Michael Longford v Aboriginal Elders & Community Care Services Inc T/A Aboriginal Elders Village
[2015] FWC 1480
•3 MARCH 2015
[2015] FWC 1480
The attached document replaces the document previously issued with the above code on 3 March 2015.
This document has been refiled because the code at the bottom of the document was incorrect. PR539020 has been replaced with PR561599.
Andrea Kerley
Relief Associate to Commissioner Wilson
Dated 15 September 2015
| [2015] FWC 1480 [Note: An appeal pursuant to s.604 (C2015/2226) was lodged against this decision - refer to Full Bench decision dated 29 May 2015 [[2015] FWCFB 3646] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Longford
v
Aboriginal Elders & Community Care Services Inc T/A Aboriginal Elders Village
(U2014/8955)
COMMISSIONER WILSON | MELBOURNE, 3 MARCH 2015 |
Application for relief from unfair dismissal.
[1] Michael Longford was employed by Aboriginal Elders and Community Care Services Inc T/A Aboriginal Elders Village (Aboriginal Elders Village) as a chef at its Davoren Park aged care facility from late 2010 until 15 August 2014, when he was dismissed after an allegation of serious misconduct.
[2] Mr Longford’s application for unfair dismissal remedy makes the claim that there was no valid reason for dismissal; that his termination was disproportionate to his conduct and that his termination was overall unfair.
[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before considering the merits of the application. Neither party put forward that any initial matter required determination. As a result, and it being consistent with the evidence, I make the following findings;
● Mr Longford’s application for an unfair dismissal remedy was filed in the Fair Work Commission on 27 August 2014, which is within a 21 day period from his dismissal took effect, meaning the application is within the period allowed by s.394(2) of the Act for the making of an application.
● The evidence also allows, and I find, that Mr Longford was at the time of his dismissal a “person protected from unfair dismissal” within the meaning of that expression in s.382.
● I also find that Aboriginal Elders Village was not a “small business employer” within the meaning of that expression in s.23, and that accordingly an issue of consistency with the Small Business Fair Dismissal Code does not arise.
● I also find, that Mr Longford’s dismissal was not a case of “genuine redundancy” as defined in s.389 of the Act.
[4] For the reasons set out below, I find that Mr Longford was not unfairly dismissed.
BACKGROUND
[5] Aboriginal Elders and Community Care Services Inc is a not-for-profit community-based association that provides care for elderly aboriginal people and younger aboriginal people with disabilities. Part of the service offered by the organisation is the operation of the Aboriginal Elders Village residential care facility at Davoren Park in Adelaide’s northern suburbs. 1
[6] The issues in dispute relate chiefly to an event that occurred on 7 July 2014, from which flowed two allegations of misconduct on the part of Mr Longford that took place on 17 July 2014 and proximate to 21 July 2014. Following an initial disciplinary meeting on 25 July 2014, Mr Longford was suspended with pay on 30 July 2014. The matters were investigated on behalf of Aboriginal Elders Village by Rory Somes of IR 2000, who provided a report to the Respondent on 31 July 2014. On 8 August 2014, Mr Longford was asked to “show good cause as to why his employment should not be terminated” and provided with detailed allegations and invited to provide a response, which his union, United Voice, did on his behalf on 12 August 2014. However the response did not satisfy the Aboriginal Elders Village, and Mr Longford was dismissed on 15 August 2014.
[7] The letter of dismissal advised Mr Longford that it was his repetition and denial of inappropriate behaviour that led to his termination of employment. 2
7 July 2014 and following
[8] On 7 July Mr Longford, one of three chefs at the Aboriginal Elders Village, presented to two residents a birthday cake that he agrees was substandard and should not have been presented. Unfortunately the cake was baked too close to the time it was needed and so was warm at the time when he came to ice it, which meant that the icing ran and would not adhere to the sides. The cake itself appears to have been presentable; however the icing and the visual presentation of the cake is agreed to have been substandard.
[9] Lara Behan, a Personal Care Worker, complained about the presentation of the cake to the residents by lodging a written complaint form. Standard procedure was for the form to go to the Facility Manager, Jenny Wissell, which it did. Amongst Ms Behan’s feedback was that the cake was “yuk” and “discusting” (sic). Ms Wissell gave a copy of the form to Mr Longford in an envelope on the same day that it was lodged. The form represented a formal complaint and gave Mr Longford feedback about his work. When he received the form he was given an opportunity to write a response and provide that back to Ms Wissell, which he did, writing, in the third person, that “Cook is to allow the cake to cool down before decorating it. He is also to allow more time”. 3
[10] Shortly after, on a day on which Mr Longford was absent from work on account of illness, a regularly scheduled staff meeting was held. Such meetings are held periodically for the predominant purposes mainly of reviewing care to residents. At the meeting Ms Behan brought up the subject of the poorly presented cake. Mr Longford heard about this from another employee 4 and he felt hurt and upset that it was brought up again.5 This was;
“Because I felt that it had been dealt with when I’d filled the form out. I’m a professional at what I do and I admitted my fault. I knew the cake wasn’t right and when I filled the form out and admitted my fault and handed it back I thought, ‘Well, Jenny [Wissell] will have a talk to me about it and we can fix it.’ I didn’t want it to go any further than it has.” 6
[11] On her evidence, Ms Behan said about the conversation in the meeting that she “never used his name at all. I was just merely just stating that I believed that our residents deserved much better.” 7 Other than having raised the matter and complaining that the residents deserved better, Ms Behan does not appear to have asked for any particular action to be taken, and it appears from the evidence that none was decided for action.
17 July 2014 and following
[12] About a week or so after making the complaint about the cake’s presentation, another Personal Care Worker told Ms Behan that Mr Longford was “dirty on her” for having raised the matter in the staff meeting. Ms Behan’s evidence is that the other Personal Care Worker had told the following things;
“About a week or so later a staff member came up to me and said ‘have you had a run in with Michael from the kitchen’ and I said ‘no, not as far as I know’ and she said it was something about a cake. This staff member said to me ‘well he knows about it and he is really dirty on you’.” 8
[13] Shortly after, Ms Behan went to the kitchen when Mr Longford was in it.
[14] What ensued next is that Ms Behan brought up the subject of the poorly presented cake with Mr Longford. Mr Longford says that she did so by apologising for having made the complaint about the cake. 9 Ms Behan agrees that she initiated the conversation, but that rather than remaining calm, Mr Longford became angry;
“12. I went into the kitchen and said to Michael that I was sorry that 1 had made a complaint but I told him that I had to and Michael said “No! You didn’t need to put it in there” and he sounded very angry to me. I told him that I thought our residents deserved so much better and then Michael said, “you know what, you are nothing but a hypocrite you are a backstabber” and then he told me to leave “his” kitchen and to never come back in there. So that is what I did and I said to him “I am sorry you feel that way Michael”. And I went out, I went to the server and when I turned around he was there leaning over me and then leaning into me said that “you need to watch your back, I am going to get you for bullying and harassment, you are nothing but a backstabber, two faced, you are not a team player.” By then I was trembling, it was really threatening.
13. I was trying to shake him off because I was taking a resident their meal to their room and he still followed me along.
14. I was shaken and felt threatened. I turned around and saw that the tea room was full of people and Rita another carer was looking at me. I said to Rita, “did you hear that, I feel really threatened.” 10
[15] Mr Longford denies the core of these allegations and says instead that she said to him that she thought he would care about his cooking; that he told her to leave the kitchen; and that she instead said to him, provocatively, “I thought at least you would put some love in your cooking”. 11 Ms Behan agrees that she said something of this nature, and even agreed to Mr Longford’s form of words in cross-examination, however her handwritten note prepared shortly after the incident phrases the comment differently: “well, if you cooked with a little more love I wouldn’t have to say anything”.12
[16] In Ms Behan’s version of events, Mr Longford followed her out of the kitchen and was at least intimidatory to her. Mr Longford relates a different recollection in which he saw Ms Behan about 10 minutes later. He was walking towards the servery and Ms Behan was walking towards him when the following interaction took place;
“72. As I saw her coming I thought I would take the opportunity to put an end to the ongoing criticism about the cake.
73. I waited for Lara to approach me and then said to her firmly but not loudly “Lara you are bordering on harassment and bullying in the workplace, if you continue to bully and harass me I will put in a complaint about you”.
74. I understand that it is said that I walked next to Ms Behan during this exchange. It is possible that we walked a few steps in the same direction while I said this, but the exchange was very brief so we could not have walked more than a few steps.
75. I would estimate I was between half a meter and a meter away from Lara when I said this.
76. She said “Yeah, fine” and then walked off.” 13
[17] Mr Longford presents these events as two distinct events separated by about 10 minutes. Ms Behan presents them as a single event, or if separated, then by only a very short space of time.
[18] In her initial handwritten statement, Ms Behan says she attended to a resident and;
“When I turned around Michael was there being very threatening, he was in my face saying that I need to watch my back and if I keep it up he is going to have me for workplace bullying and harassment. Then he just walked along side of me very closely saying that I back stab everyone. And to watch ya back. I said to Michael that I was not harassing him. I tried to apologise.” 14
[19] What is clear from the evidence is that following these events, however they may be characterised, is that Ms Behan made a complaint to Clare Pietsch, a Nurse Manager, and Ms Wissell, which led to a direction to Mr Longford to attend a disciplinary meeting. The disciplinary meeting was advised to Mr Longford in a letter dated 18 July 2014. The correspondence set out the allegation that he had approached Ms Behan “and spoken to her a manner which she found threatening” and advised that;
“We have not formed any conclusion about this matter; however you must not exacerbate the situation any further with Lara by approaching her, regardless of your intentions.” 15
The days proximate to 21 July 2014 and following
[20] Notwithstanding this direction, Mr Longford did approach Ms Behan after the disciplinary letter was issued. Ms Behan’s recollection of the interaction is as follows;
“On the Saturday I was in the servery and Michael walked in. Michael said hello Lara, how are you. I said “good”. This interaction was not friendly but quite cold. On the Monday Michael approached me and said that he had been told not to approach me but that on Saturday he had gone home and did a lot of thinking and said that he was out of line and his behaviour was uncalled for and that he knew how intimidated I must have felt. I was feeling very nervous at this stage and I just said to Michael to forget about it. l just wanted him to go home.
I wanted to get Michael away from me and I did not want to have an altercation with Michael especially in this work place. This is a workplace where we have to be caring for the residents and not having altercations between the staff.” 16
[21] Mr Longford’s recollection of this exchange is somewhat different. He knew he was not supposed to exacerbate the situation, 17 however, at one point on Monday, 21 July 2014 he and Ms Behan were both in the servery when an exchange took place between the two, with Mr Longford recording the following in his witness statement about the exchange;
“81. On 21 July 2014 I Lara and I were rostered on again.
82. At one point during the day we were both in the servery.
83. I had had a while to think about what had happened. I had never intended to make Lara feel intimidated but I was sorry about her having felt uncomfortable.
84. I said to Lara “I’m sorry for all this happening” or words to that effect.
85. Lara said “I’m sorry too”.
86. I said I would speak to management and see if we could sort this out. I told her that I thought had a good working relationship and I hoped we could be friends.
87. Lara agreed and said “OK”.
88. I walked off and continued with my duties.
89. Approximately half an hour later I saw Lara again in the Dining Room as I was heading back to the kitchen. Lara was talking to a resident.
90. I asked her “are we OK about this?”.
91. Lara said that we were. She explained that the reason she felt that she had to make a complaint about the cake was because she really cared about the residents.
92. I told her I understood what she meant and her motivations for doing what she did.
93. Lara leaned in and gave me a hug,
94. I remember that Lara and I both said words to the effect that we needed to “move on”.
95. I walked off and have not spoken to Lara since.” 18
[22] In oral evidence, in response to questions from the Commission, Mr Longford gave evidence that he and Ms Behan were present with about four residents and described the exchange in the following way;
“Do you know how she came to be there?---I think she was just having a discussion with the residents, sir.
Did you think that was odd at all, given that you had been directed not to have any contact with her, that here she was in the same room?---Yes, sir.
You did feel that?---Yes.
Did you say that to her?---No, we just apologised to each other and gave each other a hug sort of thing.
Not physically hug though, you’re not saying that?---Yes, sir.
You gave her a hug?---She approached me.
Do you say that that was in the servery?---No, that was in the dining room, sir.
In the dining room?---Yes, sir.” 19
[23] Ms Behan confirms that she did indeed hug Mr Longford and said to him words to the effect that she wanted to move on. 20 Further, Ms Behan gave the following evidence on this subject;
“MS BUTLER: Ms Behan, earlier you gave evidence that you hugged Mr Longford. Why did you hug him?---I think at the time I was just feeling I wanted it all over with, I wanted it to go away. I just wanted to get on with work and, yes, so I just felt it was the right thing to do.
Were you comfortable hugging him?---No.” 21
The investigation
[24] The disciplinary letter sent to Mr Longford on 18 July 2014 advised him there would be a need to speak with him to get his version of events and that disciplinary action may result. An external investigator, Mr Somes, was engaged to conduct this work, which was expanded to include the interaction between Mr Longford and Ms Behan after the letter was issued.
[25] The investigation relied upon two substantive allegations; firstly, Mr Longford’s conduct on 17 July 2014 in his interaction with Ms Behan, and secondly, his conduct on the days proximate to 21 July 2014, involving his further exchange with Ms Behan. The investigation report also addressed concerns about Mr Longford’s conduct during the investigation itself and, in particular, whether he had misled the investigation.
[26] Mr Somes interviewed a number of people about the matters, including Mr Longford and Ms Behan, and provided a report to Aboriginal Elders Village on 31 July 2014. Mr Longford is reported as having told the investigation he felt bullied and intimidated by Ms Behan’s conduct.
[27] Mr Somes did not give evidence in these proceedings. His report is couched as findings or recommendations for action that could be made by Aboriginal Elders and Community Care Services Inc’s Executive Director, Graham Aitken, in his capacity as the decision maker on the allegations against Mr Longford. Importantly, the report suggests the following findings were open to Mr Aitken;
● Mr Longford’s position that he was harassed and intimidated by Ms Behan lacks credibility even without additional evidence;
● Ms Behan’s evidence about the kitchen incident is more plausible, and that her overall account is to be preferred to Mr Longford’s;
● Even though it is not clear exactly what was said at the staff meeting, it does not appear inappropriate for Ms Behan to have raised the matter in that forum. Coupled with this, Mr Somes rejects any proposition that Ms Behan’s actions in doing so amounted to workplace bullying;
● Mr Longford’s deliberate disobedience of a clear direction not to approach Ms Behan, regardless of his intentions, is of concern. 22
[28] Based on these, and other less significant findings, Mr Somes gave pointed advice to Aboriginal Elders Village. He concluded that termination of Mr Longford’s employment warranted consideration and that there were three matters that he considered were “valid reason(s)” for termination, namely Mr Longford’s inappropriate behaviour towards Ms Behan; his deliberate disobedience of the direction not to approach Ms Behan; and his deliberate misleading of the investigation. The recommendations given by Mr Somes also canvassed prior disciplinary action against Mr Longford, however noting that the matter under consideration on this occasion went to his conduct, and not his performance. The conclusion and recommendations also noted that Mr Longford had expressed no remorse in relation to the matters that were investigated. 23
[29] The reference in the conclusions to misleading behaviour on the part of Mr Longford is dealt with in the investigation report, in the context of the meeting that Mr Somes held with Mr Longford on 25 July, at the time they discussed the interaction between Ms Behan (LB) and Mr Longford (ML);
“At this point, I observed to ML and his Union rep that ML’s version of events appeared to be at odds with LB’s version (as referred to in the letter to the Union) and reminded them that the implications of providing misleading responses to a workplace investigation could be severe. This was acknowledged and ML confirmed that he stood by his version of events.” 24
[30] The reference in the above passage to Ms Behan’s version within “the letter to the Union” appears to be a reference to correspondence sent to United Voice by IR 2000 dated 24 July 2014, which provided the following particulars to the union about the matters under investigation, in response to their request. Having made the point that the request may be “somewhat pre-emptive”, Mr Somes advised;
“Nevertheless, in order to facilitate your ability to get instructions from your member, we can advise as follows:
- On 17 July at approximately 12.15 there was allegedly a discussion between Mr Longford and Ms Behan in the kitchen, initiated by the latter following which Mr Longford told her to get out of his kitchen and not come back.
- It is further alleged that Mr Longford then appeared behind her in the nearby servery, was ‘very threatening’ and ‘in [her] face’ and then walked alongside of her while she was walking away from the situation. Mr Longford is alleged to have said more than once to Ms Behan that she should ‘watch [her] back’.
- Ms Behan reported that she felt very shaken up and very intimidated.
Since then, it is also alleged that Mr Longford approached Ms Behan in direct contradiction of the explicit direction in the letter of 18 July.” 25
[31] Mr Aitken’s evidence is that he considered Mr Somes’ report, but did not speak with any of the witnesses it referred to; 26 and concluded that Mr Longford had engaged in inappropriate behaviour, based on the material within the report, “along with other background information which I have about Mr Longford and previous events and incidences”.27 He also read the contents of Mr Longford’s personnel file after having received the investigation report.28 Mr Aitken also made a decision to adopt the recommendations made within the investigation report.
“Show good cause”; response and termination
[32] The first step in adoption of the recommendations was for Mr Somes’ firm, on behalf of Aboriginal Elders Village, to issue a letter to Mr Longford on 5 August 2014 setting out detailed allegations, along with a requirement that he “show good cause as to why his employment should not be terminated”, 29 which United Voice did on his behalf, and in considerable detail, on 12 August 2014.
[33] The “show good cause” letter laid out allegations that were principally associated with Mr Longford’s conduct in the period from 17 July 2014 onwards.
[34] In addition, the letter drew Mr Longford’s attention to the view of Aboriginal Elders Village that the matters complained of in 2014 had similarity to the matters that were the subject of a warning issued in writing to him in May 2012, and that it also proposed to take into account other matters referred to in the May 2012 letter, associated with cleanliness and food safety standards, together with a warning letter issued in January 2013.
[35] The “show good cause” letter concedes that the May 2012 warning letter had not used the words “final warning”, but argues the context of the correspondence means that it “had the same effect”.
[36] The response provided by United Voice set out that Mr Longford denied having used a threatening tone to Ms Behan or that he was “in her face” or that he had said she should “watch her back”. He claimed he felt harassed by Ms Behan since she “repetitively raised issues regarding a cake”. While he approached Ms Behan when under instruction not to, he and she apologised to each other. The response also rejects that prior warnings or issues of work performance should be taken into account by Aboriginal Elders Village in its decision making. The response concludes that “this is a matter of two co-workers having a minor disagreement” and that mediation of the issue is a better response than termination. 30
[37] United Voice’s correspondence in reply also raised questions about matters contained in the “show good cause” letter, which were said to have come to light after the meeting Mr Longford attended on 25 July, and so had not been previously put to him. United Voice also took issue with Aboriginal Elders Village reference to a May 2012 warning. The letter questions whether any warning given in 2012 has relevance to what took place from 17 July 2014, and notes that in any event what was said in May 2012 about “concerns about the cleanliness of the kitchen” were not similar to the allegations made to Mr Longford in the “show cause” letter.
[38] Mr Longford’s response was drawn to the attention of Mr Aitken by Mr Somes together with the following advice;
“In my view, there is nothing substantive in the response that changes the situation as put in the Show Good Cause letter. It effectively reiterates the denials that Mr Longford was in Ms Behan’s face or that he said she should watch her back. It does not specifically reiterate the denial that Mr Longford gave at the meeting that he followed Ms Behan as she walked away from the servery, which is a key point on which there is corroboration from a witness.
The response appears to miss the point (possibly intentionally) that the context of Mr Longford’s performance is that it gives him no credit as distinct from being a potential reason for termination.
Similarly, much is made of the two having made up afterwards, whereas the Employer’s issue is about the behaviour towards Ms Behan in the first place, Mr Longford’s apparent attempts to avoid having that being addressed formally and his ultimate misleading denials about it.” 31
[39] Mr Aitken’s evidence is that once he received this advice, he discussed it with Mr Somes, and indicated to him that he “would be directed by his expert opinion”. Mr Longford was informed of his dismissal by letter on 15 August 2014, which also advised him that he would be paid four weeks pay in lieu of notice. Mr Aitken’s evidence is that the intention of the payment was that it be “a sign of goodwill”. 32
LEGISLATION
[40] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows;
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
CONSIDERATION
[41] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account the legislative factors set out earlier.
(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)
[42] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 33 In doing so, it is necessary for the Commission to take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.34 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.35
[43] As referred to earlier, the subject of the poorly presented cake and Ms Behan’s complaint about it was the subject of two short exchanges between Mr Longford and Ms Behan.
17 July 2014 and following
[44] The first was on 17 July 2014 at about lunchtime. At best the exchange was personally directed and unprofessional and inconsistent with the Aboriginal Elders Village Code of Conduct, 36 with each employee having some fault in the communication. At worst it involved hostile exchanges that could amount to misconduct.37
[45] The allegations made by Ms Behan to her employer about Mr Longford on this first occasion were that;
● He sounded angry when he said to her in the kitchen that she need not have put in a complaint about the poorly presented cake, and he also said there that she was a hypocrite and a backstabber; 38
● He followed her from the servery to the dining room where he was “in her face” saying she needed to “watch her back”. 39
[46] The part of the exchange that took place in the servery, or kitchen, was unwitnessed, however the part that was in the dining room was witnessed by Ms Palmer.
[47] The second exchanges between Mr Longford and Ms Behan were on days proximate to Monday 21 July 2014, when a complaint was made by Ms Behan about Mr Longford approaching her when he was under direction not to do so. That exchange is apparently not witnessed, other than being in the presence of a resident.
[48] The evidence of each of Mr Longford, Ms Behan and Ms Palmer suffers from some level of unreliability.
[49] Ms Behan’s evidence was given with some inconsistency. She provided to the Commission for consideration a written contemporaneous statement, the date of preparation of which is not known; a witness statement; and her oral evidence. There are inconsistencies between each and her version of events appears to have been the subject of revision over time. After making allowances for the inconsistencies in her evidence, I find her to be overall a witness of truth, but someone with an incomplete memory of the detail of events.
[50] Notwithstanding the difficulties with Ms Behan’s evidence, Mr Longford’s evidence is also problematic, appearing to suffer from selective recall and lack of detail where the detail might not assist his case.
[51] For these reasons, I prefer Ms Behan’s evidence to Mr Longford where there is a conflict between the two.
17 July allegations
[52] The allegations regarding the first exchange on 17 July fall into two parts - the unwitnessed conversation in the servery; and what occurred in the dining room.
[53] Notwithstanding what I have identified about Ms Behan’s evidence, it is likely that when she went to the kitchen to obtain some food for a resident, she took the opportunity to discuss with Mr Longford that she had heard from another Personal Care Worker that he was “dirty on” her.
[54] Taking into account how each gave their evidence, and what they say ensued, it is likely that Mr Longford was obviously annoyed that she raised the subject, since it brought back into discussion her criticism of the poorly presented cake. It is more than likely that the conversation degenerated into an unpleasant argument, with him accusing her of being a hypocrite and a backstabber and her being rude in return by saying she felt residents deserved better, and that the cake was terrible and that he should “put some love into his cooking” or “well, if you cooked with a little more love I wouldn’t have to say anything”.
[55] The second part of the exchange is reported by Ms Behan in her oral evidence in the following way;
“When you turned around you say Mr Longford was behind you?---Yes, he was.
Are you suggesting Mr Longford followed you from the kitchen?---Yes.
Mr Longford was about a metre behind you?---No.
Well, can I suggest to you Mr Longford was between half a metre and a metre behind you?---No.
He didn’t at any point during that interaction make any physical contact with you, did he?---No.
He didn’t swear at you, did he?---No.
He didn’t speak loudly, did he?---No.
His actual words were to the effect that, “You’re bordering on bullying and harassment and if you continue I’m going to put in a complaint about you.” That’s right, isn’t it?---It was more of the effect like, “Watch your back,” I’m not a team player, yes, and then he said to me about the bullying and harassment and that he was going to have me for bullying and harassment.
So you’re very clear about what happened. Can you remember it well?---Yes.
So in your recollection he said to you, “Watch your back,” and “You’re not a team player,” and then he said to you he was going to do you for bullying and harassment. Is that right?---Yes.” 40
[56] Ms Behan reported this exchange as “being very threatening” 41 and that at the end of it “...I was trembling, it was really threatening. I was trying to shake him off because I was taking a resident their meal to their room and he still followed me along.”42 Mr Longford concedes he may have walked alongside Ms Behan at the point of this exchange and says that he spoke to her firmly, but not loudly, and with the context of the conversation being this;
“71. Within ten minutes I left the kitchen I was walking towards the servery from the
kitchen and Lara was walking towards me facing towards the kitchen.
72. As I saw her coming I thought I would take the opportunity to put an end to the ongoing criticism about the cake.
73. I waited for Lara to approach me and then said to her firmly but not loudly “Lara you are bordering on harassment and bullying in the workplace, if you continue to bully and harass me I will put in a complaint about you”.
74. I understand that it is said that I walked next to Ms Behan during this exchange. It is possible that we walked a few steps in the same direction while I said this, but the exchange was very brief so we could not have walked more than a few steps.
75. I would estimate I was between half a meter and a meter away from Lara when I said this.
76. She said “Yeah, fine” and then walked off.” 43
[57] While Mr Longford denies having said that Ms Behan was a “backstabber” or that she should “watch her back”, 44 he agrees that he said to her that she needed to leave him alone, and that by bringing up the subject of the poorly presented cake, she was bullying and harassing him.45
[58] Ms Palmer gave evidence about the first exchange on 17 July, however her recollection in oral evidence is different to what she is reported by Mr Somes to have said to him.
[59] The investigation report records the following about these exchanges, noting that the abbreviations used are: ML for Michael Longford; LB for Laura Behan; RP for Rita Palmer and PCW for Personal Care Worker;
“I spoke with RP, a PCW. On the day of the incident, she was sitting, feeding a resident at a table in the dining room. She says that ML came out of the kitchen towards the servery and as LB was coming out of ·the servery he walked up to her. RP recalls distinctly that ML was walking and talking with LB as she walked away from the servery. She heard LB say to ML that she apologised, but not other parts of their conversation. LB looked distressed, so she asked her if she was alright and LB responded that she felt threatened and scared.” 46
“ML was explicit that after he spoke to LB near the servery briefly, he had simply walked away. He specifically denied being threatening and that he continued to pursue her as she walked away. The witness account from RP suggests otherwise.
BL’s account of the demeanour of both ML and LB at the time of the kitchen part of the incident is more consistent with LB’s account than ML’s.
On the basis of the above, I suggest that you are entitled to prefer LB’s overall account to that of ML.
...
ML’s deliberate disobedience of a clear direction not to approach LB, regardless of his intentions, is of concern, even though they both agree that she accepted his apology. ML’s explanation that he felt that he needed to clear the air falls a little flat. His approach to LB and his actions in the lead up to JW’s letter confirming the meeting suggest that his primary motivation was to make the issue go away rather than becoming part of a formal process, because of the potential consequences for him.” 47
[60] The investigation report conveys that Ms Palmer saw Mr Longford come out of the servery and walk up to Ms Behan, and that she “recalls distinctly that ML was walking and talking with LB as she walked away from the servery”. 48 Her witness statement referred to the interaction in the following way;
“I was seated at a table close to where I observed Michael and Lara. I noticed Michael standing over Lara and I heard him say to Lara “just watch your back” and then he walked way.” 49
[61] Ms Palmer’s oral evidence corrected her recollection of this event to say that she had not seen the two approach each other; 50 that they were stationary when she saw them;51 but that she did hear Mr Longford say to Ms Behan “watch your back”.52 Her oral evidence also indicated that she had “never heard” Ms Behan apologise,53 despite that being reported in the investigation report.54 Significantly, Ms Palmer reported the product of this exchange as having a distressing effect on Ms Behan;
“And then she just looked really, you know, as if - frightened, scared. You know, she was, like, shaking and - - -”. 55
[62] Ms Behan reported this exchange initially to Ms Pietsch, the Nurse Manager, who recollects Ms Behan’s demeanour as “pale and looked shaken and visibly upset”. 56 Ms Pietsch also recollects Ms Behan as having said to her, about Mr Longford, that “[h]e had a go at me”.57 In the course of Ms Behan making the report to Ms Pietsch, Ms Wissell, Facility Manager of the Aboriginal Elders Village, joined the conversation. She recollects Ms Behan as appearing upset and reporting that she had been threatened and intimidated by Mr Longford.58
[63] The totality of the evidence on this matter allows a finding that following what transpired between Mr Longford and Ms Behan in the second part of the 17 July exchange, Ms Behan was upset and that she complained to Ms Wissell about her interaction with Mr Longford.
[64] Taken together, the first and second part of the first exchange are not, of themselves, a valid reason for dismissal. However, they were sufficient to require investigation and possibly disciplinary action.
[65] Mr Behan’s complaint about the exchange of 17 July caused Ms Wissell to speak to Mr Aitken, who both decided the complaint required investigation. Mr Longford was advised of that fact in writing in a letter dated 18 July 2014, and was invited to a meeting. He was also directed that until the situation was investigated he was not to approach Ms Behan. The directive is stated in two parts of the correspondence as follows;
“Private & Confidential
Dear Michael
Incident with Lara Behan
We have received a complaint from PCW Lara Behan in relation to an incident yesterday in which you are alleged to have approached her and spoken to her in a manner which she found threatening.
We will need to speak to you about this formally next week and to get your version of events. In the meantime you are directed not to have any contact with Lara.
The meeting can be at two o’clock before your afternoon shift on Tuesday or on Wednesday. Disciplinary action may result, so on the assumption that you will wish to bring a representative, please make the necessary arrangements and confirm which of those options suit you.
We have not formed any conclusion about this matter; however you must not exacerbate the situation any further with Lara by approaching her, regardless of your intentions.
Yours sincerely” 59
[66] The practical effect of the directive could be open to debate. Both Mr Longford and Ms Behan continued to work on their previously rostered shifts, and it is possible that such work might lead them to inadvertently being sometimes in the presence of each other in order to perform their usual duties. It is entirely possible under this arrangement for Ms Behan to have to go to the servery in order to obtain food or drink for a resident and that she might find herself alone in the same room with Mr Longford.
[67] It is doubtful that a fair reading of the instruction would have prohibited that type of innocent or purposive interaction, and as a consequence Aboriginal Elders Village could hardly expect to rely on such an interaction as a breach that would, of itself, lead to disciplinary action.
[68] However a proper reading of the correspondence leaves no doubt that; (a) a serious allegation had been made to the Aboriginal Elders Village management about Mr Longford’s conduct; that (b) he would be accorded fair process through a consideration of his point of view; that (c) a consequence of the complaint may well be disciplinary action; and that (d) he must not have any contact with Ms Behan and especially must not initiate any contact with her.
The days proximate to 21 July 2014, and following
[69] There were two subsequent exchanges between the Mr Longford and Ms Behan.
[70] Mr Longford’s evidence is that on the weekend prior to 21 July he said “hello” to Ms Behan because he did not know how she would react, with Ms Behan corroborating the exchange, saying “Michael said “hello Lara, how are you. I said ‘good’. This interaction was not friendly but quite cold.” 60 There is nothing untoward with that exchange, and it was not a breach of the directive, given that no effort had been taken by the Village’s management to place the staff on separate shifts.
[71] Ms Behan then reports a further exchange as follows, on 21 July 2014;
“... On the Monday Michael approached me and said that he had been told not to approach me but that on Saturday he had gone home and did a lot of thinking and said that he was out of line and his behaviour was uncalled for and that he knew how intimidated I must have felt. I was feeling very nervous at this stage and I just said to Michael to forget about it. l just wanted him to go home.
21. I wanted to get Michael away from me and I did not want to have an altercation with Michael especially in this work place. This is a workplace where we have to be caring for the residents and not having altercations between the staff.” 61
[72] Mr Longford reports the exchange, with greater detail, in his written statement, and as set out earlier, at paragraph [20].
[73] Mr Longford elaborated on his written statement as follows;
“At paragraph 83 you say to Lara, “I’d had a while to think about what happened. I had never intended to make Lara feel intimidated, but I was sorry about her having felt uncomfortable”?---That’s correct.
Mr Longford, what did you mean by that statement? That you had not intended to make her feel intimidated or make her feel uncomfortable?---I wanted a good working relationship with Lara in the workplace and I wanted to sort it with her, so we wouldn’t exacerbate the cake situation.
What made you think that she was feeling intimidated?---I don’t think she was.” 62
[74] Ms Behan did not refer to being hugged by Mr Longford in her witness statement, and when she gave oral evidence about it, thought it occurred on the Saturday. 63 Notwithstanding this, there is corroboration of this incident in a handwritten note prepared by Ms Pietsch, the Nurse Manager, who was told of what had happened by Ms Behan. Her note was written the same day of Ms Behan’s report64 and records the following (the abbreviation “DR” refers to the dining room);
“Michael approached Lara a while later in DR. Lara explained why she upset over the cake incident and Michael said he understood and Lara offered a hug to Michael and said she wanted to get past this.” 65
[75] Ms Wissell’s evidence was that once she learned about this exchange the next day, she raised it with Mr Longford;
“I immediately spoke with the Applicant and asked him why he approached Lara despite a direct instruction not to do so. The Applicant’s reply to me was “I know I shouldn’t have, but this is silly and I needed to fix this”. 66
[76] Ms Behan’s conclusion to the Commission about the hug was that she “wanted it all over with, I wanted it to go away” and that she was not comfortable hugging him. 67
[77] The investigation conducted by Mr Somes included a meeting convened with Mr Longford and his representative on 25 July 2014. In that meeting Mr Somes apparently questioned whether Mr Longford was providing a truthful account of what had occurred, and reminded him of the consequences of providing misleading responses to a workplace investigation. The investigation report notes that Mr Longford stood by his version of events, even after being reminded of these consequences and that “he felt bullied by LB and intimidated because she kept bringing up the cake, which was unjustified criticism”. 68
[78] In context, this reasoning about his own conduct, given to the investigator on a date after Mr Longford had made the approach to Ms Behan and hugged her, is self-serving and disingenuous and gives no explanation to the investigator about why he acted as he did.
[79] The evidence which I accept about the interaction around 21 July, is that of Ms Behan. She was prepared to be cordial, which explains her response to Mr Longford when he said “hello”, however there is no evidence to suggest that she was anything other than uncomfortable with the more substantial interaction which occurred on the second occasion, including the hug.
[80] Mr Longford’s evidence to the Commission about why he initiated contact with Ms Behan despite having been directed not to have contact with her, or to approach her, was that he “wanted a good working relationship with Lara in the workplace and ... wanted to sort it with her, so we wouldn’t exacerbate the cake situation”. 69 I take from this that he had the desire and motive to initiate contact with Ms Behan, when he knew that such contact would be contrary to the direction he was under, not to have any contact with her, or to approach her. While this reasoning was given to the Commission, it appears not to have been given to Mr Somes.
[81] The combined effect of Mr Longford’s conduct on 17 July with that on the days proximate to 21 July 2014 give rise to a valid reason for his dismissal.
[82] Despite being under a disciplinary cloud for what had taken place on 17 July, Mr Longford displayed no insight into his situation, and knowingly contravened an explicit instruction from Aboriginal Elders Village.
[83] The complaint against him had been put to him in writing on 18 July, and advised him it was “in relation to an incident yesterday in which you are alleged to have approached [Ms Behan] and spoken to her in a manner which she found threatening”. 70 The operative part of the allegations were that he had approached Ms Behan and that his approach had been threatening.
[84] The conduct of Mr Longford on the days proximate to 21 July 2014 raises similar issues, since the evidence allows me to find that he approached Ms Behan, who was upset as a result. The evidence I prefer of the interactions of the two around that time is that of Ms Behan, in which she recalls that Mr Longford approached her, and that following his approach she “was feeling very nervous”, even though it was a “relatively friendly interaction”. 71 The evidence allows, and I find, that Mr Longford approached Ms Behan and that he caused her to feel threatened, which is a repetition of the alleged conduct he had been put on notice about on 18 July.
[85] In proper context, the investigation report conducted by Mr Somes made findings about Mr Longford that were reasonably open to him as an investigator, and which were consistent with the inquiries he made and the information that the various staff members related to him. In the absence of any explanation from Mr Longford about why he subsequently approached Ms Behan, despite being instructed not to, the investigator’s findings and recommendations were balanced and reasonably open to him. The decisions subsequently made by Mr Aitken were also reasonably open to him, on the basis of the information he had at his disposal through the report provided by Mr Somes.
[86] I am satisfied that, on the balance of probabilities, the misconduct related in the termination letter of 15 August 2014 took place and that it was sufficiently serious for dismissal.
[87] Accordingly I find that Aboriginal Elders Village had a valid reason for Mr Longford’s dismissal related to his conduct.
(b) whether the person was notified of that reason
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[88] For the detailed reasons related earlier, I find that the evidence supports that Mr Longford was notified of the reason for his dismissal; that he was given an opportunity to respond to that reason and that the detailed response he gave through his union was considered and taken into account by Aboriginal Elders Village before it made a decision to dismiss him.
(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;
[89] I also find that since Mr Longford was given an opportunity to have his union, United Voice, represent him in the investigatory meeting and to provide a detailed response to the allegations made against him, there was no refusal by the employer to allow Mr Longford to have a support person present to assist at any discussions relating to the dismissal.
(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
[90] Mr Longford’s dismissal did not relate to his unsatisfactory work performance and so this criterion is a neutral factor in my consideration of whether or not his dismissal was unfair. While the “show good cause” letter to Mr Longford raised consideration of his past employment history and Mr Aitken perused Mr Longford’s personnel file and took into account the material it contained, as well as his own knowledge of Mr Longford’s employment history, those matters were demonstrably not the reasons relied upon by Aboriginal Elders Village for dismissal.
(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;
[91] The size of the employer’s enterprise, and its access to human resource management specialists or expertise, do not appear to have influenced in any particular negative way its consideration of Mr Longford’s conduct and its decision to dismiss him. The evidence supports that Aboriginal Elders Village is not a small business within the meaning of the Act. While the evidence indicates that the respondent used Mr Somes as an outsourced human resource management or industrial relations practitioner, such activity did not compromise its ability to make a decision about Mr Longford’s conduct, and the evidence instead supports that the outsourced arrangement was likely to the benefit of Aboriginal Elders Village in its decision-making.
(h) any other matters that the FWC considers relevant.
[92] As referred to above, there is evidence before me about the contents of the “show good cause” letter and Mr Aitken’s perusal of Mr Longford’s personnel file and drawing upon of his own knowledge of Mr Longford’s employment history. In some circumstances such evidence might be a relevant matter to be taken account of, however, I do not do so since those matters were demonstrably not the reasons relied upon by Aboriginal Elders Village for dismissal.
[93] Further, there is evidence before me both regarding mooted changes to Mr Longford’s rostered hours of work, as well as his potential redundancy. 72 Again, I do not consider these to be relevant matters to be taken account of in forming my view about whether Mr Longford’s dismissal was harsh, unjust or unreasonable, for the reason the evidence does not support those matters as being an operative reason for his dismissal.
[94] As a result, I do not find any other matters that are relevant and which require being taken into account.
[95] Having considered in detail all of the criteria within s.387 of the Act I find that there are no matters that would cause me to find that irrespective of there being a valid reason for the dismissal of Mr Longford his dismissal was otherwise harsh, unjust or unreasonable.
CONCLUSION AND ORDER
[96] After consideration of the foregoing issues, I find that Mr Longford was not unfairly dismissed within the meaning of the Act.
[97] As a result, I must now dismiss his application and an order to that effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
Mr P Dean, United Voice, on behalf of Mr M Longford
Ms R Butler, solicitor, RM Butler Lawyers for Aboriginal Elders and Community Care Services Inc T/A Aboriginal Elders Village
Hearing details:
2014.
Adelaide:
December 15 and 16.
1 Exhibit R1, paras 9 – 11
2 Exhibit A4, Attachment H
3 Exhibit A4, Attachment B
4 Transcript, PN 94 - 95
5 Transcript, PN 265 - 269
6 Transcript, PN 270
7 Transcript, PN 469
8 Exhibit R2, para 11
9 Exhibit A4, para 62
10 Exhibit R2, paras 12 - 14
11 Exhibit A4, paras 65 - 70
12 Transcript, PN 375, 549; Exhibit R2, Attachment LB-2
13 Exhibit A4, paras 72 - 76
14 Exhibit R2, Attachment LB-2
15 Exhibit A4, Attachment C
16 Exhibit R2, paras 20 – 21
17 Exhibit A4, para 79
18 Ibid, paras 81 - 95
19 Transcript, PN 324 – 331
20 Transcript, PN 384
21 Transcript, PN 601 – 602
22 Exhibit R6, Attachment GB-3, p.5
23 ibid, p.6
24 ibid, p.3
25 Exhibit A2, Attachment D
26 Transcript, PN 1040
27 Transcript, PN 1045
28 Transcript, PN 1226
29 Exhibit A4, Attachment F
30 Exhibit A4, Attachment G
31 Exhibit R6, Attachment GB-5
32 Ibid, para 15
33 Edwards v Giudice (1999) 94 FCR 561, at [6]‒[7]
34 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at [171]
35 Streeter v TelstraCorp Ltd (2008) 170 IR 1
36 See Exhibit R6, Attachment GB-1
37 see for example Transcript PN 222
38 Exhibit R2, para 12
39 Exhibit R2, Attachment LB-2
40 Transcript, PN 572 - 581
41 Exhibit R2, Attachment LB-2
42 Ibid, paras 12 - 13
43 Exhibit A4, paras 71 - 746
44 Transcript, PN 223 - 224
45 Transcript, PN 233; 295 - 296
46 Exhibit R6, Attachment GB-3, p.4
47 Ibid, p.5
48 Ibid, p.4
49 Exhibit R3, para 3
50 Transcript, PN 634
51 Transcript, PN 647
52 Transcript, PN 633
53 Transcript, PN 709
54 Exhibit R6, Attachment GB-3, p.4
55 Transcript, PN 638
56 Exhibit R4, para 6
57 Transcript, PN 765 - 768
58 Exhibit R5, para 6 - 7
59 Exhibit A4, Attachment C
60 Exhibit R2, para 20
61 Ibid, para 20 - 21
62 Transcript, PN 149 -151
63 Transcript, PN 418
64 Transcript, PN 779
65 Transcript, PN 785 -788; Exhibit A5
66 Exhibit R5, para 14
67 Transcript, PN 601 - 602
68 Exhibit R6, Attachment GB-3, p.3
69 Transcript, PN 150
70 Exhibit A4, Attachment C
71 Exhibit R2, para 20; Transcript, PN 416; 420
72 Exhibit A4, paras 33 - 38
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