Mostafa Hassan v Australia and New Zealand Banking Group Limited
[2013] FWC 3848
•19 JUNE 2013
[2013] FWC 3848 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mostafa Hassan
v
Australia and New Zealand Banking Group Limited
(U2012/11740)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 19 JUNE 2013 |
Application for unfair dismissal remedy.
[1] Mr Mostafa Hassan (the Applicant) was employed by the Australia and New Zealand Banking Group Limited (the Respondent) from 2 October 2006 until his employment was terminated on 12 July 2012.
[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (the FW Act) alleging that he was unfairly dismissed. The application was heard on 13 and 14 November 2012, 21 February 2013 and 27 March 2013.
[3] Ms Alanna Duffy of Counsel was given permission to appear for the Applicant and Mr Marc Felman of Counsel was given permission to appear for the Respondent.
Jurisdiction of the Fair Work Commission
[4] There is no dispute that the Applicant is a person who was protected from unfair dismissal. The Fair Work Commission (the Commission) has the jurisdiction to determine the application.
Background
[5] The Applicant was employed in Late Stage Loans Collections and he was a Team Leader. In early 2012 there was a restructure and in February 2012 the Applicant was advised that he had not been successful in achieving a permanent position and he was placed on redeployment. He was advised that he would lead a new team on a temporary contract which would end in November 2012. If he was not permanently redeployed his employment would have terminated by reason of redundancy. 1 However, prior to this date, he was dismissed by the Respondent.
The Reasons for the Termination
[6] In the letter of termination the Respondent advised the Applicant that his employment was terminated for misconduct. The misconduct identified by the Respondent was as follows:
1. Isolating Mr I as retaliation for Mr I making a complaint about the Applicant to the Applicant’s manager.
2. Writing “get stuffed” on Mr I’s annual leave application form and ripping up the request.
3. Failing to act reasonably by repeatedly directing Mr A to stand behind an imaginary line when he approached the Applicant at his computer.
4. Giving female employees massages.
5. Making inappropriate remarks about team members.
6. Referring to the perceived attractiveness of female employees at work.
7. Referring to team members by their ethnic heritage.
8. Failing to respond appropriately to a disclosure of objectionable sexual conduct and failing to assist the complainant.
[7] The letter further advised the Respondent had found that the Applicant’s responses to specified complaints, namely complaint numbers 1, 2 and 8 had been dishonest.
[8] The Applicant was paid in lieu of notice.
The evidence
Allegation 1
[9] Mr I gave evidence that he was a member of the Applicant’s team. 2 In 2009 another employee (the seconded employee) was seconded to the Applicant’s team. The employee’s secondment was not continued and Mr I told the Applicant that he was disappointed with how the employee’s secondment had been handled.3
[10] In January 2010 the Early Stage Team Leader (MH) approached Mr I and told him that he was to report to him. 4 Mr I was relocated away from the Applicant’s team and was no longer included in buzz meetings organised by the Applicant. Mr I accepted in cross examination that the Applicant was not solely responsible for the transfer.5 He also accepted in part that MH had organised a pilot and had identified Mr I as the best candidate for that position.6 However he complained that he was not given a choice about being in the pilot.7 It was his view that the Applicant had organised his transfer with MH.8 He accepted that MH asked him to transfer and that once the transfer occurred MH was his team leader.
[11] In or about March 2011 Mr I had a period of leave and advised that he no longer wanted the role in the pilot and there was some confusion about what his role would be. 9
[12] Mr I said he was transferred back to the Late Stage team but he was still located away from the rest of the team. Mr I asked the Applicant if he could be located with the team but the Applicant told him this was not possible. Subsequently Mr I was relocated to the same location as the rest of the Applicant’s team and the Applicant then included him in buzz meetings. However Mr I said that the relationship did not return to what it was before. 10
[13] The evidence established there was a decision taken to have a member of the Late Stage team dedicated to taking late stage inbound calls. This was a pilot project. When this occurred Mr I was moved to another area on the same floor as the Applicant’s team but from that point on was not included in any Late Stage team meetings.
[14] Mr I formed the view that the Applicant had had him moved because he had raised his concerns about the treatment of the seconded employee and other matters. 11
[15] The Applicant denied that Mr I ever raised any concerns about his treatment of the seconded employee. 12 The Applicant denied excluding Mr I from meetings. It was his evidence that Mr I was not in his team from 15 January 2010 and he was therefore not required to include him in team meetings.13 It was the Applicant’s evidence that on this date he became the team leader of the Outbound Late Stage team.14
[16] The Applicant repeatedly denied making a decision to unilaterally move Mr I from his team. It was his evidence that he did not have involvement in the pilot and that the decision to appoint Mr I to the pilot was made by another team leader and he simply facilitated that move. It was his evidence that while Mr I was working in the project Mr I did not report to him and therefore he had no managerial responsibility for Mr I. 15
[17] Ms W conducted the investigation into the allegations against the Applicant. As part of the investigation she interviewed MH who was not called to give evidence in these proceedings. It was her evidence that MH told her that the pilot project was his initiative 16 and he had asked staff if they were interested in participating in the project and he had chosen Mr I for the project.17
Allegation 2
[18] In or around October 2009 Mr I submitted an annual leave request form to the Applicant so he could take annual leave in March 2010. It was his evidence that a few days later Mr I was called over by the Applicant and the Applicant wrote “get stuffed” on the form. He then tore it to pieces. Mr I gathered up the pieces and put the pieces onto his desk. 18 Mr I did not think the Applicant was joking as “he was not smiling and seemed to be in a serious mood.”19 Some days after this incident the pieces were no longer on his desk.20
[19] Ms LW was another member of the Late Stage team from June 2009 to April 2010. The Applicant was her team leader during this time. Ms LW gave evidence that Mr I had told her that he was submitting an annual leave application. She gave evidence that she saw Mr I approach the Applicant’s desk and she saw the Applicant write “get stuffed” on the annual leave request form, laugh and tear up the form. She did not think the Applicant was joking “because, while he was smiling, his manner seemed to be aggressive.” 21
[20] Ms LW saw Mr I take the torn pieces. It was her evidence that Mr I said he had taped the pieces back together. It was her evidence that on another day she saw the Applicant go to Mr I’s desk and look through the drawers.
[21] Mr S was a Senior Employee Relations Advisor at the time of this incident. In August 2010 there was a complaint made by an employee that the Applicant had bullied him and other employees. One of the allegations under investigation was the allegation that the Applicant had written “get stuffed” on Mr I’s leave application form. 22
[22] Mr S gave evidence that he attended a meeting at which the Applicant was asked about this incident. Mr S said that the Applicant admitted writing “get stuffed” on the leave application form but he said it was done as a joke.” 23 Present at this meeting was another Senior Employee Relations Advisor. There were no notes of this meeting and while there was discussion with the Applicant about the incident there was no evidence that there was any counselling or warning given to the Applicant about this incident.
[23] The Applicant categorically denies that this incident occurred. 24 He also denied that he admitted this conduct to Mr S.
Allegation 3
[24] Mr A was seconded to the Applicant’s team in January 2010. He complained that when he approached the Applicant at his pod the Applicant would lock his computer screen. It was Mr A’s evidence that the Applicant told him not to look at his screen. It was his evidence that the Applicant did not do this when other staff approached him, nor did he hear the Applicant ask them not to look at his screen. Mr A felt he was being treated differently. 25
[25] On 18 November 2011 Mr A approached the Applicant about a work matter. As he approached the Applicant’s pod Mr A said the Applicant locked his computer screen and told him not to look at his screen. The Applicant then “held up his hand to me and pointed at a spot on the floor in line with the divider of his pod. He then said words to the effect of ‘Don’t cross that line. If you want to talk to me, stay behind that line and talk to me.” 26
[26] Mr A said that the Applicant spoke in a loud voice and other staff could hear him. He felt upset by the Applicant’s conduct. 27
[27] Mr I gave evidence that in late 2011 he heard the Applicant say something like “stand behind this line” to Mr A. 28
[28] The Applicant sent Mr A an email about this incident on the same day. He said “When I asked you to move away from viewing distance of my screen I expect that you would do so in a timely manner. In this instance you did not budge.” The Applicant said that Mr A should have moved away to allow him to minimise his screen because there was sensitive information on the screen. He said that it was not about trust but confidentiality and if he had seen others in viewing distance of the screen it was because there was no sensitive information about staff members on the screen at the time. 29
[29] Mr A replied to that email and told the Applicant that he did not behave like this with other staff and he told the Applicant that he was embarrassed by what had occurred. 30
[30] The Applicant replied and said it had not been his intention to be unprofessional. The Applicant explained why he had behaved as he had and proposed that they meet to discuss the issues. 31
[31] At that meeting Mr A said that the Applicant told him that if he had an issue with him he should complain to human resources. Mr A found the Applicant intimidating. 32
[32] On 23 November 2011 the Applicant sent Mr A another email in which he summarised the meeting. The Applicant felt that a lot of good had come out of the meeting and he asked Mr A if he agreed with his summary of the meeting. Mr A did not disagree with the Applicant’s summary. 33
[33] In cross examination Mr A said that his response to the Applicant was not what he really felt. He said he wrote that because he did not want any trouble. 34
[34] Mr A said he had not made a complaint about this incident because he was scared he would lose his job.
[35] When this allegation was put to the Applicant during the investigation he said it was a miscommunication and that he had realised his mistake and had spoken to Mr A and apologised. 35 In cross examination he denied that he had told Mr A to stand behind a line though he accepted that he had spoken to Mr A in a louder voice than he should have.36
Allegation 4
[36] No employees who were given massages by the Applicant gave evidence in this matter. Further, no employees who were given massages by the Applicant complained to the Respondent.
[37] Ms LW said she saw the Applicant give female employees massages. She said she never saw him massage male employees. She said she never heard the Applicant ask employees if they wanted a massage and neither did she hear employees ask the Applicant for a massage. 37
[38] Mr I gave similar evidence. 38 Mr I listed some of the females including someone I presume is Ms LW who the Applicant was said to have massaged. Ms LW did not give any evidence that the Applicant gave her an unsolicited massage.
[39] Mr A gave similar evidence that he saw the Applicant give male employees massages as well. 39
[40] The Applicant gave evidence that there was no policy that said he should not massage employees. It was put to him that because he was a team leader he was held to a different standard. It was his position that he was never informed of this. It was his evidence that massaging employees is “a part of the culture”. He further denied massaging only female employees. 40
[41] The Applicant gave evidence that he could only recall giving one female employee a massage. It was his evidence that he only massaged employees when asked. 41
[42] In his initial interview the Applicant is recorded as denying that he had even given women massages. His explanation for this conflict in this evidence was that it had been put that he massaged employees on the floor which he understood meant literally on the floor and he had not done this. He did admit in this interview that he had massaged his manager at his request. 42
Allegation 5
[43] It is alleged that the Applicant referred to two team members as “gay”. 43
[44] The two team members did not give evidence. Minutes of their interviews were tendered without objection. 44
[45] One of the team members was asked if he had heard the Applicant say about him and another team member being gay because they sit together. His response was “yes but it’s only a joke, no offence is taken. H and I are best friends and are always together. It’s an ongoing joke because we are the closest they will say we are lovers. The team says it. I’m not offended.” 45
[46] The other team member in response to a question about whether the Applicant referred to them as gay said “Yes but it’s not offensive we take it as a joke. J and I are very good friends.” 46
[47] The Applicant denied the allegations. 47 It was his evidence that he did not believe that that the two team members had told the investigator that he had said this.48
[48] Mr I gave evidence that he heard the Applicant refer to the two employees as gay on numerous occasions. 49
[49] It was submitted that I should not have regard to the hearsay evidence put by the Respondent as it could not be tested by the Applicant. However Mr I is an independent witness to these events.
Allegation 6
[50] Ms LW gave evidence that the Applicant made inappropriate comments about female staff. He would refer to some women as “the talent”. He would say whether he thought women were ‘hot’ or not. He would also comment on their clothing. 50
[51] Mr I gave similar evidence. 51
[52] The Applicant denied these allegations. He said he was not provided with specific allegations and no complaints had been made about these comments. 52
Allegation 7
[53] Ms LW gave evidence that she heard the Applicant refer to team members by their ethnic heritage. She said other team members did this as well. 53
[54] Mr I gave similar evidence. 54
[55] The Applicant denied the allegation. 55 He submitted that there was a culture in the department of referring to other employees by reference to their ethnic heritage but that it usually occurred in the context of table tennis games.56
[56] It was submitted by the Applicant that I should have regard to the record of interview tendered by the Respondent in which one of the team members responded to the question put by the investigator about whether the Applicant referred to him as “lebo” by saying “everyone does it, [The Applicant] doesn’t really participate. The team will do it.” 57 However if I am to have regard to that I can equally have regard to the response by the other team member who said in reply to a question about people being referred to by their heritage that it happened “but it’s more of a joke everyone does it among the team.” When asked if the Applicant said it, the response was “yes, maybe once or twice.”
Allegation 8
[57] Ms LW gave evidence that another team member (Mr T) used to make inappropriate jokes of a sexual nature about women. He also commented on women’s appearance. She said some of these comments were directed at her. It was her evidence that these comments made her feel uncomfortable. It was her evidence that the Applicant heard these comments and jokes and joined in and made inappropriate jokes and comments of his own. 58
[58] She spoke to other staff about Mr T’s behaviour including Mr I who suggested she speak to the Applicant. 59
[59] In late 2009 Ms LW spoke to the Applicant and told him that Mr T’s behaviour was making her uncomfortable and she asked him to get Mr T to stop. It was her evidence that the Applicant told her, in effect, that it was her fault; that she was leading Mr T on because she laughed at Mr T’s jokes. She told the Applicant that she laughed at his jokes because she did not know how to respond. Ms LW said she told Mr I about this conversation. 60
[60] After this incident the team relocated, the Applicant asked the team members for their seating preferences. Ms LW told the Applicant that she would be happy to sit anywhere but not next to Mr T. However the Applicant put Ms LW next to Mr T and this required them to share some desk space. 61
[61] Ms LW spoke to Mr I and another employee and told them she was unhappy with this and they suggested she speak to the Applicant. She was reluctant to do so and Mr I said he would speak to the Applicant. 62
[62] Ms LW said that Mr T’s inappropriate conduct continued. A few weeks later Ms LW saw M T take her photograph. She told him not to do it. Mr I told her that he would meet with the Applicant’s supervisor Mr H and ask him to intervene. 63
[63] Subsequently Mr H met with the Applicant and she told him what happened. She saw Mr W take Mr T into a meeting and after that the behaviour stopped. 64
[64] Mr I confirmed that in mid 2009 Ms LW complained to him about Mr T’s conduct and that it made her uncomfortable. He said he had heard some of the comments but did not pay much attention to them. He heard Ms LW complain to the Applicant but he would joke about it. In late 2009 or 2010 Ms LW told Mr I that she had complained to the Applicant but he had not offered to assist her and said she was responsible for Mr T’s behaviour towards her. 65
[65] Mr I confirmed that Ms LW told him she had spoken to the Applicant about the new seating arrangements and that she did not want to sit next to Mr T. Mr I said Ms LW was upset about the new seating arrangements. Further, Ms LW also told him about the photograph incident. 66
[66] Mr I said he spoke to the Applicant about the seating arrangements but he did not get a satisfactory response. 67
[67] Mr I then spoke to Mr H about the issues and he said he would meet with Ms LW and Mr T. 68
[68] Ms LW made a complaint about Mr H in, it appears, 2010. While her complaint was not formally about the Applicant she did outline in that complaint the incidents set out in allegation 8. Her description of the events is broadly consistent with her evidence to the Commission, though in her statement in 2010, she said that the Applicant placed another team member between her and Mr T when she complained about the seating arrangements. However as she was still only one seat away from Mr T she was still uncomfortable. 69
[69] The Applicant denied that any complaint was raised with him by either Ms LW or Mr I. He relied upon records of one-on-one meetings with Ms LW to support his claim that she had not complained to him. 70
The earlier investigations
[70] The investigation report 71 indicated that in 2009-2010 complaints were made against the Applicant alleging bullying and inappropriate behaviour. No adverse findings were made against the Applicant.72 One of the allegations made in that complaint was that the Applicant had written “get stuffed” on Mr I’s leave application form.73 There is no doubt that senior human resources staff were aware of this allegation as Mr S, a senior employee relations advisor, recalls the Applicant admitting this conduct in an interview. Yet no disciplinary action was taken at the time. No explanation was provided by the Respondent about why no adverse findings were made at this time.
[71] Further the Respondent knew about Ms LW’s complaint in August 2010 and while she directed that complaint against Mr H, and not the Applicant, many of the matters she complained of them were re-agitated in this complaint. The only explanation provided of why no action was taken then was that Ms LW did not make a formal complaint about the Applicant.
[72] In September 2010 the Applicant himself made a complaint about Ms LW alleging that she was soliciting staff complaints against him. Those complaints were found to be unsubstantiated.
[73] In September 2010 Mr I made complaints about the Applicant. He complained of poor people management, bullying and harassment. No records could be found of any formal investigation but these complaints, along with the Applicant’s and Ms LW’s complaints, “were investigated and closed off.” However there “was no formal record of outcomes.” As a consequence it was considered that those complaints would be part of this investigation.
[74] There is no evidence that any steps were taken to discuss with the Applicant any issues about his management style, even in the most general terms. No additional training was given to him. He was certainly not counselled about these issues.
[75] It is clear that from 2009 the Respondent was on notice that there were behavioural issues in the team but no remedial action was taken.
Dishonesty in the investigation process
[76] Given the findings of the investigation, Mr W who made the decision to terminate the Applicant’s employment formed the view that the Applicant had not been honest in his answers to the investigators. 74 He had particular regard to Mr S’s evidence that the Applicant had previously admitted ripping up Mr I’s annual leave application form and now denied it.75
Impact of the termination on the Applicant
[77] The Applicant gave evidence that since the termination of his employment he has been unfit for work due to stress and anxiety. 76 This is undoubtedly having a financial impact on the Applicant. The Applicant further gave evidence that he expects the circumstances of his dismissal will impact on his ability to obtain employment particularly in the financial services sector.
Findings
[78] It was put by the Applicant that I should not prefer Mr I’s evidence over the Applicant’s evidence because Mr I’s evidence was tainted by his belief that the Applicant had been responsible for moving him to the pilot project. 77 It was submitted that this may impact his other evidence.
[79] However the difficulty with this submission is that this was not put to Mr I in cross examination. Further the evidence of Mr I was generally substantiated by other witnesses. It is not simply a matter of the Applicant’s evidence against Mr I’s evidence it is Mr I’s, Ms LW’s, Mr A’s and Mr S’s evidence.
[80] Further two of the alleged incidents (namely those described in allegation 2 and allegation 8) predated the transfer to the pilot program and it is clear that these incidents had been raised with the Respondent prior to the complaint under investigation.
[81] It was submitted that Ms W had some concerns about Ms LW’s evidence arising from earlier complaints made by her and other employees. Ms W, who conducted the investigation on behalf of the Applicant said that she had regard to “the history and context of her background with [the Applicant] and in [the Applicant’s] team.” 78
[82] It was not put to Ms LW that her evidence should not be accepted because she had previously included in her complaint against Mr W allegations against the Applicant or that she had encouraged others to make complaints about the Applicant. It was not put to Ms LW that she had made earlier false complaints or encouraged others to make false complaints against the Applicant.
[83] The Applicant, in cross examination, called into question the accuracy of the records of his interviews. 79 However no examples of any inaccuracies in the records of interview were put to Ms W. Nor were any submissions made about this evidence.
[84] It was put that I should accept the Applicant’s denial that he made any admissions to Mr S because there was no documentary evidence to support Mr S’s evidence. Whilst I find it very surprising that no record was kept of this discussion and equally surprising that there was no action taken as a result of the admission, I am unable to accept that Mr S would make up his evidence.
[85] In general I found Mr A, Mr I, Mr S and Ms LW credible witnesses. While there was inconsistency in some of the evidence given by Mr I and Ms LW, much could be explained by the passage of time. I have no reason to doubt Mr A, Mr S, Mr I or Ms LW gave anything but truthful evidence.
[86] While I accept that the Applicant was unable, because he was not provided with dates of some of the alleged incidents, to provide what would have in effect been alibi evidence he called no other evidence to support his version of events. Relevantly the Applicant did not give evidence that he could not recall the incidents. In response to the significant allegations he denied the conduct.
[87] In circumstances where the allegations were supported by more than one witness I have concluded on the balance of probabilities that the conduct occurred. If I were to prefer the Applicant’s evidence I would need to conclude that the other witnesses were mistaken or lying. There is no basis for such a conclusion.
Allegation 1
[88] Even if I accepted that Mr I complained to the Applicant about his treatment of a seconded employee it is not possible to conclude on the evidence before the Commission that the Applicant organised for Mr I to be transferred out of his team. It is also not possible to conclude on the basis of the evidence before the Commission that the Applicant excluded Mr I from meetings in retaliation for making that complaint. Even if the Applicant was wrong in his assumption that Mr I was no longer part of his team, I am unable to find on the evidence before the Commission that the Applicant deliberately excluded Mr I from meetings or that he changed his conduct toward him because he made a complaint to the Applicant or his supervisor.
Allegation 2
[89] I find on the balance of probabilities that this incident did occur. I do not accept that each of the three witnesses were mistaken about what happened. This incident occurred before Mr I had raised his complaint with the Applicant about the seconded employee and before he was transferred from the Applicant’s team. Mr S spoke to the Applicant about the issue well before the investigation of Mr I’s complaint made in December 2011.
[90] While I am very surprised that Mr S cannot find any record of the interview with the Applicant about this incident I can see no reason why he would lie about such a matter. In addition Mr I and Ms LW gave evidence about this incident. Mr I was not cross examined about this evidence. It was not put to him that this allegation was made up. Ms LW was cross examined on this and her evidence was not shaken.
[91] Such conduct was a breach of the Respondent’s code of conduct.
Allegation 3
[92] There is no evidence to support the allegation that the Applicant engaged in this conduct repeatedly. I accept that the Applicant on more than one occasion directed Mr A not to look at his screen however there is insufficient evidence to establish that this was unreasonable or that he treated other employees differently. However I accept that the incident in which Mr A was directed to stand behind an imaginary line as described by Mr A occurred. I accept that the conduct distressed Mr A and because of their relative positions Mr A did not take the matter further and accepted the Applicant’s resolution of the incident. I accept that this conduct was a breach of the Respondent’s code of conduct. The Applicant did not treat Mr A with dignity and respect.
Allegation 4
[93] I find that the Applicant did give employees massages. There is no evidence to support a finding that this conduct was unwelcome. Further I am unable to conclude on the evidence that the Applicant did this without the employee’s consent. Physical contact between employees in the workplace is not prohibited. This conduct was not a breach of the equal opportunity policy or the code of conduct.
Allegation 5
[94] I find on the evidence that the Applicant did call the team members gay. It was submitted that without knowing the context in which the statements were made 80 it would not be possible to reach any findings about the seriousness of the matter. However I note that Mr I said that these comments were made “on the floor, during buzz meetings and at team dinners.”81
[95] There is no evidence that these remarks caused offense to the team members to whom the comments were directed. While Mr I said that the employees who were called gay complained to him, in the records of interviews with the employees, they did not in any way suggest they were offended. There is nothing in Mr I’s statement that suggested he was offended by the Applicant’s comments.
[96] However it is trite to say that comments which may not offend the person to whom they are directed, may offend others to whom they are not directed.
[97] There is no evidence that the comments constituted harassment of the employees as there is no evidence of offence, humiliation or intimidation.
[98] However the code of conduct requires employees to set an example to others. As a team leader the Applicant had a particular responsibility to lead by example. So much was recognised by the Applicant. 82 The Applicant should have been aware that such comments could cause offence and that because of his position employees may be reluctant to convey their concerns to him. The Applicant, while denying making the comments, accepted that making the comments would be a breach of the equal opportunity policy.83 I find that this conduct breached the code of conduct.
Allegation 6
[99] I find on the balance of probabilities that the Applicant did on occasion make comments about female staff members’ appearance. However again there is no evidence that these remarks caused offense to team members to whom the comments were directed. However both Ms LW and Mr I described these comments as inappropriate. 84
[100] The making of inappropriate comments about female staff members’ appearance is a breach of the code of conduct. I also accept that as a team leader, the Applicant had a leadership role and should have set an example to other team members and he failed to do so. The Applicant, while denying he made the comments, accepted that someone making the comments would breach the equal opportunity policy. 85
Allegation 7
[101] I find on the balance of probabilities that the Applicant did refer to other employees by their ethnic heritage. However again there is no evidence that these remarks caused offense to team members to whom the comments were directed. Again it is trite to say that comments that may not offend the person to whom they are directed may offend others.
[102] Again as a team leader the Applicant had an obligation to lead by example. Referring to employees by reference to their ethnic heritage is a breach of the code of conduct. Again while denying the allegation the Applicant accepted that making such comments in a derogatory way would breach the equal opportunity policy. 86
Allegation 8
[103] I find that Ms LW did raise with the Applicant her concerns about Mr T’s conduct. I accept that she told Mr I about these events at the time they occurred. Ms LW’s evidence in this matter is consistent with her earlier complaint. I find that the Applicant did not respond appropriately to the matters raised by Ms LW. In doing so, the Applicant breached the equal opportunity policy.
[104] I also accept that Ms LW complained to the Applicant about the seating arrangements and that Mr I spoke to the Applicant about the seating arrangements. However I am unable to accept that the Applicant did nothing about this. In Ms LW’s original complaint she said that Mr T was moved albeit not far away from her as a result of her complaint. 87 While this was not a satisfactory outcome as far as Ms LW was concerned, I am not able to conclude that the Applicant did nothing. As Ms LW did not address her complaint about being photographed by Mr T with the Applicant, it cannot be said he did not respond to the new complaint.
Dishonesty
[105] As I have accepted the evidence of Mr S I conclude that the Applicant did not give a frank response to the investigator in relation to allegation 2. However I am unable to conclude that he was being dishonest. Given the period of time, I accept that the Applicant could not recall this incident.
[106] While the Applicant was defensive in his responses during the investigation this is not surprising as the Applicant was confronted with a series of general allegations spanning a significant period of time. Further some aspects of the complaint had been subject to earlier investigations.
[107] The Applicant reasonably sought further particulars of these complaints and while some were given he was not provided with dates of many of the incidents. While I do not criticise the Respondent for failing to provide these dates, as that information was not available, I accept that the Applicant was denied the opportunity check his whereabouts when the alleged incidents occurred. The lack of particularity caused the Applicant to deny the allegations.
Was the termination of employment harsh, unjust or unreasonable?
[108] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the following:
s387(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);
[109] As the allegations go to the Applicant’s conduct it is necessary for the Commission to determine for itself if the conduct provides a valid reason for the termination of the Applicant’s employment.
[110] It was submitted by the Respondent that the conduct of the Applicant was in breach of a number of the Respondent’s policies, namely the Equal Opportunity, Bullying and Harassment Policy and the Code of Conduct 88 and these breaches provide a valid reason for the termination of the Applicant’s employment.
[111] I have not found that allegation 1 was substantiated. This allegation was part of Mr I’s general complaint that the Applicant engaged in bullying and inappropriate behaviour towards Mr I. However I have found that other allegations were substantiated. I have found that some of the conduct complained of breached the Respondent’s equal opportunity policy or code of conduct.
[112] The question is whether the substantiated conduct, when considered as a whole, provides a valid reason for the termination of the Applicant’s employment. A valid reason is sound, defensible and well founded.
[113] It is accepted that a series of incidents which by themselves would not constitute a valid reason for the termination of employment may collectively provide a valid reason for the termination of employment. It is also accepted that breaches of company policy depending of the seriousness of the breaches can constitute a valid reason for the termination of employment.
[114] The Applicant was a team leader and had the responsibility to lead by example. He failed to do so by engaging in inappropriate conduct in the workplace. The Applicant accepted that such conduct was not consistent with his obligations under both the equal opportunity policy and the code of conduct. While the Applicant denied the conduct I have found that the Applicant breached the policies on more than one occasion. The fact that these breaches occurred over a considerable period of time does not mean that there was not a valid reason for the termination of the Applicant’s employment.
s387(b) whether the Applicant was notified of that reason;
[115] On 27 January 2012 the Applicant was advised that a complaint against him had been made by Mr I and that the complaint would be investigated. 89 On 9 March 2012 the Applicant was invited to a meeting to be interviewed about the allegations.90 On 13 March 2012 the Applicant was interviewed and he was informed about the allegations and asked to respond.91 He was re-interviewed on 10 April 2012.92 On 31 May 2012 the Applicant was advised at a meeting of the findings of the investigation. On 1 June 2012 the Respondent notified the Applicant of the outcome of the investigation in writing and invited him to a disciplinary meeting and he was advised that a possible outcome was that his employment could be terminated.93 That meeting occurred on 28 June 2012 and the Applicant was given an opportunity to respond to the allegations. No decision about the outcome of the disciplinary process had been made at this time.94 After an hour and a half’s discussion the meeting was adjourned and a further meeting took place on 6 July 2012. As a consequence of those meetings the decision was taken to terminate the Applicant’s employment and he was advised on 12 July 2012 of that decision.
[116] I find therefore that the Applicant was notified of the reasons for the termination prior to the decision being made to terminate his employment.
s387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[117] The Applicant submitted that some of the allegations were not able to be responded to because they lacked particularity. 95 In fact the Applicant did respond to the allegations in that he denied that he had engaged in the conduct. However I accept that the Applicant was prevented because of the lack of specificity from providing an “alibi” for the allegations. However the Applicant was provided with ample opportunity to respond to the findings of the investigation and the reasons for the termination.
s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;
[118] The Applicant was not denied a support person and had a support person with him.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether the Applicant had been warned about that unsatisfactory performance before the dismissal;
[119] The Applicant’s employment was not terminated for unsatisfactory performance.
s387(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;
[120] The Respondent is a larger employer. No submissions were made by either the Applicant or the Respondent that any weight should be given to this criteria.
s387(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;
[121] No submissions were made by either the Applicant or the Respondent that any weight should be given to this criteria.
s387(h) any other matters that FWA considers relevant.
[122] The Applicant submitted that I should have regard to the fact that the Respondent was aware of some of these allegations earlier and had taken no disciplinary action against the Applicant.
[123] The evidence established that the Respondent knew that there were behavioural issues with this team since 2009.
[124] Complaints had been made against the Applicant and his manager in 2009 and 2010 but the Applicant was not counselled about his conduct. No action was taken by Mr S about allegation 2.
[125] There is no evidence that when faced with serious behavioural issues that the Respondent took any steps to train staff about what was expected of them in the workplace.
[126] The evidence established that the Applicant’s manager, as a result of the investigation into Mr I’s conduct, was found to have used offensive language as greetings in the workplace and engaged in inappropriate conduct towards Mr I. 96 Another team leader was found to have used racially discriminatory language and conduct towards Indian employees.97
[127] Mr W had regard to the Applicant’s lack of contrition about his behaviour. 98 It was his evidence that the other two staff members who were found to have breached the equal opportunity policy and code of conduct in part acknowledged their conduct and apologised for it and undertook to modify their behaviour in the future. The failure of the Applicant to do likewise sealed his fate.99
[128] I am particularly concerned about the failure of the Respondent to have taken action earlier. Had the Respondent addressed these issues earlier, the Applicant would have been given clear guidance about what is and is not acceptable behaviour in the workplace. Had the Applicant then persisted with the conduct then he would have had no excuses.
[129] Some of the conduct complained of namely ethnic name calling, remarks about women’s appearance and comments about peoples sexuality are unfortunately still apart of many workplaces. When such behaviour goes unremarked upon and unchecked for a significant period of time it is not surprising that employees fail to recognise that their conduct is unacceptable.
[130] It is also very concerning that the Respondent knew of the allegation that the Applicant had ripped up an employee’s annual leave application and did nothing about it. On its own evidence the Applicant admitted the conduct albeit said it was a joke. Despite this admission the Applicant was not counselled or retrained.
[131] The Respondent submitted the concept of waiver only applies in cases of summary dismissal 100 and therefore it was able to rely upon allegations 2 and 8. However my concern is that the Respondent, by taking no action earlier, had failed to educate the Applicant in a practical way, about his obligations under the policies. Its failure to intervene earlier contributed to the failure of the Applicant to understand what acceptable workplace behaviour was.
[132] It cannot be said that Respondent had made it clear that this conduct was not acceptable. 101
[133] However I do consider it relevant that the Applicant had no insight into his unacceptable behaviour. The Applicant held a position of responsibility.
[134] The Applicant submitted that the termination was a disproportionate response to the conduct. It was submitted that he had worked for the Respondent since 2006. It was submitted that there was other disciplinary action the Respondent could have taken. 102
Conclusion
[135] In Byrne & Anor v Australian Airlines, the High Court, when considering whether a termination is harsh unjust or unreasonable said:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 103
[136] In this case the termination was not unjust as I have found that the Applicant breached over a number of years the Respondent’s policies. It was not an unreasonable decision in circumstances where the Applicant did not acknowledge any inappropriate conduct and resiled from previously admitted conduct. The only question to be decided was whether termination was harsh because the Respondent had been aware of the behaviour and taken no action to counsel, advise or retrain the Applicant over a significant period of time and where the Applicant’s direct manager himself did not lead by example.
[137] Had the Applicant had any insight into the inappropriate nature of his conduct, I would have considered the Respondent’s decision to terminate him in circumstances where it had not intervened earlier to remedy the inappropriate workplace behaviours, harsh. However having regard to the range of conduct and the Applicant’s lack of insight, I have decided that the decision to terminate the Applicant’s employment was not harsh.
[138] For the reasons set out above the termination of the Applicant’s employment was not harsh, unjust or unreasonable and the application is dismissed.
DEPUTY PRESIDENT
Appearances:
A Duffy for the Applicant.
M Felman for the Respondent.
Hearing details:
2012.
Melbourne:
November 13, 14.
2013.
Melbourne:
February 21.
March 27.
1 Exhibit A1 at [1]-[5]
2 Exhibit R6 at [7]
3 Ibid at [10.2]-[10.3]
4 Ibid at [13]
5 Transcript PN 1644
6 Ibid PN 1648
7 Ibid
8 Ibid PN 1649
9 Ibid PN 1653
10 Exhibit R6 at [23]-[24]
11 Ibid
12 Transcript PN 892-894 and PN 995
13 Exhibit A1 at [30]
14 Transcript PN 940
15 See Exhibit R11 at KW12, KW13 and Exhibit R10 at AW10
16 Transcript PN 2162-2163
17 Ibid PN 2164-2167
18 Exhibit R6 at [26]-[28]
19 Ibid
20 Ibid at [31]
21 Exhibit R8 at [25]-[26]
22 Exhibit R7 at [6]-[9]
23 Ibid at [13]
24 Exhibit A1 at [31] and Exhibit R11 at KW12 and KW13, Transcript PN 629-648
25 Exhibit R9 at [10]-[12]
26 Ibid at [13]
27 Ibid
28 Exhibit R6 at [54]
29 Exhibit R9 at SA2
30 Ibid
31 Ibid
32 Ibid at [15]
33 Ibid at SA3
34 Transcript PN 1914
35 Exhibit R11 at KW12
36 Transcript PN 823
37 Exhibit R8 at [29]-[31]
38 Exhibit R6 at [44]-[46]
39 Exhibit R9 at [20]-[22]
40 Exhibit A1 at [35]
41 Transcript PN 496-499
42 Exhibit R11 at KW12
43 Exhibit R11 at [14.8]
44 Exhibit R12 and Exhibit R13
45 Exhibit R12
46 Exhibit R13
47 Exhibit R11 at KW12
48 Exhibit A1 at [36] and Transcript PN 1348
49 Exhibit R6 at [47]
50 Exhibit R8 at [32]
51 Exhibit R6 at [48]-[49]
52 Exhibit A1 at [37] , Exhibit R11 at KW12 and Transcript PN 1130
53 Exhibit R8 at [34]-[35]
54 Exhibit R6 at [50]-[53]
55 Exhibit A1 at [38]
56 Ibid at [39]
57 Exhibit R12
58 Exhibit R8 at [6]-[7]
59 Ibid at [8]
60 Ibid at [9]
61 Ibid at [10]-[11]
62 Ibid at [12]
63 Ibid at [13]-[14]
64 Ibid at [15]
65 Ibid at [35]-[36]
66 Ibid at [37]-[38]
67 Ibid at [39]-[40]
68 Ibid
69 Exhibit A3
70 Exhibit A1 at [40] and Exhibit R11 at KW12
71 Exhibit A4
72 Exhibit A4 at [3]
73 Exhibit R7 at [9]
74 Exhibit R10 at [52]
75 Ibid
76 Exhibit A1 at [43]
77 Transcript PN 2300
78 Ibid PN 2116
79 Ibid PN 538-559
80 Transcript PN 238
81 Exhibit R6 at [47]
82 Transcript PN 192, 194
83 Ibid PN 1411
84 Exhibit R6 at [48] and Exhibit R8 at [32]-[33]
85 Transcript PN 1176
86 Ibid PN 1288-1289
87 Exhibit A3
88 Exhibit R14 at [84]
89 Exhibit R11 at [17]
90 Ibid at [24]
91 Ibid at [25]
92 Ibid at [33]
93 Ibid at KW15
94 Exhibit R10 at [32]
95 Transcript PN 2380-2382
96 Exhibit R10 at AW13
97 Ibid at AW14
98 Ibid at [61]
99 Ibid
100 See Illesca v Department of Human Services [2012] FWA 2267 and Exhibit R14 at [81]-[83]
101 See Micallef v Holden Ltd PR900664 at [11]
102 Transcript PN 2389
103 (1995) 185 CLR 411 at 465 per McHugh and Gummow JJ
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