applicant’s Outline of arguments: merits’, filed 23 February 2022, 6d[3].
[65] Respondent, ‘Respondent’s Outline of Submissions’, filed 11 March 2022, [19]-[23].
[66] Respondent, ‘Witness Statement of Brad Sculley’, dated 8 March 2022, [5]-[13].
[67] Crozier v Palazzo Corporation Pty Ltd t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [39].
[68] Ibid, [75].
[69] RMIT v Asher (2010) 194 IR 1, 14-15.
[70] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[71] Applicant, ‘Applicant’s Outline of arguments: merits’, filed 23 February 2022, 6d[3].
[72] Respondent, ‘Respondent’s Outline of Submissions’, filed 11 March 2022, [19]-[23].
[73] Respondent, ‘Witness Statement of Brad Sculley’, dated 8 March 2022, [13].
[74] Wadey v YMCA Canberra [1996] IRCA 568.
[75] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [24].
[76] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[77] Applicant, ‘Outline of Submissions in Reply’, filed 18 March 2022, [11].
[78] Respondent, ‘Respondent’s Outline of Submissions’, filed 11 March 2022, [21].
[79] Applicant, ‘Applicant’s Statement of evidence’, filed 23 February 2022, [11].
[80] Respondent, ‘Witness Statement of Brad Sculley’, dated 8 March 2022, [10]-[11].
[81] Annetta v Ansett Australia Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000), [16].
[82] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
[83] Applicant, ‘Applicant’s Outline of arguments: merits’, filed 23 February 2022, 4d[6], 5c[3].
[84] Respondent, ‘Respondent’s Outline of Submissions’, filed 11 March 2022, [19]-[23].
[85] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].
[86] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
[87] Ibid.
[88] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].
[89] Respondent, ‘Respondent’s Outline of Submissions’, filed 11 March 2022, [24].
[90] Applicant, ‘Applicant’s Outline of arguments: merits’, filed 23 February 2022, 6d[4].
[91] Applicant, ‘Outline of Submissions in Reply’, filed 18 March 2022, [17].
[92] [2019] FWC 6585.
[93] Applicant, ‘Outline of Submissions in Reply’, filed 18 March 2022, [17].
[94] Respondent, ‘Witness Statement of Marc Seymour’, dated 9 March 2022, [4]-[7].
[95] Kioa v West [1985] HCA 81, [11] (per Gibbs CJ).
[96] Ibid, [22] (per Wilson J).
[97] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
[98] Applicant, ‘Applicant’s Outline of arguments: merits’, filed 23 February 2022, 7d.
[99] Taylor v C-Tech Laser Pty Ltd[2013] FWC 8732, [58].
[100] Seitz v Ironbay Pty Ltd t/a City Beach IGA [2018] FWCFB 1341, [24].
[101] Respondent, ‘Respondent’s Outline of Submissions’, filed 11 March 2022, [28].
[102] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[103] Applicant, ‘Applicant’s Outline of arguments: merits’, filed 23 February 2022, 7c.
[104] Respondent, ‘Respondent’s Outline of Submissions’, filed 11 March 2022, [36]-[37].
[105] Applicant, ‘Applicant’s Statement of evidence’, filed 23 February 2022, [15]-[16].
[106] He v Lewin [2004] FCAFC 161, [58].
[107] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[108] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[109] Applicant, ‘Applicant’s Statement of evidence’, filed 23 February 2022, para 16.
[110] (1998) 88 IR 21.
[111] [2013] FWCFB 431.
[112] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
[113] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[114] Ibid.
[115] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[116] McCulloch v Calvary Health Care Adelaide [2015] FWCFB, [21], citing Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000).
[117] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
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