DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Renton
v
Bendigo Health Care Group
(U2016/11206)

COMMISSIONER BISSETT

MELBOURNE, 30 DECEMBER 2016

Application for relief from unfair dismissal – Facebook posts – whether serious misconduct – valid reason – dismissal harsh – reinstatement not appropriate – compensation to be further considered.

[1] Mr Michael Renton worked for Bendigo Health Care Group (Bendigo Health) in the Marjorie Phillips Unit which looks after aged psychiatric patients. In August 2016 Mr Renton posted a video to Facebook in which he ‘tagged’ two work colleagues with the statement ‘Frank Christie getting slammed by Jo Keown at work yesterday!’ At around the same time, Mr Renton left blobs of white sorbolene cream on Mr Christie’s desk at work.

[2] Mr Frank Christie, a Clinical Social Worker at Bendigo Health, complained about the Facebook post and the blobs of sorbolene cream on his desk. Mr Renton was issued with a letter dated 9 August 2016 in which he was asked to provide a response as to his conduct in these two matters. At a meeting on 18 August 2016, Mr Renton admitted to the conduct (that he had tagged his colleagues in the Facebook post and had put the sorbolene cream on Mr Christie’s desk). After considering his explanation, Mr Renton was advised that a recommendation would be made to the CEO to terminate his employment. This was confirmed and, on 19 August 2016, Mr Renton’s employment was terminated for conduct deemed to be serious misconduct. He was paid four weeks’ pay in lieu of notice.

[3] Mr Renton claims that he was unfairly dismissed and now seeks relief from that dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). He seeks reinstatement and associated orders for continuity of employment and payment for the period between his dismissal and any date of reinstatement.

Evidence

[4] Evidence in the matter was given by:

● Mr Michael Renton – Enrolled Nurse, Bendigo Health.

● Ms Debra Cogo – Registered Nurse and Health and Community Services Union delegate, Bendigo Health.

● Mr Frank Christie – Clinical Social Worker, Marjorie Phillips Unit, Bendigo Health.

● Ms Jo Keown – Clinical Social Worker, Marjorie Phillips Unit, Bendigo Health.

● Ms Kerryn (Lee) McNally – Advisor, People and Culture, Bendigo Health.

● Ms Natalie Hutchins – Business Unit Manager, Marjorie Phillips Unit, Bendigo Health.

● Mr Tim Lenten – Director of Nursing (Psychiatric services), Bendigo Health.

● Ms Andrea Noonan – Director, People and Culture, Bendigo Health.

The Facebook post

[5] Mr Renton says that on or about 4 August 2016, he saw a video on Facebook titled ‘horrific stuff’ with a message to ‘Tag a mate who wants to do this’.

[6] The video was of an obese woman in her underwear dropping her stomach on to the back of a man on all fours, also in his underwear. In the video, the woman can be heard to say ‘how heavy is that’…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michael Renton v Bendigo Health Care Group

Details

AGLC: Michael Renton v Bendigo Health Care Group [2016] FWC 9089
Case: [2016] FWC 9089
Decision Date: 30 DECEMBER 2016

CaseChat Overview and Summary

Michael Renton, an employee of Bendigo Health Care Group, applied for relief from his dismissal, arguing it was unfair. The dispute centred on Renton's Facebook posts, which the employer deemed serious misconduct warranting termination. The Fair Work Commission was the forum for this application, tasked with determining the fairness of the dismissal and potential remedies.

The central legal issues revolved around whether Renton's conduct constituted serious misconduct justifying dismissal and, if so, whether the dismissal was fair in the circumstances. Additionally, the Commission considered whether the dismissal was harsh, unjust, or unreasonable, and if reinstatement was a suitable remedy.

The Commission found that Renton's posts did amount to serious misconduct, justifying his dismissal. However, the dismissal was deemed harsh due to a lack of prior warnings and the absence of a formal investigation. The Commission determined that reinstatement was not appropriate but directed the parties to further consider compensation as a remedy.

The Fair Work Commission ordered the parties to confer to determine the appropriate compensation for Renton, reflecting the harshness of his dismissal despite the justification for his termination.

Orders