Mr Alphonse Kaskol v TNT Australia Pty Limited T/A TNT

[2015] FWC 705

[2015] FWC 705

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Alphonse Kaskol
v
TNT Australia Pty Limited T/A TNT
(U2013/15401)

DEPUTY PRESIDENT ASBURY BRISBANE, 30 JANUARY 2015

Application for relief from unfair dismissal.

Overview

[1] In an ex tempore decision I dismissed an application by Alphonse Kaskol for order an under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, with respect to his dismissal by TNT Australia Pty Limited t/a TNT Express. I gave reasons for doing so at the time and indicated to the parties that full reasons for dismissing the application would be provided in writing in due course. Those reasons are as follows.

[2] Mr Kaskol was employed as a casual dockhand from 9 July 2007 until 14 October 2013 at TNT’s Brisbane South Depot. Mr Kaskol was dismissed on 14 October 2013 on the grounds of serious misconduct. Essentially, that misconduct was said to involve the making of unsubstantiated, derogatory and potentially defamatory statements about TNT managers and employees and continued failure to follow lawful and reasonable directions in relation to the reporting of hazards in the workplace, despite being warned about conduct of this nature.

[3] Mr Kaskol asserts that his dismissal was unfair and that the reason for his dismissal was that he was exercising some of the powers and performing functions of a Health and Safety Representative (HSR) under the Workplace Health and Safety Act 2011. Mr Kaskol further asserts that he was dismissed for upholding the TNT Model Workplace Health and Safety Committee Constitution that was given to him in February 2013 when he was elected as a HSR. Essentially Mr Kaskol contends that he was not acting in the capacity of “ordinary worker” and at all times was acting as a HSR. Further, Mr Kaskol contends that he continues to hold this role notwithstanding his dismissal. Mr Kaskol also asserts that had he known that he was not empowered to act as he did on the basis of his status as a HSR, he would not have done so.

[4] Mr Kaskol gave evidence on his own behalf. Evidence on behalf of TNT was given by:

● Chris Zichy-Woinarski, General Manager Occupational Health and Safety; 1
● Shane Plant, Cluster Manager Melbourne and Brisbane HUB Manager from 31 July 2008 until 1 September 2013; 2
● Dean Bright, Service Centre Manager, Brisbane South Salisbury Depot; 3
● Peter Gutsche, Regional Director Northern of TNT Australia Pty Ltd; 4

Evidence

[5] There was evidence of Mr Kaskol having been warned about his conduct and in particular his practice of sending emails containing serious allegations that had no substance and making offensive statements about managers and fellow employees of TNT. The straw that broke the camel’s back with respect to Mr Kaskol’s dismissal concerned his conduct in relation to the Occupational Health and Safety Committee which has operated at the Brisbane South Depot since 2008, when TNT became self insured with Comcare for the purposes of workers compensation. In this regard, TNT is licensed pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth).

[6] The OHS Committee at the Brisbane South Depot is one of a number of such committees established by TNT in its various establishments. The Company has a model constitution for such Committees which can be adapted to suit particular locations and circumstances. The Model Constitution provides for the election of Health and Safety Representatives (HSRs) and Deputy Health and Safety Representatives from designated work groups, comprising workers who perform a similar function and/or work a similar span of hours. The Constitution also provides for worker representatives.

[7] According to Mr Zichy-Woinarki’s evidence, the South Brisbane Depot OHS Committee has had a convention since 2008, whereby elected HSRs from each designated work group become automatic members of the OHS Committee and Deputy HSRs perform the function of worker representatives, when they are not filling in for HSRs. The purpose of this arrangement is to maintain a level of consistent representation of the relevant work group while reducing the time that the Committee would have to spend to bring Deputy HSRs up to speed in the event that they are required to attend meetings in the absence of the HSR.

[8] In February 2013, Mr Kaskol was elected as a Deputy Health and Safety Representative by the members of his Designated Work Group. Upon his election to this position, Mr Kaskol was given a copy of the model constitution for TNT WHS Committees. Essentially Mr Kaskol formed the view that the OHS Committee at the South Brisbane Depot was operating inconsistently with the model constitution because of the practice of having Deputy HSR’s perform the function of worker representatives. In Mr Kaskol’s view Deputy HSRs could only participate in meetings of the Committee when HSRs were absent, and the practice of Deputy HSRs acting as worker representatives resulted in workers not having representation on the Committee. Mr Kaskol embarked on a campaign to point these issues out to his colleagues and management of TNT. Prior to Mr Kaskol raising this issue there had been no concerns raised by any member of the OHS Committee in relation to this convention.

[9] According to the evidence of Mr Zichy-Woinarski, Mr Kaskol’s concerns were first raised at a meeting of the OHS Committee on 18 February 2013. At that meeting Mr Kaskol stated that:

● The OHS Committee Constitution needed to be reviewed;
● He wanted a separate safety meeting with the Work Group that he represented independent of the OHS Committee meeting; and
● TNT risk assessment process and tools were incorrect.

[10] In response to these issues Mr Kaskol was advised that there was time allocated for him to discuss issues with his work group after the regular tool box or staff briefings; the Constitution of the Committee would be reviewed and the risk assessment tool in place across the business is valid and a recognised tool. Following the conclusion of this meeting, Mr Kaskol prepared and distributed to his work group, two communications declaring his views on what he considered to be fundamental flaws with the Brisbane South Depot OHS Committee. These communications alleged inter alia that there were critical deficiencies in the WHS at the TNT South Brisbane Depot and that an acute lack of consultation and proper worker/regime is rampant. It was also asserted that the OHS Committee was unconstitutional and was not meeting TNT standards. 5

[11] An extraordinary meeting of the OHS Committee was held on 12 June and the OHS Committee Constitution was redrafted. According to Mr Bright’s evidence, Mr Kaskol was present at a meeting where a detailed discussion about the proposed amendments to the constitution took place and played an active part in the discussion.

[12] The proposed amendments to the constitution included a provision that allowed designated work groups to decide whether they wanted their Deputy HSR to also act in the capacity of worker representative. Mr Kaskol insisted that the Deputy HSR could not also fill the role of worker member of the Committee and it was resolved to put the issue of whether Mr Kaskol’s work group wanted their Deputy HSR to also act in the capacity of worker representative. That group subsequently voted against the proposal.

[13] There is no evidence to suggest that the views of Mr Kaskol’s work group were not respected, or that he was forced to act in the capacity of both Deputy HSR and worker representative, contrary to his or their wishes. What was proposed was that the Constitution be amended so that work groups and their representatives who were Deputy HSRs could choose to also act in the capacity of worker representative of the Committee.

[14] The amended constitution was placed on company notice boards for a 26 day period. At a meeting of the OHS Committee for the purpose of deciding whether to adopt the Constitution, Mr Kaskol stated that his work group did not understand the amendments and a further week was allowed for consideration. At a subsequent meeting Mr Kaskol stated that the constitution was corrupt and that he would be taking the matter to court. All Committee members other than Mr Kaskol adopted the amended constitution on 30 July 2013 by signing it. On 1 September 2013 the TNT Standard Site WHS Constitution was amended.

[15] Mr Kaskol continued to agitate his issues with respect to the Constitution and published a further newsletter on 9 September 2013 asserting that the “Draft Constitution” had failed. Mr Bright met with Mr Kaskol on 10 September to discuss his issues. According to Mr Bright, during this discussion, Mr Kaskol spoke in a raised voice and pointed his finger and when Mr Bright asked him to stop pointing, stated that Mr Bright was racist. Mr Bright told Mr Kaskol that it was his right not to sign the Constitution but that it had been approved by all other Committee members and was now in place. Mr Kaskol maintained that the Constitution was corrupt.

[16] On 30 September 2013 Mr Kaskol sent an email to Mr Curtis Berry, TNT’s Director of Operations and Workplace Risk, alleging corruption on the part of “certain factions” of TNT management with respect to the OHS Committee constitution. Mr Kaskol also asserted that there was bullying and harassment of workers in relation to workplace health and safety and that he was pressured to sign the “questionable Depot WHS Constitution”.

[17] The evidence of Mr Bright, Mr Gutsche and Mr Zichy-Woinarski was that the allegations made by Mr Kaskol were investigated and it was determined that changes had been made to the OHS Committee Constitution to accommodate concerns raised by Mr Kaskol; there had been full consultation in relation to those changes; the Constitution had been voted on and adopted by the Committee; and is compliant with relevant legislation. Mr Kaskol was interviewed by Mr Brida, TNT’s Regional Security Manager, in the presence of TNT’s Security Co-ordinator and Mr Kaskol’s Union representative. According to the notes of the meeting conducted by Mr Brida, which were appended to Mr Gutsche’s statement, 6 Mr Kaskol refused a request from TNT representatives that the meeting be tape recorded. Mr Kaskol declined to provide information about his allegations of bullying and said that he did not wish to focus on those allegations. Mr Kaskol continued to press his allegations about irregularities in the WHS Committee Constitution and said that his reference to corruption was in relation to a deviation from the law and not to people.

[18] Mr Kaskol’s witness statement in these proceedings was broken into two parts, respectively headed “Alphonse Kaskol Health and Safety Representative (HSR)” and “Alphonse Kaskol Ordinary Worker”. In relation to his role as a HSR, Mr Kaskol asserts that:

● He was dismissed for exercising powers of a HSR under the Workplace Health and Safety Act;
● In using the term “corruption” he had intended to convey the meaning of “deviation from the ideal” with the ideal being the minimum requirements of the TNT Model Constitution for OHS Committees;
● Deviation from the model and covering up failures is unethical and corrupt and this is what occurred when the site Constitution was revised and redrafted;
● The main issue is the validity of the Constitution and the reliance by TNT on Mr Kaskol’s use of the term “corruption” is a side show to get him dismissed;
● There is a discrepancy between the date on the bottom of the redrafted constitution and the date it actually came into existence and was signed by the other members of the Committee and Mr Kaskol questions whether this constitutes dishonesty and fraud on their part.

[19] In his capacity as a HSR, Mr Kaskol maintained that he could not be subject to disciplinary processes as an ordinary worker and needed to be dealt with using the provisions in the workplace health and safety legislation. In his capacity as an ordinary worker, Mr Kaskol said that his dismissal was unfair on the basis that the “strike three” warning could not be issued before he was removed as a HSR. In this regard Mr Kaskol said in relation to the email he sent that “it would take a very deranged person knowing that he has no life left to attempt what I did” and that he was confident that he was covered under the workplace health and safety laws as a HSR, and that his conduct in agitating his issues with the Constitution was protected.

[20] Mr Kaskol maintained that he continues to hold the position of HSR after the termination of his employment on the basis that he has not been removed by a Court or the workers who elected him. Mr Kaskol said in his evidence that he was given a package of documents upon being elected as a Deputy HSR, which included a document that was the TNT Model Constitution.

[21] Under cross-examination, Mr Kaskol was shown a copy of a document entitled “Salisbury OH&S Committee Constitution” issued on 4 September 2009. Mr Kaskol maintained that he had never been shown or provided with that document previously, and that all of his issues with the Constitution of the OHS Committee related to compliance with the model document that he was provided with on being elected as a Deputy HSR. Mr Kaskol agreed that the Constitution issued on 4 September 2009 did not materially differ from the Model Constitution he was given and with which he took issue.

[22] Mr Kaskol agreed that when he raised concerns about the Constitution of the OHS Committee at Salisbury, in or around May 2013, the Constitution was redrafted in line with those concerns. Mr Kaskol maintained that the first version of the redrafted Constitution shown to him at a meeting of 23 July 2013 had a footer that was dated 30 October 2012, and that he had refused to sign that document on the basis that to do so would have been an acknowledgement that the document was in existence before it was signed. In response to the proposition that the date on the footer was amended to 30 July 2013, and that it was signed on that date by other members of the Committee at a meeting that he attended, Mr Kaskol said that he might have seen the document on that date but did not see the other members sign it.

[23] Mr Kaskol agreed with the proposition that if a Depot deviated from the Model Constitution then neither the members of the Committee or TNT would be breaking the law or committing a criminal offence. Mr Kaskol also agreed that if he was concerned about worker representation on the Committee he could have facilitated or encouraged workers in the group he was representing to nominate for roles on the Committee or nominated himself as a worker representative. Mr Kaskol agreed that there was nothing wrong with TNT inviting him to attend Committee meetings in his capacity as a Deputy HSR on the basis that he had an interest in occupational health and safety. Further, Mr Kaskol agreed that there was nothing unlawful about the convention that had operated in relation to the role of Deputy HSRs on the Salisbury Committee and that the Model Constitution did not preclude this. However, Mr Kaskol maintained that this convention was not in accordance with the Model Constitution.

[24] In response to the proposition that the majority of members of the Committee had voted on an amendment to the Constitution which allowed work groups to choose whether the Deputy HSR should also act as the Worker Representative on the Committee, Mr Kaskol said that he was putting his views forward. Mr Kaskol agreed that:

● He had no reason to disbelieve that the proposed amendments to the Salisbury Constitution were place on notice boards some five weeks prior to being voted on by the Committee;
● The HSR for his work group had informed him that he would vote for the changes and had received confirmation from Comcare that there was no issue with them;
● He had attended a meeting where Mr Plant went through the proposed amendments to the Constitution point by point;
● He asked for and was granted a further period to discuss the proposed amendments with his work group;
● His workgroup had no issues with the amendments; and
● He was informed that the date on the footer of the document would be changed before the meeting at which the Committee would vote on whether to approve it.

[25] In relation to other conduct relevant to Mr Kaskol’s dismissal, Mr Plant’s evidence was that in July 2009 Mr Kaskol received training in appropriate mechanisms for raising occupational health and safety issues at TNT. Notwithstanding that training, Mr Kaskol sent a number of emails and memos to various managers of TNT purporting to raise his concerns and express his views about safety issues. Mr Plant gave evidence of a range of comments made by Mr Kaskol in those communications including that TNT’s General Counsel must have obtained his law degree from a cereal box; that a senior OH&S Advisor should get off his backside and start to work for his money; and that Mr Plant was not genuine about health and safety. On occasion these emails were sent to Directors of TNT, contrary to the established mechanisms for raising such concerns.

[26] Mr Plant also said that Mr Kaskol’s emails contained a large amount of immaterial content and it was necessary to wade through this to determine whether there was a material safety issue being raised by Mr Kaskol. Mr Plant gave evidence of a number of meetings with Mr Kaskol in August and December 2009 and of correspondence to him in November 2009 in relation to his failure to follow TNT Hazard Reporting Procedures. In a letter of 29 December 2009 Mr Kaskol was directed by Mr Plant to follow those procedures instead of emailing concerns to various managers of TNT. That letter concluded as follows:

“Should at any time you identify a safety concern or hazard in the workplace please do not refrain from immediately reporting it so it can be reviewed and action taken if required. The company only requires that your report it appropriately through the process that you have had toolboxed and explained to you.”  7

[27] In May 2012 Mr Kaskol breached this direction and failed to complete hazard reports for an allegation made by him that “two workers had nearly had their eyes gouged out”. Mr Kaskol was issued with a further letter again directing him to use TNT’s hazard reporting system rather than sending emails to Mr Plant or other managers. That letter concluded by informing Mr Kaskol that by continuing to send emails and failing to use the hazard reporting system he was in breach of a lawful and reasonable direction, future breaches of which would be treated as a disciplinary matter. When Mr Kaskol was handed the letter he stated that he did not have his glasses with him and would read it over the weekend. Mr Plant was concerned that Mr Kaskol would not read the letter and directed him to attend a meeting where the letter was read aloud to Mr Kaskol.

[28] In August 2012 Mr Kaskol completed numerous hazard reports, but it was necessary to issue him with a warning in September 2012, because when questioned about those reports Mr Kaskol behaved in an aggressive manner and made derogatory comments about TNT Managers. The letter warned Mr Kaskol that continuation of his conduct in making such comments may result in further disciplinary action up to and including termination of his employment.

[29] Mr Plant said that Mr Kaskol’s communications were accommodated and tolerated for a period of time on the basis of the belief that TNT should not ignore a genuine safety concern. It was also the view of management that Mr Kaskol had a genuine passion for safety and if TNT could work with him and direct that passion in a positive way, and if he could improve his communication, there could be some positive safety outcomes. Notwithstanding these views, Mr Plant also had a number of staff discuss with him their concerns about Mr Kaskol’s attacks on their professionalism, ability and integrity.

[30] Mr Gutsche’s evidence was that in May 2011, Mr Kaskol made a complaint alleging physical harassment by another employee. This complaint was investigated, including through a review of CCTV footage and witness accounts, and when it was not substantiated, Mr Kaskol disputed the findings and alleged that it was influenced by racism. Mr Kaskol also demanded that other employees involved in the alleged incident be dismissed. A further review of the investigation and findings was conducted by TNT’s Human Resources Manager. Mr Kaskol was told that allegations of racism and nepotism were taken seriously by TNT and that his allegations were not supported by any evidence. Mr Kaskol was placed on notice that the TNT Grievance procedure should not be abused.

[31] Mr Kaskol did not accept this outcome and sought to pursue his complaints with TNT’s Director Global Investigations in Amsterdam. A further review was conducted by TNT’s Director of Human Resources Australia into the original investigation and the review. Mr Kaskol was informed that the Director Human Resources Australia had reviewed the actual CCTV footage of the incident he had complained of and found that the conduct of the other employee involved did not constitute assault or physical harassment. Mr Kaskol was informed that the other employee had been disciplined about actions that were found to be inappropriate. Mr Kaskol’s claims of racism and nepotism were again rejected and he was informed that continuing to make derogatory and potentially defamatory comments about managers and employee of TNT would be viewed as misconduct, as would the making of false and vexatious complaints.

[32] In November 2012 Mr Kaskol sent a memo to Mr Gutsche alleging that he had been bullied and victimised for raising OH&S issues. In doing so, Mr Kaskol bypassed Depot Health and Safety Representatives and again failed to follow TNT’s hazard reporting procedures, in breach of a direction provided to Mr Kaskol on at least three previous occasions. The memo, appended to Mr Kaskol’s statement alleges a range of matters including that Mr Kaskol has been verbally and physically attacked for raising a safety issue in relation to a walk way; a risk assessment in relation to that walk way is blatant deceit, trickery and lies; and that a manager who allegedly made a racist comment to Mr Kaskol had a “gutter attitude” and did not deserve to be a manager.

[33] Mr Kaskol attended a meeting with TNT’s head of security in Queensland in relation to the matters raised in his report, accompanied by his Union representative, and was not prepared to provide a further statement. Mr Gutsche said that the allegations were investigated and Mr Kaskol’s version of events was not substantiated. It was further alleged that Mr Kaskol had taken it upon himself to confront a female staff member on 8, 9 and 14 November, to attempt to stop her from walking through the Depot on a walkway.

[34] In relation to this issue, Mr Zichy-Woinarski said that a risk assessment was undertaken on the walkway and this identified that it was best suited for the movement of workers between various parts of the business. It was also identified that an alternative suggestion advanced by Mr Kaskol would have posed risks to workers associated with vehicle travel. Mr Zichy-Woinarski also gave evidence about various comments Mr Kaskol made in his communications about this issue which were said to be false and offensive. These comments included assertions that managers, the OHS Advisor and HSRs had no clue about safety and that the Senior OHS Advisor should: “start doing his work. Earning his money. Start providing advice and guidance that will improve OHS culture.”

[35] As a result of these matters, Mr Kaskol was issued with a final warning by letter dated 22 November 2012 and concluding with the following statement:

“You have a right to raise legitimate OH&S incidents with the depot Health and Safety Representatives using the reporting process, which you are well aware of. However, you are not at liberty to ignore directions from your managers, make false claims, fail to follow correct procedures and denigrate TNT managers and other employees through making derogatory statements.

Having regard to the previous warnings you have been issued, I am now providing you with a Final Warning. If you engage in any similar conduct at any time in the future, your employment will be terminated.” 8

[36] After being issued with the final warning, Mr Kaskol made a complaint to Comcare, requesting an inspection in relation to a designated walkway and alleging that he had been bullied and harassed. In January 2013, a Comcare Inspector issued a report concluding that Mr Kaskol had no authority to directly request the involvement of Comcare and that he should follow policy and raise hazards with his Health and Safety Representative. The report also concluded that there were no grounds to substantiate claims of workplace bullying. 9

[37] In October 2013 Mr Brida conducted an investigation interview with Mr Kaskol. Mr Gutsche reviewed Mr Brida’s report and all material (including an investigation by Comcare into further claims by Mr Kaskol of bullying which found those claims to be unsubstantiated) and determined that Mr Kaskol should be directed to attend a show cause meeting as to why his employment should not be terminated. A letter was sent to Mr Kaskol on 9 October 2013 setting out allegations made by Mr Kaskol in the email to Mr Berry in relation to corruption and other serious matters, and requiring Mr Kaskol to substantiate those allegations by 10 October 2013. The letter concluded by informing Mr Kaskol that if he was unable to do so, he would be required to attend a meeting at 4.00 pm on 11 October 2013 and that it was Mr Gutsche’s preliminary view that if the allegations were not substantiated, Mr Kaskol’s employment would be terminated.

[38] Mr Kaskol did not respond to the letter within the time required and did not attend the meeting on 11 October. Mr Kaskol’s Union responded on his behalf by email sent at 3.58 pm on 11 October advising that he had reported the matter to Comcare and requesting that Mr Kaskol’s response and any meeting be delayed pending a Comcare investigation. This request was declined but the date for the meeting was extended to 14 October 2013.

[39] On that date a meeting was held between Mr Gutsche and Mr Bright on behalf of TNT and Mr Kaskol and his Union representative. Mr Gutsche’s evidence was that Mr Kaskol confirmed that he had not provided a written response to the show cause letter and was given an opportunity to respond verbally. Mr Kaskol repeated his previous comments about the site OHS Committee and said that there were “cover-ups” by management but not bribes or fraudulent activity. Mr Gutsche also put to Mr Kaskol that the changes to the constitution were based on matters Mr Kaskol had raised and he had been consulted about those changes. Further Mr Gutsche told Mr Kaskol that on the basis that he had failed to substantiate his allegations of corruption and bullying, those allegations were viewed as being unsubstantiated and frivolous.

[40] Mr Kaskol’s response was to reiterate his assertions that the Company had deviated away from the model constitution and that the document showed date errors. Mr Gutsche adjourned the meeting for a twenty minute period, considered Mr Kaskol’s response and decided to terminate his employment on the basis that he had provided no proof of his allegations and had been warned clearly that he should refrain from making false allegations. Mr Kaskol was informed that his employment was terminated with immediate effect. Mr Kaskol stated that he thought that he had immunity under the Workplace Health and Safety Act.

[41] In response to Mr Kaskol’s evidence in these proceedings, Mr Gutsche said:

● TNT did not dismiss Mr Kaskol for exercising powers and performing functions of a HSR but rather because he had made repeated baseless and unsubstantiated allegations against TNT management and employees;
● In alleging corruption Mr Kaskol was inferring significantly inappropriate and unlawful behaviour by TNT management and employees;
● Mr Kaskol was not placed under duress to sign the WHS Committee Constitution and TNT did not require his signature to put the Constitution into effect; and
● Dates on the document signed by other members of the WHS Committee reflect dates when it was amended and are not evidence of fraud.

Conclusions

[42] In deciding whether a dismissal is harsh, unjust or unreasonable, the Commission must take into account procedural and substantive matters set out in s.387 of the Act as follows:

“387 Criteria for considering harshness etc.

(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 the dismissal; and

(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.”

Valid reason

[43] I have concluded that Mr Kaskol’s dismissal was not unfair. I accept that there was a valid reason for Mr Kaskol’s dismissal. I am satisfied that Mr Kaskol did make numerous and repeated, unsubstantiated and serious allegations against TNT and its employees, including allegations of corruption.

[44] From the outset, these allegations were totally misconceived. By continuing to make the allegations, despite reasonable attempts by TNT to address his concerns and explain why the allegations were misconceived, Mr Kaskol’s conduct was vexatious to the extent it was inconsistent with the continuation of his employment and destructive of the necessary relationship of trust and confidence between employer and employee that is essential to the employment relationship.

[45] I do not accept that Mr Kaskol was operating as a Health and Safety Representative when he engaged in the misconduct that led to his dismissal. I also do not accept that Mr Kaskol could have reasonably and genuinely believed that he was acting in this capacity. Even if I am wrong in reaching that conclusion, and Mr Kaskol genuinely believed that he was acting in that capacity, employees acting in statutory roles are not immune from complying with their obligations as employees. No employer should be required to continue the employment of an employee who makes false, spurious and vexatious claims against his or her colleagues and continues to press those claims when they are totally without substance, regardless of the fact that the employee purports to be acting in the capacity of a health and safety representative.

[46] Mr Kaskol’s conduct was repeated and continued in the face of clear warnings that he would be dismissed if he continued with it. Further, I am of the view that TNT was extremely tolerant of Mr Kaskol’s behaviour over a significant period of time and went above and beyond what would be expected of a reasonable employer to have Mr Kaskol rectify his behaviour.

Notified of reason, opportunity to respond and warning about unsatisfactory performance

[47] Mr Kaskol was notified of the reason for his dismissal. The allegations about Mr Kaskol’s behaviour that led to his dismissal were very clearly put to him in a show cause letter. Mr Kaskol was given a number of opportunities to respond to the reasons for his dismissal and to explain his conduct or provide evidence in support of the allegations he had made. Mr Kaskol did not avail himself of those opportunities.

[48] The evidence also clearly establishes that the Respondent undertook an extensive performance management process in relation to Mr Kaskol and his conduct.

Support person

[49] Mr Kaskol had a support person present in discussions relating to his dismissal.

Size of Respondent and human resources specialty

[50] I have taken into account the size of the Respondent’s enterprise and the specialist advisors available to the Respondent in human resources, industrial relations and occupational health and safety. Those matters are no relevant in the present case.

Other matters

[51] I accept that the dismissal has had a significant economic and personal impact on Mr Kaskol and that he has personal circumstances that have been adversely affected by the dismissal. However, in light of the repeated behaviour and the opportunities that Mr Kaskol was given to correct his behaviour, and the considerable forbearance that TNT demonstrated in its dealings with him, these are not matters that outweigh the other criteria in s. 387.

[52] Mr Kaskol’s dismissal was not unfair and for these reasons I dismissed his application.

DEPUTY PRESIDENT

Appearances:

Mr A. Kaskol on his own behalf.

Ms J. Hunt on behalf of TNT Australia Pty Limited

Hearing details:

2014.

Brisbane:

March 11; 12.

Final written submissions:

3 April 2014.7

 1   Witness Statement Exhibit 3.

 2   Witness Statement Exhibit 5.

 3   Witness Statement Exhibit 6.

 4   Witness Statement Exhibit 7.

 5   Exhibit 3 Annexure CZW11 and CZW12.

 6   Exhibit 7 Annexure PG5.

 7   Exhibit 5 Annexure SP4.

 8   Exhibit 7 Annexure PG4.

 9   Exhibit 3 Annexure CZW10.

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