Mr Andrew Masterson v Smitham Hotel Pty Ltd T/A Waterloo Bay Hotel
[2016] FWC 5915
•31 AUGUST 2016
[2016] FWC 5915
The attached document replaces the document previously issued with the above code on 31 August 2016.
The citation at 50 in the endnotes has been corrected.
Nahum Moreau
Associate to Commissioner Hunt
Dated 1 September 2016.
| [2016] FWC 5915 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Andrew Masterson
v
Smitham Hotel Pty Ltd T/A Waterloo Bay Hotel
(U2016/5224)
COMMISSIONER HUNT | BRISBANE, 31 AUGUST 2016 |
Application for relief from unfair dismissal – where verbally abusive conduct of a manager amounted to valid reason for dismissal – applicant’s failure to attend show cause meeting was unreasonable – respondent failure to accommodate request for support person unreasonable – despite procedural failings of the respondent dismissal was fair – application dismissed.
[1] Mr Andrew Masterson has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Smitham Hotel Pty Ltd T/A Waterloo Bay Hotel (Waterloo Bay Hotel). Waterloo Bay Hotel is an accommodation venue with a licensed restaurant, hotel and bottle shop attached.
[2] Mr Masterson commenced employment with Waterloo Bay Hotel on 3 August 2015 in the role of Assistant Manager.
[3] Mr Masterson was dismissed on 19 February 2016 for two alleged instances of aggressive and inappropriate behaviour towards co-workers. He had been in the role for a period of 6.5 months.
[4] At the hearing on 22 June 2016, Mr Masterson was self-represented. Waterloo Bay Hotel sought and was granted leave to be represented by Mr Alan Strain, Solicitor of Mullins Lawyers. Mr Masterson did not oppose leave being granted. 1
[5] Mr Masterson gave evidence on his own behalf. Evidence for Waterloo Bay Hotel was given by:
● Mr Justin Ham, Managing Director; and
● Ms Gabrielle Austin, Bartender.
Background and evidence
[6] On 6, 8 and 10 February 2016, Mr Ham received notification of complaints regarding Mr Masterson’s behaviour from three employees, Ms Sarah Clark, Ms Tracey Donnelly and Ms Austin. 2
[7] The first complaint was emailed to Mr Ham by Ms Clark on 6 February 2016 (First Complaint). The First Complaint was in the following terms:
‘On Thursday I worked the Restaurant I found Andy to be very angry and hard to work with. He kept coming down standing in the hallway and looking at me on the last time I told him I was the only one on and I couldn’t help him so he stormed off down the hallway. At 2pm Zoe knocked on to help me with set up with the function when he seen that I had someone else on he came down and said I need you in the bar now I said I could help for a bit but Zoe was there for set up of function he just ignored me and said I have a payout to do. I worked in the bar for around 15-20 mins [sic] then found him in the office and said I need to go back to the restaurant and setup he ignored me. He came down and took schooner glass I said as we have a function I will need them back his reply was not my problem service them plastic. In the mid of the function he took more schooners I said they are all drinking schooners down here he ignored me and said no [sic] his problem and told me to deal with it so I walked put and took the dirty one on the tray in the bar and had Emily yell Sarah but I kept walking. I also had other staff that informed me he was out the back throwing things around due to his behaviour I didn’t send anyone if [sic] my staff to help in the bar until he had left. 3’
[8] The second complaint was emailed to Mr Ham by Ms Donnelly, Motel Manager on 8 February 2016 (Second Complaint). The Second Complaint was in the following terms:
‘Dear Justin
As per our conversation on Thursday, please see details below:
On Thursday at 4.00pm I locked up Reception and went to open the Gaming Lounge Door. Just as I was about to open it Andy burst through it nearly knocking me flying – I expressed shock, he glared at me and walked briskly to my office. I handed the phone to Sarah saying I didn’t know what was wrong with Andy. When I got home I phoned Tania as it had unsettled me. The next day I said to Andy what was his problem as he had nearly knocked me over – he said he was just tired and walked away.
This has not been the first occasion I have witness to his aggressive behaviour. 4’
[9] The third complaint is a handwritten complaint by Ms Austin on 10 February 2016 (Third Complaint). The Third Complaint was in the following terms:
‘Asked me to gaming. He told me to stay in sports and “fuck her” when I said you asked me to.
Asked for the cash box and he said “get her to do some work the fat cunt”.
Asked to go for a smoke he said to get you – I asked if there was a turf war cause I don’t want to be a part of it he said “suck it up and pick a side princess”.’ 5
[10] On 10 February 2016, Mr Ham sent an email to Mr Masterson advising him that he was suspended with pay pending an investigation into the complaints. The email was in the following terms:
‘Hi andrew
Unfortunately i have to suspend you pending an investigation into recent events to which i have had complaints lodged to me.
Today and last Thursday are in question.
Iam[sic] in possession of writing[sic] statements.
This involves apprantely[sic] aggressive behaviours by you.
As a manager professional manners are required at all time.
The process is that you are suspended with pay until the investigation is finalized.
I will ask you to provide details from your prospective[sic] tomorrow please in writing back to me on this email.
You are not required to come into the hotel for shift or otherwise on the premise until it is confirmed by me that it is ok.
Your shifts have been covered as at now until the investigation is over.
Then i will review all of the information then call a meeting with you.
If found that your actions are as documented, termination of your employment may follow.
Please confirm receipt of this email and that you understand this situation.
Justin Ham
Managing Director
…’ 6
[11] Mr Masterson sent an email to Mr Ham requested a copy of the complaints. Mr Ham’s evidence is that a copy of the complaints was sent to Mr Masterson on 11 February 2016. 7
[12] Mr Ham’s evidence is that he discussed the matter in a conference call with Mr Masterson on 12 February 2016. Mr Ham stated that:
‘In particular, he [Mr Masterson] asserted that statements were false and there was some sort of conspiracy between his co-workers against him.’ 8
[13] On 13 February 2016, Mr Masterson sent an email to Mr Ham responding to the allegations. 9 I note that in this email, Mr Masterson only addressed the First Complaint in his response. Mr Masterson concluded the email by stating:
‘I would prefer to have a meeting regarding this and other staff issues and discuss this in more detail.’
[14] In reply, Mr Ham emailed Mr Masterson on 13 February 2016. The email is in the following terms:
‘Andy
Are you referring to the Thursday before?
So you are saying that no conversion (sic) with gabby occurred on Wednesday just gone? To which she has written what was said and supplied to you.
If so what was said from your point of view?
Did you fly open the gaming door which tracey claims you did?
We will be reviewing footage as part of this process.
A meeting will be organised once we have all information at hand and time to review everything.’
[15] On 16 February 2016, Mr Masterson was issued with a disciplinary and show cause letter (Show Cause Letter). The Show Cause Letter is in the following terms:
‘Dear Andy
DISCIPLINARY AND SHOW CAUSE MEETING
[DATE TO BE ADVISED
I refer to the investigation that has recently been concluded with regard to the incidents of aggressive and inappropriate behaviour by you.
I have concluded the investigation and I am convening a disciplinary meeting to consider the following allegations of serious misconduct against you:
1. On 10 February you swore, were aggressive and conducted yourself inappropriately towards work colleague, Gabrielle. You have previously been sent a statement in this regard; and
2. On Thursday, 4 February 2016 you aggressively went through the gaming lounge door nearly causing injury to a fellow employee, named Tracey Donnelly and when she expressed her shock to you glared at her and walked away.
Having investigated these matters and viewed the CCTV footage relative to allegation number 1, I am satisfied that the allegations are established. I am therefore convening the disciplinary meeting to give you the opportunity to respond and to show cause why your employment should not be terminated for serious misconduct.
You are entitled to have a support person present. If you elect to do so, please advise the identity of the support person in advance. I look forward to hearing from you.
Yours faithfully
Justin Ham 10’
[16] I note at this juncture that the Show Cause Letter only identifies Complaint 2 and Complaint 3. I questioned Mr Strain with respect to this matter at the hearing, to which he confirmed that only Complaints 2 and 3 were pressed by Waterloo Bay Hotel for the purposes of the disciplinary meeting and ultimately the dismissal. 11
[17] Following the issue of the Show Cause Letter, a number of emails were exchanged between Mr Masterson and Mr Ham with regards to the timing of the disciplinary meeting. 12
[18] On 18 February 2016, at 10.30am, Mr Ham emailed Mr Masterson stating that he had not heard from Mr Masterson regarding the Show Cause Letter. Mr Ham stated that if he did not hear back from Mr Masterson by 5.00pm that same day, he would determine the matter on the information that he had before him.
[19] At 2.14pm that day, Mr Masterson replied that he had thought that Mr Ham was arranging a time and date for the meeting. It was not an unreasonable assumption for Mr Masterson to have made.
[20] Mr Masterson stated that he would like to have a support person in attendance as the investigation had put him under considerable stress and anguish. He requested a time and date for the meeting so that he could determine if a support person could accompany him.
[21] Mr Ham responded:
‘Friday at 12pm at 943 wynnum road. Cannon hill. Ham Brothers office.
Bring your keys please.
Please confirm.’
[22] Mr Masterson emailed Mr Ham at 6.20pm, stating:
‘Justin
Please be fair you have not given me enough time to organise my support person as you did not state a direct time and date when you first mentioned it and tomorrow is not good for me, I would be pleased to attend a meeting to be held on Monday afternoon on neutral ground where I can peruse all the evidence against me even tho (sic) it appears you have made a decision and the outcome is a foregone conclusion.’
[23] Mr Ham responded at 7.09pm:
‘Andrew
If you have questions you had 2 days to reply.
No reply was recieved (sic) not even a question was raised.
You have had over a week under suspension.
As a manager you should know the important (sic) of dealing with matters.
Tomorrow is the date or we will deal with the matter on the facts at hand.’
[24] Mr Masterson responded at 7.56pm:
‘Justin
Questions pertaining to what?
On Feb 12 and 13 I answered the fabricated stories and innuendo against me
You have had another four days to consider the slender evidence you say you have watched
A near(?) miss in a doorway and video with no sound to record my “abusive” attitude
Two days ago on Feb 16 you stated you had seen the CCTV and made a decision and you would convene a meeting
As a manager I do understand the seriousness of the charges and was mystified by my suspension without so much as a phone call, albeit a conference call between you, Joshua and myself
I need at least 24 hours notice regarding any meeting, as tomorrow I have other appointments that were made at the start of this week by professionals other than myself, that I cannot avoid at this late date
You seem to be getting more and more aggressive toward me regarding these issues, possibly the same mood you were in when you had had a few drinks and were playing your pokies, when discussing your rental property and said I was a “fucking idiot” if you were to let me have the house rent free
Who has the house rent free now? Even though there is no such thing as free rent
TTFN
Andrew’
[25] I understand that the pleasantry at the end of the email, “TTFN” stands for ‘ta ta for now’.
[26] Mr Ham replied at 8.15pm:
‘The meeting is set. If you dont (sic) show up the matter is judged is the information at hand.’
[27] Mr Masterson agreed in cross-examination that the meeting that had been set by Mr Ham for 12.00pm on 19 February 2016 was moved to 4.00pm on the same day. 13
[28] Following Mr Masterson’s failure to attend the meeting at 4.00pm on 19 February 2016, Mr Ham emailed Mr Masterson at 4.13pm:
‘Andrew
You are [sic] not shown up for our scheduled meeting, which was set down at my office 943 Wynnum Road, Cannon Hill at 4pm today.
So we have determined based on the information we have that you have seriously breached your duties as a manger [sic] and therefore we terminate your employment as at today.
You were placed on suspension on 11/02/2015.
We note we gave you until 5pm yesterday to reply which you did not in the time period allowed.
We require your [sic] to return all keys and other material in your possession by Monday 5pm 22/02/2015.’
First Complaint
[29] It is accepted that the Show Cause Letter did not require Mr Masterson to address Waterloo Bay Hotel on the First Complaint.
[30] I find that Mr Masterson’s employment did not come to an end as a result of the First Complaint.
Second Complaint
[31] The Second Complaint, that being that Mr Masterson aggressively went through the gaming lounge door nearly causing injury to Ms Donnelly, and then glared at her, was captured on CCTV.
[32] The footage of the incident had not been filed in the material of Waterloo Bay Hotel. During the hearing, when it became apparent that footage existed of the incident, I directed the respondent to produce it. A short adjournment was taken to enable the footage to be delivered from the respondent’s premises to the Commission.
[33] Ms Donnelly did not give evidence. I have, however, had regard to the email sent by her at [8] on 8 February 2016 regarding the event on 4 February 2016.
[34] During the hearing, Mr Masterson was shown the footage of him leaving the gaming room. It was the first occasion he had reviewed the footage. I asked Mr Masterson to watch it for a second time and then commentate.
[35] During the second play-back of the footage, Mr Masterson’s evidence was:
“So I have come through the door, passed Tracy. I think Tracy might have said – I can’t remember what she said – it was, ‘Are you all right?’ or something and I said, ‘No, I’m just tired’ and that was about it.” 14
“I didn’t think anything of it. I got along with Tracy quite well.” 15
[36] In cross-examination, Mr Masterson agreed that he was in a hurry when he came out of the gaming room door. Mr Masterson disagreed that he had ‘burst through the door’. 16
[37] Mr Ham’s evidence is that when he looked at the footage, he accepted that Ms Donnelly’s account of the incident was accurate. Mr Ham considered that Mr Masterson had glared at Ms Donnelly when he had come suddenly out of the door. 17
[38] In a question put by me, Mr Ham confirmed that he considered that Mr Masterson had aggressively come out of the gaming lounge door and had nearly caused injury to Ms Donnelly.
[39] In submissions, Mr Strain put the following:
“….he’s absolutely stormed through the door, comes storming down the stairs such that she’s actually had to step back. He doesn’t stop and say, “Oh, Look I’m really sorry, Tracy. I’m in a hurry.” That’s evident from that.
What he does he storms past and nearly knocks her over, glares at her and that’s the evidence and carries on. And that’s entirely consistent with Tracy Donnelly’s evidence. And that’s aggressive conduct. It’s rude. Downright rude that sort of behaviour.” 18
[40] Mr Strain submitted that it was Mr Ham’s evidence that opening the door in the manner in which Mr Masterson did could have caused injury to anybody who was behind the door. I suggested to Mr Strain that is true of any door that is opened [without there being visibility to the other side].
[41] I questioned Mr Strain that if I made a finding that the incident involving Ms Donnelly was inadvertent and not serious enough to warrant serious misconduct on its own, would the Third Incident, if I found it had occurred, be sufficient to find a valid reason for the dismissal? Mr Strain conceded that the incident involving Ms Donnelly, if it were in isolation, would not constitute misconduct sufficient to justify termination. 19
[42] I asked Mr Strain whether the respondent pressed that if I find the incident involving Ms Donnelly to be inadvertent, the alleged incident involving the foul language said to Ms Austin would be sufficient to warrant dismissal. Mr Strain agreed that was the respondent’s contention. 20
Third Complaint
[43] The Third Complaint is that Mr Masterson said to Ms Austin the statements alleged to have been said at [9].
[44] Ms Austin’s hand-written complaint made on 10 February 2016 states that Mr Masterson referred to Ms Clark as a ‘fat cunt’. In a written statement in these proceedings, Ms Austin’s evidence is that Mr Masterson referred to Ms Clark as a ‘fat lazy cunt’. Ms Austin said there had been a few months between writing the hand-written complaint and preparing the typed statement. The contemporaneous hand-written complaint should be read in place of the typed statement.
[45] In examination-in-chief, Ms Austin denied that she had been involved in any sort of conspiracy between herself, Ms Clark and Ms Donnelly to make allegations against Mr Masterson. She described that as ‘nonsense’. 21
[46] In cross-examination, Mr Masterson asked if Ms Clark had been present when Ms Austin had prepared the hand-written complaint. Ms Austin answered that she was not in Ms Clark’s presence when she wrote the note. She had informed Ms Clark what had been said about her, and Ms Austin’s evidence is that she wanted to bring it to the attention of her manager at the time, Josh. 22
[47] Mr Ham’s evidence is that upon learning of Ms Austin’s complaint, he reviewed CCTV footage and came across an occasion he thought might have been when Mr Masterson and Ms Austin had engaged in a conversation as claimed by Ms Austin.
[48] Mr Ham reviewed the footage and then asked Ms Austin if this relevant period of time was consistent with what she had claimed. While he did not show Ms Austin the footage, he informed Ms Austin that he considered that she appeared to look shocked and her ‘jaw dropped’. It is Mr Ham’s evidence that the footage covers the period where Ms Austin indicated that Ms Clark had asked for the cash box, and Mr Masterson answered, “Get her to do some work the fat cunt”.
[49] When shown the relevant footage during the hearing, Mr Ham’s evidence is that it appeared to him that Ms Austin’s jaw dropped at around about the time she picked up her plate of food from behind the bar.
[50] When shown the footage during the hearing, Mr Masterson’s evidence is that he had been chastising Ms Austin for eating behind the bar. He had checked his watch and informed Ms Austin that she shouldn’t be eating at this time, and not behind the bar. He considered he was being generous by instructing her to take the food and eat it away from the bar, instead of instructing her to throw it out as she was not on a designated break.
[51] The following exchange occurred during the hearing 23:
COMMISSIONER: Alright. The reason I asked, Mr Masterson, is Gaby's handwritten statement is 10 February, so she is asking me to find that she made a contemporaneous note and that there were three incidents: one, asked her to go to gaming; the second one, she asked for the cash box, and later when she asked to go for a smoke. Is it possible that as well as chastising her for eating, she asked you for the cash box and you said this to her?
MR MASTERSON: She may have asked for the cash box but I wouldn't have said what she's got down. I would have given her direction on the day of where I need her to go or where she needs to be but I've not said these things.
[52] When questioned by me on each of the three incidents claimed by Ms Austin to have been said by him, Mr Masterson denied that he had said any of these things to Ms Austin. 24
Foul language in a hotel workplace
[53] I asked both Mr Masterson and Mr Ham if the language allegedly used by Mr Masterson is language that is used by staff working in this particular hotel. Mr Masterson answered, “That’s definitely something that I wouldn’t use to the staff that are under me. I try and work in a responsible manner as a manager.” 25 Mr Masterson agreed that if what he is alleged to have said was indeed said by him, it is unacceptable.26
[54] Mr Ham stated that even though Mr Masterson is employed in a hotel environment, foul language is not used by staff; not in the context of a manager speaking about another manager to a staff member. 27
Failure to attend show cause meeting
[55] Mr Masterson’s paid suspension from work was effective from 10 February 2016. On 18 February 2016, Mr Masterson was directed by Mr Ham to attend a meeting the following day to address the concerns within the Show Cause Letter.
[56] Late in the evening of 18 February 2016, the meeting was rescheduled by Mr Ham to take place at 4.00pm due to Mr Masterson being unavailable to attend at 12.00pm. Mr Masterson had stated in his email that he had made appointments earlier in the week with ‘professionals’ and could not attend at the earlier time.
[57] Mr Masterson also expressed his concern that the meeting was to take place the following day. He stated that he would not be in a position to organise his support person, and required 24 hours’ notice of a meeting.
[58] It is noted that on 13 February 2016, Mr Masterson had emailed Mr Ham stating that he wished to have a meeting with Mr Ham to discuss the allegations and other staff issues.
[59] It is Mr Masterson’s evidence that he considered that Mr Ham had already made up his mind to dismiss him, and his attendance at a meeting with Mr Ham would not have changed that. Mr Masterson considered because Mr Ham had emailed him to say, “Bring your keys”, he considered that he was ‘already terminated’. 28
[60] I questioned Mr Masterson as to his non-attendance at the show-cause meeting. Mr Masterson initially suggested that he could not attend the meeting scheduled for 4.00pm. He then agreed that he could have attended at 4.00pm, but he elected not to. 29
[61] Mr Masterson would have preferred to have had the meeting the following Monday. He stated that his father could have attended as his support person.
[62] Mr Masterson gave evidence that he did not wish the meeting to take place at the hotel premises, as he would have felt ‘scared and intimidated’. 30 He considered that he would not get a fair trial.
[63] Further, Mr Masterson’s evidence is that he would not like to have seen Ms Austin or Ms Donnelly if the meeting had occurred at the hotel. I put to Mr Masterson the following scenario; he attends the meeting, he denies the conversation with Ms Austin, Mr Ham then brings her into the meeting to determine who is telling the truth. Mr Masterson accepted that this was a scenario available to Mr Ham.
[64] In evidence, Mr Masterson said that on denying the alleged conversations with Ms Austin, his preference would have been to have had a meeting with Mr Ham and the other manager, Josh. Mr Masterson suggested that he could have sat down and discussed what had happened and a ‘better way to resolve the issue’. 31
[65] I asked Mr Masterson if he had attended the meeting on 19 February 2016, and denied the conversations with Ms Austin, what confidence could Mr Ham have in himself and Ms Austin working together? Mr Masterson suggested that there are other areas that he could have worked and avoided Ms Austin in the workplace. Mr Masterson’s evidence is that if Mr Ham did make a finding that he had said the things attributed to him, but denied by him, he could have been given a warning. 32
[66] In any event, Mr Masterson later accepted that the meeting had been organised to be held away from the hotel premises. It was to be held at the premises of the accounting firm Mr Ham owns. Mr Masterson’s earlier evidence that he was concerned he might run in to Ms Austin and Ms Donnelly was in error. 33
Protection from Unfair Dismissal
[67] Section 382 of the Act sets out the circumstances that must exist for Mr Masterson to be protected from unfair dismissal.
[68] There is no dispute, and I am satisfied, that Mr Masterson was protected from unfair dismissal.
[69] It is not disputed that the dismissal was at the initiative of Waterloo Bay Hotel.
Harsh, unjust or unreasonable
[70] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
“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.”
[71] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
‘.... 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.’
[72] I am under a duty to consider each of these criteria in reaching my conclusion. 34
[73] I will now consider each of the criteria at s.387 of the Act separately.
Valid reason - s.387(a)
[74] Waterloo Bay Hotel must have a valid reason for the dismissal of Mr Masterson, although it need not be the reason given to the applicant at the time of the dismissal.35 The reasons should be ‘sound, defensible and well founded’36 and should not be ‘capricious, fanciful, spiteful or prejudiced.’37
[75] The reason Waterloo Bay Hotel gave for the dismissal of Mr Masterson is that Mr Masterson did not attend the scheduled meeting on 19 February 2016, and on the information available to Waterloo Bay Hotel, Mr Masterson had ‘seriously breached …. duties as a manager.’
[76] It is clear that Waterloo Bay Hotel relied on the two incidents, that being the Second Complaint and the Third Complaint to terminate Mr Masterson’s employment.
[77] I have had the opportunity to review the CCTV footage of both incidents. The Second Incident, involving Mr Masterson hurriedly exiting the gaming lounge door is not an incident, in my view, that would warrant dismissal. While it can be said that Mr Masterson briskly exited through the door, Ms Donnelly was at the bottom of the landing. There are three steps for Ms Donnelly to take to reach the door. Similarly, there are three steps for Mr Masterson to take to walk down to where Ms Donnelly was standing.
[78] It is true that on Mr Masterson exiting the door, he somewhat halted Ms Donnelly’s expected rise to walk up the steps. She visibly took a few steps backwards so that they did not collide. I do not find that Mr Masterson ‘glared’ at Ms Donnelly. He had passed her and their interaction with each other was for less than two seconds. They did not, it seems, even have eye contact with each other. Mr Masterson appeared to note that she was at the bottom of the landing and then moved closer to the building wall, even looking in the direction of the wall. He did not spend any time looking at Ms Donnelly’s face.
[79] Ms Donnelly’s written complaint is that it was the following day she asked Mr Masterson what his problem was as he had nearly knocked her over. Her account is that he responded that he had been tired, and he walked away.
[80] While it was put by the respondent that Mr Masterson’s conduct was aggressive and ‘downright rude’, I do not consider it misconduct. It would have been a more pleasant scenario if Mr Masterson had, upon seeing Ms Donnelly at the bottom of the steps said something along the lines of, ‘I’m sorry, Tracey, I didn’t see you.’ He did not. It does not, however, constitute misconduct if he hurriedly opened a door to outside, and upon seeing a fellow employee moved his line of walking such that he didn’t collide with her. I accept that he did not speak with her at this time, but this does not constitute misconduct.
[81] Having reviewed the footage of the Third Incident, I am not satisfied that it is clear that Ms Austin was shocked at that particular time. Mr Ham has suggested that Ms Austin’s jaw dropped upon Mr Masterson stating a crude expression about Ms Clark. Further along in the footage it is evident that Mr Masterson appears to be looking for Ms Austin to return to the bar to help serve patrons. Ms Austin appears to point backwards, and it is likely that at this point in time she was expressing that Ms Clark required the cash box.
[82] I do not find that the footage in relation to this incident is helpful for Waterloo Bay Hotel. Ms Austin did not have the opportunity to view the footage, and it is Mr Ham’s assumption that the footage viewed by him and by the Commission is relevant to the period of time of the conversation.
[83] I do, however, accept the evidence of Ms Austin that on 10 February 2016, Mr Masterson said the things claimed by her and documented in a hand-written statement of the same date. Where Mr Masterson denies he said these coarse and vulgar references to Ms Clark, and instructed Ms Austin to “suck it up and pick a side, princess”, I find that he did make these statements.
[84] Mr Masterson has submitted that I should find that there has been some conspiracy between Ms Austin, Ms Clark and Ms Donnelly. Mr Masterson asserts that Ms Austin was, around 10 February 2016 being housed by Mr Ham’s other corporation rent-free, and that is why she would make a false allegation against him. I reject that submission.
[85] While Ms Austin did appear to me to be unsophisticated, I find that she did not appreciate Mr Masterson speaking to her using coarse and vulgar language about Ms Clark. She immediately reported it and on the same day, recorded the conversation in writing.
[86] Mr Masterson submitted that if he had the opportunity to deny making these statements to Mr Ham, and to another manager, Josh, he could have worked out another way to resolve the issue with Ms Austin. He proposed that they could have worked in other areas.
[87] It is not a suitable proposition. Mr Ham would be tasked to make a finding as to who was telling the truth. Certainly, if he was uncertain as to who was telling the truth, he could make a finding that he accepted neither account, or perhaps there had been a misunderstanding. This would, however, have made it extremely difficult for Mr Masterson to continue to manage Ms Austin if Ms Austin held a view that Mr Masterson had effectively accused her of lying and seeking advantage through conspiracy.
[88] Similarly, Ms Clark had become aware that Mr Masterson had allegedly said vulgar things about her to a member of staff. It would have been extremely difficult for Mr Masterson to continue working alongside both Ms Austin and Ms Clark.
[89] Having determined that the Second Incident does not constitute misconduct, I am tasked to determine if the Third Incident alone constitutes a valid reason for the dismissal.
[90] I note at this point that the wording of the Show Cause Letter, stating that the investigation ‘has recently been concluded’ and on review of the CCTV footage ‘the allegations are established’ was a step made prematurely by Mr Ham. Indeed, Mr Ham was entitled to hold a preliminary view about the incidents. Without, however, the opportunity to hear from Mr Masterson and his version of events, it would be unfair to accept that on 16 February 2016, Mr Ham had fairly completed the investigation.
[91] Mr Masterson then failed to attend a meeting to further discuss the incidents. His failure to attend the meeting without a satisfactory reason resulted in Mr Ham making a determination on the information before him.
Consideration
[92] I accept there was a procedural flaw in the investigation carried out by Mr Ham. It was not open to Mr Ham, as of 16 February 2016 when the Show Cause Letter was issued, to have made a formal finding that the allegations were established.
[93] However, Mr Masterson’s failure to attend the rescheduled meeting, and noting his earlier desire to discuss the issues does not result in a finding for Mr Masterson that there was not a valid reason. Mr Masterson unreasonably refused to attend the meeting.
[94] I find that on the information available to Mr Ham on 19 February 2016, and a failure of Mr Masterson to formally discuss the issue in a meeting, Mr Ham concluded that the Second and Third Complaints constituted serious misconduct, warranting termination of employment.
[95] As earlier expressed, it was not reasonable for Mr Ham to have concluded that the Second Complaint, collectively with the Third Complaint or singularly constituted a valid reason for the dismissal.
[96] I am satisfied, however, that on 19 February 2016, Mr Ham reasonably determined on the information available to him that Mr Masterson had made the statements to Ms Austin. Mr Masterson had denied making the statements, and had failed to attend a meeting to discuss the matter.
[97] I accept that Mr Masterson said the words attributed to him by Ms Austin. Not only did he make the statements, he denied making the statements when he spoke on the phone with Mr Ham. He also denied making the statements in his evidence before the Commission.
[98] Mr Masterson accepts that the statements, if they were said by him, are unacceptable. I concur.
[99] I am satisfied the behaviour of Mr Masterson on 10 February 2016 constitutes a valid reason for his termination.
Notification of the valid reason - s.387(b)
[100] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,38 in explicit terms39 and in plain and clear terms.40 In Crozier v Palazzo Corporation Pty Ltd41 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW Act 1996 stated the following:
‘[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.’42
[101] Mr Masterson was informed on 18 February 2016 of his requirement to attend a meeting the following day to discuss the Show Cause Letter. Mr Masterson had been suspended with pay, and accordingly, was obliged to attend work at any time during Mr Masterson’s ordinary hours of work, if required by the respondent.
[102] The Show Cause Letter to Mr Masterson was clear what was to be discussed at a meeting to be arranged.
[103] I am satisfied that the decision to terminate Mr Masterson’s employment was not made prior to the proposed meeting of 19 February 2016.
[104] I find that Mr Masterson was informed of the two incidents Mr Ham wished to address with him. Accordingly, I find that Mr Masterson was notified of the reason for the dismissal prior to the decision to terminate his employment.
Opportunity to respond - s.387(c)
[105] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.43
[106] Mr Masterson was given an opportunity to respond to the Show Cause Letter. He was invited to a meeting to which he was ultimately given in excess of 20 hours to attend. It is true that Mr Masterson had a medical appointment in the city at 12.00pm, but on his own evidence he was free to attend the rescheduled meeting at 4.00pm, but chose not to.
[107] I consider that the email sent by Mr Masterson at 7.56pm on 18 February 2016 at [24] was not appropriate for many reasons. Mr Masterson was aware that his medical appointment would allow him sufficient time to attend the meeting at 4.00pm. Additionally, it appears that Mr Masterson took the opportunity to throw mud at Mr Ham in relation to an earlier statement alleged to have been said by Mr Ham about free rent for the home across the road from the hotel. Mr Masterson also appears within the email to make a suggestion that because Ms Austin was by then receiving free rent for the home, there might be some innuendo attached to that.
[108] Furthermore, this is the first occasion Mr Masterson signed off his email ‘TTFN’, that being ‘ta ta for now’. It’s a very unusual way to complete an email where, on the evidence of Mr Masterson, he was of the view that his employment was about to be terminated and therefore there was no point in attending the rescheduled meeting.
[109] For the reasons above, I find that Mr Masterson was given an opportunity to respond to the reason for the dismissal.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[110] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[111] I find that Mr Masterson requested the meeting be moved from Friday, 4.00pm to the following Monday so that his father could assist him as a support person. It is not an unreasonable request for Mr Masterson to have made to Mr Ham, however at no time did he seek to find an alternative support person, or request that his father be involved in the meeting by telephone.
[112] Mr Masterson did not name to Mr Ham his nominated support person. At 6.20pm on 18 February 2016, Mr Masterson stated that the meeting planned for the following day was not suitable because he had not had time to organise his support person. His email of 7.56pm stated that he couldn’t attend because he had appointments with professionals.
[113] On the evidence before me, I do not consider that Mr Masterson’s failure to attend the meeting at 4.00pm on 19 February 2016 was because he could not organise his preferred support person, his father, to attend. Mr Masterson did not attend the meeting because in his view, he was required to be given at least 24 hours’ notice of the meeting.
[114] Mr Strain submitted that on Mr Masterson’s evidence, that he considered the respondent had already determined the outcome, it would not have mattered if the meeting had been moved to Monday; Mr Masterson would have been unlikely to turn up. 44
[115] Nevertheless, I consider that it would have been reasonable to have moved the meeting to the following Monday in order to allow Mr Masterson to have his preferred support person available. Accordingly, I find that Waterloo Bay Hotel did unreasonably refuse to allow Mr Masterson to have a support person present at the meeting rescheduled for 4.00pm on 19 February 2016.
Warnings regarding unsatisfactory performance - s.387(e)
[116] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.45
[117] In this case, Mr Masterson’s dismissal was on the basis of misconduct, not unsatisfactory performance, so the issue of prior warning does not arise.
Impact of the size of the Respondent on procedures followed - s.387(f)
[118] There were no submissions put to me with respect to this consideration. It is noted that the Form F3 – Employer Response filed states that there were 33 employees employed at the time of the dismissal.
[119] I do not consider that Waterloo Bay Hotel is a large employer, nor is it a small employer. This is a neutral consideration in determining whether the termination of Mr Masterson’s employment was harsh, unjust or unreasonable.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[120] There were no submissions put to me with respect to this consideration.
[121] Mr Ham conducted the investigation and the dismissal. It appears to me that Mr Ham is not a human resources management specialist; his evidence is that he is an accountant. I do find that there was an absence of dedicated human resources management specialists or expertise and this had some impact on the procedures followed in effecting the dismissal.
Other relevant matters - s.387(h)
[122] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of Mr Masterson was harsh, unjust or unreasonable.
Mr Masterson’s period of service
[123] In Sexton v Pacific National (ACT) Pty Ltd46, Vice President Lawler noted:
‘Relevantly advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a “fair go all round.’
[124] Mr Masterson’s service with Waterloo Bay Hotel was only 6.5 months. This is a relatively short period of time.
[125] Mr Masterson’s evidence is that he had accepted the job after moving from Melbourne. He has now relocated to the Gold Coast.
Payment of notice on termination
[126] Mr Masterson was paid two week’s wages in lieu of notice on termination.
[127] The parties had entered into a letter of offer, accepted by Mr Masterson in July 2015. The relevant termination clause is as follows:
‘Our offer is based on this contact being subject to termination (excluding probationary period) by either party on two weeks’ notice to the other, or by the firm on payment of two weeks’ salary in lieu of notice, and to termination of your employment summarily for any case for which the firm is entitled to dismiss summarily at common law.’
[128] It was submitted that Waterloo Bay Hotel terminated Mr Masterson for serious misconduct, but elected to pay to Mr Masterson two weeks’ wages.
Serious misconduct
[129] The Show Cause Letter required Mr Masterson to attend a disciplinary meeting to show cause why his employment should not be terminated for serious misconduct. Waterloo Bay Hotel confirmed that Mr Masterson was dismissed for serious misconduct, notwithstanding he was paid two weeks’ wages on termination.
[130] An authority of a Full Bench of this Commission has determined that it is not necessary to make a finding as to whether misconduct of an employee fits the definition of serious misconduct that is often quoted in s.394 applications for unfair dismissal.
[131] The authority referred to is O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 (18 December 2015). In O’Connell, the Full Bench heard an appeal of a single member of the Commission, and a consideration of that member with respect to a dismissal and whether it constituted serious misconduct or not.
[132] The Full Bench stated the following about the decision at first instance:
‘[22] We make one observation about the Decision. In his consideration under s.387(a) of the FW Act as to whether there was a valid reason for the dismissal, the Commissioner made reference to “[s]ummary dismissal for misconduct in employment” and referred to the definition of “serious misconduct” in reg.1.07 of the Fair Work Regulations 2013. This was, with respect, a distraction. As was said by the Full Bench in Sharp v BCS Infrastructure Support Pty Limited47:
“[32] … It is certainly well established that, for the purposes of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).48 Nor is the existence of a valid reason to dismiss assessed by reference to a legal right to dismiss.49 Therefore whether Mr Sharp’s admitted conduct amounted to misconduct serious enough as to give rise to the right to summarily dismiss him under the terms of his contract of employment was not relevant to the required s.387(a) consideration. It may be noted in any event that Mr Sharp was not summarily dismissed, but dismissed with a payment in lieu of notice.
[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of serious misconduct for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression serious misconduct is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). 50 Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.
[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd 51 Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice”52 and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship.53 Serious misconduct is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd54 Buchanan J said:
‘[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).’”
[23] It is of course the case that the commission of any of the types of conduct referred to in reg.1.07 (broadly speaking, wilful or deliberate conduct inconsistent with the continuation of the employment contract, serious and imminent risk to health and safety or the viability of the business, theft, fraud, or assault, intoxication at work and refusal to carry out a lawful and reasonable instruction) may well ground a finding under s.387(a) that there is a valid reason for dismissal, and would also be given significant weight in considering whether a dismissal for such conduct is harsh, unjust or unreasonable under s.387. It must also be acknowledged that the application of the exemption in s.123(1)(b) from the requirement to provide the NES entitlement to notice would not be irrelevant under s.387. But the point is that “serious misconduct” as defined in reg.1.07 (or otherwise) is not the criterion for whether a valid reason exists under s.387(a) or for whether a dismissal is unfair or not. It may well be the case, for example, that conduct that does not fall within reg 1.07 may nonetheless be found to constitute a valid reason for dismissal. Alternatively, the fact that a dismissal is based on conduct that does fall within reg.1.07 does not preclude a finding that the dismissal was harsh, unjust or unreasonable.’
[133] I concur with the above Full Bench decision, and find that I am not, in determining whether there was a valid reason for the dismissal, obliged to consider Regulation 1.07 of the Fair Work Regulations 2009. I may elect to have regard to the Regulation in determining whether there was a valid reason for the dismissal. [my emphasis].
[134] While Mr Masterson made reference to Regulation 1.07, I do not consider it necessary for me to traverse any issues with regard to Regulation 1.07 when I have already determined at [94] that there was a valid reason for the dismissal.
Conclusion
[135] Having regard to my findings above with respect to s.387(a), (b), (c), (e), (f), (g) and (h), I cannot find for Mr Masterson that the dismissal was harsh, unjust or unreasonable.
[136] While I have determined that pursuant to s.387(d), Waterloo Bay Hotel unreasonably refused to reschedule the meeting to allow Mr Masterson a support person, on the whole, I do not consider that failing of Waterloo Bay Hotel to be sufficient for a finding that the dismissal was harsh, unjust or unreasonable.
[137] On the evidence before me, even if Mr Masterson had, in the presence of his support person continued to deny the allegations made by Ms Austin, the outcome would remain unchanged.
[138] Mr Masterson’s dismissal cannot fairly be characterised as a disproportionate response to his conduct.
[139] Having considered each of the matters specified in s.387, I am not satisfied the dismissal of Mr Masterson was harsh, unjust or unreasonable. Accordingly, I find that Mr Masterson’s dismissal was not unfair. The application is therefore dismissed, I order accordingly.
COMMISSIONER
1 PN8 – PN17.
2 Exhibit R1.
3 Exhibit R1 Annexure 2.
4 Ibid.
5 Ibid.
6 Ibid Annexure 3.
7 Ibid para 5.
8 Ibid para 6.
9 Ibid Annexure 7.
10 Ibid Annexure 9.
11 PN41.
12 Exhibit R1 Annexures 10, 11.
13 PN143.
14 PN461.
15 PN463.
16 PN471.
17 PN489.
18 PN615.
19 PN637.
20 PN641.
21 PN335.
22 PN368.
23 PN438.
24 PN187 – 194.
25 PN503.
26 PN505.
27 PN507.
28 PN197.
29 PN203.
30 PN204.
31 PN693.
32 PN715.
33 PN298.
34 Sayer v Melsteel[2011] FWAFB 7498 at [20]
35 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
36 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373
37 Ibid
38 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
39 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
40 Previsic v Australian Quarantine Inspection Services Print Q3730.
41 (2000) 98 IR 137.
42 Ibid at 151.
43 RMIT v Asher (2010) 194 IR 1, 14-15
44 PN647.
45 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237
46 (2003) unreported, PR931440 at [30].
47 [2015] FWCFB 1033
48 Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10]
49 He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15] per Gray and Mansfield JJ
50 Since Sharp, it has been held in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2015] FWCFB 5264 that reg.1.07 does apply to the expression “serious misconduct” where it appears in the Small Business Fair Dismissal Code.
51 [2001] VSC 150; (2001) 107 IR 117
52 Ibid at [240]
53 Ibid at [250]-[257]
54 [2007] FCA 1903; (2007) 168 IR 375
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