Mr Barry Harvey v Egis Road Operation Australia Pty Ltd

[2015] FWC 2306

[2015] FWC 2306 [Note: An appeal pursuant to s.604 (C2015/3698) was lodged against this decision - refer to Full Bench decision dated 9 July 2015 [[2015] FWCFB 4034] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Barry Harvey
v
Egis Road Operation Australia Pty Ltd
(U2014/8966)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 7 APRIL 2015

Summary: unfair dismissal - conduct as a manager - offensive private email which incorporated employer’s name and Applicant's title - remorse.

[1] This decision concerns an application made by Mr Barry Harvey on 28 August 2014 for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”) in relation to his dismissal by Egis Road Operation Australia Pty Ltd (“the employer”).

[2] The Applicant was employed as the Manager, Environment, Safety and Quality (“ESQ”) on the Legacy Way tunnel project in Brisbane.

[3] The Applicant was employed in that capacity from October 2013 until the date of his dismissal, which was 27 August 2014 - a period of some 11 months.

[4] The employer’s letter of termination explained the situation as it saw it as follows:

“Senior management has considered the responses provided by you at the meeting held on 27 August 2014, to issues of concern raised by you initially on 9 and 10 August 2014 and the subsequent Review and investigation, and the Company in the Notification of Meeting to you, dated 25 August 2014. The Company has formed the view that your responses do not adequately address those issues.

In particular, your actions as listed below:

• Your refusal to report for duty at your normal place of work i.e. L3 O'Connor Terrace, Bowen Hills as from 11 August 2014



• Your failure to perform your normal management duties as manager of the environment, safety and quality



• Your lack of responsiveness to internal clients and staff



• Failure to follow a reasonable directions issued by Scott Cain



• Your total lack of respect and use of inappropriate language directed at Scott Cain (operations and maintenance manager) on 8 August 2014

S uch behaviour demonstrates a clear breakdown of the employment relationship.

The Company believes that it has no alternative but to terminate your employment. [...]”(sic)

[5] The Applicant, for his part, argued that his relatively short period of employment with the employer was characterised by harassment and bullying directed towards him by Mr Scott Cain, the Operations and Maintenance Manager, as well as other team members for whom he was responsible.

The Applicant’s evidence

[6] The Applicant’s evidence generally stepped out in a loose chronological manner a steady deterioration (over a relatively short period of time) in his relationship with various individuals, beginning with the Compliance Officer, Ms Anna Beacom, extending then to his other two team members, and then to Mr Cain (amongst others).

[7] The Applicant claimed that as soon as he was employed he identified poor organisation within his ESQ team and an absence of regard for appropriate process and a lack of interest in his area of responsibility.

[8] The Applicant complained that shortly after his commencement Mr Cain had failed to action aspects of his work and did not give him constructive feedback on his work.

[9] In or about May 2014, the Applicant fell into conflict with a fellow team member - Ms Beacom. Ms Beacom was eventually terminated from her employment but not before the Applicant had formed a view that Mr Cain’s efforts to manage Ms Beacom’s relationship with him (the Applicant) were “flawed and not a good management decision.”

[10] The Applicant believed that Mr Cain has attempted to “overrule and undermine my management and directions to Anna Beacom.”

[11] The Applicant believed himself to being placed on an extended probationary period because of Mr Cain’s apparent concern that he had mismanaged Ms Beacom in her role.

[12] By midyear, according to the Applicant, he had been thanked by the Company for his contribution and been given a “glowing review” of his work performance.

[13] However by the end of July 2014, the Applicant’s relationship with Mr Cain this time was deteriorating.

[14] The Applicant complained, initially, that Mr Cain had “changed some newly identified documentation formatting that I had found we needed to do late on the afternoon before and which he had expressed approval of and instructed us to proceed with.”

[15] The Applicant complained that he had not been informed of the changed formatting and that this demonstrated that he was “again being undermined.”

[16] There were also consequences for other staff, so the Applicant claimed, who fell into confusion because of the lack of communication on Mr Cain’s part.

[17] Another issue arose, this time a concern on the part of Mr Cain that other staff had a perception that the Applicant did not spend sufficient time in the workplace. This was leading to gossip, so it was claimed. This matter appears to have been raised by Mr Cain (in a meeting with the Applicant and Ms Cathy Brown, the HR Manager) on 1 August 2014.

[18] Mr Cain was said to have directed the Applicant to “clear up the issue” with staff. The Applicant claimed that he would “try to” address the issue though he was uncertain how he could address a perception issue.

[19] The Applicant asserted that fluid arrangements were in place in relation to start times at the business. He would start anywhere between 7 AM and 10 AM depending on business needs. Similarly, other staff would commence work at a time between those hours and complete a full day’s work.

[20] At the same meeting held on 1 August 2014, the Applicant was also informed in general terms, it was said, that unnamed female staff were uncomfortable in the Applicant’s presence. According to the Applicant, Ms Brown herself was dismissive of this concern as had been raised.

[21] The Applicant did raise with his team (of two) that they should raise concerns directly with him and not approach Mr Cain and other members of staff.

[22] On Friday 8 August 2014 the Applicant (with Mr Cain’s knowledge he claims) attended work at 10 AM after he had taken a (work) vehicle in to be serviced. The Applicant then left work at lunch time to renew his High Risk Licence. At 3:30 PM the Applicant left work to renew his driver’s licence.

[23] Late that afternoon (at 5:33 PM) Mr Cain sent an email to the Applicant in which he indicated that there had been an excessive spend on safety gear and that this was outside the Applicant’s delegation. Mr Cain requested that he personally be consulted about additional expenditure.

[24] Mr Cain also expressed concern about the Applicant’s attendance at work that day and indicated that he “was hoping this week that your hours would start to be a little more stable” and that the perceptions issue he had raised on 1 August 2014 would be addressed.

[25] Mr Cain stated in the email they he would discuss these matters on the following Monday with the Applicant.

[26] The Applicant responded to Mr Cain’s email (at 5:47 PM) as follows:

“Kind of over this hours thing. Please give me the courtesy of checking the logs. I don’t really need or want to deal with other peoples perceptions anymore and will require you to resolve it. Getting these sorts of email on a Friday night is not good. Have a good weekend. I am in Court Monday morning and expect to be at the work by 10 in accordance with our work hours policy.” (sic).

[27] Mr Cain telephoned the Applicant following receipt of this email and according to the Applicant (who admitted to having been consuming alcohol in the interim) “abused me and told me he was putting me on a performance plan.” It appears a number of other work related issues were raised at this time as well, given the terms of the subsequent emails.

[28] The Applicant claimed that he opposed the performance plan proposed by Mr Cain and claimed it was based on other people’s perceptions of him. Mr Cain was said by the Applicant to have stated that the Applicant should resign.

[29] In a subsequent email a little later (6:28 PM) the Applicant wrote to Mr Cain in the following terms:

“I will not be resigning. I have delivered and TJV confirms this. I will not be subjected to a performance review. The last one was rubbish [...].”

[30] In a 7:01 PM email the Applicant explained his whereabouts on 8 August 2014 and went on to say:

“I am over it. I am the ESQ Manager and I will determine our safety needs. I will then ask for feedback and where appropriate approval. I expect your support. I appreciate your support for my personal issues but they are not relevant to today’s discussion.”

[31] The emails between Mr Cain and the Applicant carried on into the next day when Mr Cain requested the Applicant to not send any more emails.

[32] The Applicant sent a further email. Its terms were as follows:

“I am formally advising you that the sniping and dismissive behaviour of staff the unfounded complaints against me and the baseless performance management previously and now have caused me distress and I regard it as bullying. Since you both spoke to me in Cathy’s office on Friday 1st August I have felt very uncomfortable at work.

I also advise that my discipline over risk management communication yesterday is adverse action.”

[33] The Applicant subsequently lodged a bullying complaint with Ms Brown on 10 August 2014. The bullying complaint related to the exchanges on 1 August 2014 and 8 August 2014.

[34] The Applicant also claimed that other staff were dismissive of his work efforts and reluctant to interact with him.

[35] Further tensions arose around that time between the Applicant and another staff member who sought the Applicant’s advice on safety issues. The Applicant’s advice was said to be purposefully unhelpful. Mr Cain also became involved in this issue.

[36] The Applicant from that point onwards found it very difficult to attend work without feeling a high degree of anxiety.

[37] Mr Cain met with the Applicant on the following Monday 11 August 2014 and explained to the Applicant that he had decided to performance manage him (though this was subsequently negotiated to be a mentoring exercise instead).

[38] The Applicant stated the felt the process to be “demeaning” and stated that:

“I am extremely more qualified and experienced than him and found his management skills very poor and actually inappropriate at times, with his undermining of me and socialising with staff.”

[39] Mr Cain also advised the Applicant that he had a decision to make in relation to whether or not he would be pressing his bullying complaint or whether he wished to withdraw it.

[40] The Applicant pressed the bullying complaint.

[41] The Applicant was thereafter unable to attend work largely owing to anxieties relating to the bullying to which he was allegedly exposed.

[42] The Applicant understood that the employer had engaged a consultant to investigate the bullying conduct as alleged. The Applicant participated in the consultant’s investigation but grew concerned that the investigation appeared to be focused upon him rather than on his bullying allegations.

[43] The Applicant was subsequently summoned to a meeting on 27 August 2014 and was provided with a two-page executive summary of the consultant’s report.

[44] The Applicant believed that the report was a critique of his own conduct.

[45] The Applicant claimed that he was informed that the employer would accept a recommendation of the consultant to terminate his employment. In light of this, the Applicant claimed that the employer offered him a payment to induce his resignation. The Applicant did not accept this proposal as it was. The Applicant’s employment was subsequently terminated and he was given a letter of termination (to which reference was made earlier).

[46] The Applicant complains that he was never informed in any detail as to what the reason for his dismissal was and therefore was given no opportunity to exercise a right of reply. He believed himself to have been dismissed from his employment on a summary basis and denied procedural fairness.

[47] The Applicant broadly resisted the claims made by the employer in its letter of dismissal of 27 August 2014. The Applicant claimed that his failure to attend work between 11 August and 27 August 2014 (putting aside days on which he was on leave and a public holiday etc) were covered by a medical certificate. Any other attendance issues were the result of leave approved by his employer and his appropriate use of the flexibility inherent in the working hours policy adopted by his employer.

[48] The Applicant also claimed that allegations he had lacked responsiveness to internal clients and staff were wrongly founded. There had been a complaint that he had responded to a request for advice on a safe work instruction definition by merely providing a copy of the relevant statute and not articulating any practical definition of use to the business. The Applicant argued that it was quite appropriate within his professional domain to reply in the manner he did to the request.

[49] The Applicant otherwise claimed that he had never not responded appropriately to a direction by Mr Cain and any allegation that he had failed to follow any reasonable directions was without foundation.

[50] Finally, the Applicant also denied that he had ever intimidated or made any female member of staff feel uncomfortable by his behaviour. He claimed any comments he made about women’s attire were entirely appropriate in the context; that he had only stood close to female staff working on a computer in a collaborative way; and that he had never deliberately stared at any female staff members (only past them perhaps).

The employer’s evidence

[51] The employer claimed that the circumstances leading to the Applicant’s dismissal were more complicated by far.

[52] Mr Cain explained that on or about December 2013 the Applicant’s workplace conduct changed as a result him having undergone a marital separation. The Applicant became distracted by his personal circumstances and was said by Mr Cain to have brought his laptop to work so that he could work on his legal case during business hours. Mr Cain stated that he made “many request of [the Applicant] that he cease such conduct.”

[53] The Applicant’s attendance at work also became inconsistent.

[54] Mr Cain placed the Applicant on an extended probationary period for these reasons.

[55] It appears as though the Applicant’s conduct impacted upon other employees who fell under his supervision, such as Natashia Potzal. Ms Potzal was said to have complained to Ms Brown about the Applicant’s conduct - such was Ms Brown’s evidence. Ms Potzal also purportedly made a written statement about various aspects of the Applicant’s conduct. I will not set these complaints out because Ms Potzal ultimately declined to appear in the proceedings and was unable to be subject to cross-examination.

[56] Mr Cain gave evidence that all 3 female staff members under the Applicant’s supervision (Ms Beacom, Ms Potzal and Ms Foley) had at various times complained to him in a distressed state about the Applicant’s threatening and erratic behaviour, as well as his lack of guidance and poor attendance in the workplace.

[57] In what would appear to be late June 2014 Mr Cain explained that he met with the Applicant to discuss the Applicant’s conduct and performance. Mr Cain contended that he communicated to the Applicant that there were concerns about his erratic attendance at work and that he needed to focus upon his work effort and spend less time on his personal computer (dealing with his personal legal issues). Mr Cain also said that he indicated to the Applicant that staff were distracted by his behaviour and that he needed to provide guidance and support to his team members.

[58] Mr Cain considered that for a couple of weeks following that meeting the Applicant was making a reasonable effort to improve in relation to the conduct and performance issues that had been brought to his (the Applicant’s) attention.

[59] Around this same time, however, Mr Cain had become aware that the Applicant had used his “LinkedIn” account to send threatening emails to a person who may have been his ex-partner.

[60] The emails were in particularly aggressive and abusive terms and do not warrant reproduction in this decision.

[61] The LinkedIn emails specified by way of heading the Applicant’s position title and employer:

“Barry Harvey

ESQ Manager Egis/Legacy Way - Contract Health and Safety Consultant and Trainer/Assessor”

[62] The emails had been the subject of a complaint by the recipient to the employer’s Head Office.

[63] Mr Cain explained to the Applicant that his conduct in drawing the employer’s business into personal emails had to cease immediately.

[64] Around this time, Mr Cain asked the Applicant to prepare a checklist so that relevant safety information and tasks can be checked off internally prior to the appointment of a subcontractor. The Applicant was said to have replied that “safety is not a one-page task I am not doing that.” Mr Cain believed this to be a particularly unhelpful approach on the part of the safety manager of whom he expected support in providing a “simple process for staff to follow, to ensure a guide [...] that provided a consistent and reliable outcome.”

[65] Ms Brown met with the Applicant and Mr Cain on 1 August 2014, as mentioned above. At that time she raised the issue of the Applicant’s time spent away from the office. Mr Cain expressly informed the Applicant that his staff had started to discuss his frequent absences from the office and irregular working hours, and that as a member of the leadership team he should be leading by example. Further, Mr Cain stipulated that as a manager the Applicant should be available to provide detailed direction to staff as required.

[66] Mr Cain indicated that these behaviours were not acceptable.

[67] Mr Cain contended that the Applicant replied by stating words to the effect:

“You need to manage people’s perception, I am not doing anything wrong, my hours are getting done.”

[68] Mr Cain stated that he did not approve of the Applicant working from home as it would lead to a dysfunctional workplace, given that the Applicant was responsible for supervising staff.

[69] Mr Cain denied the Applicant’s claim that employees could work selective or irregular hours as this “sent a clear message to [...] staff that they can come and go as they please [and] this behaviour was not approved by the Company.”

[70] Mr Cain raised this issue with the Applicant and requested that the Applicant work specific start and finish times, such as 7 AM to 4 PM, 8 AM to 5 PM, or 9 AM to 6 PM. As he made clear in his viva voce evidence, Mr Cain required the Applicant to perform his standard 38 hour working week at the workplace.

[71] Mr Cain claimed that the Applicant did not abide by this request because on 8 August he left the office early.

[72] Mr Cain also requested that the Applicant provide instruction and direction to his staff and provide them with a detailed breakdown of the tasks that needed to be completed over the next six months. Mr Cain also informed the Applicant about concerns on the part of female staff about his conduct, such as standing over them and making comments about their dress.

[73] Mr Cain contended that the Applicant was defensive and argumentative in response to these statements and did not agree with any of the matters being raised.

[74] Mr Cain stated that he offered personally or through the agency of Ms Brown to attend meetings with staff to assist him (the Applicant) in developing their tasks. The Applicant was said to have rejected this proposal.

[75] The Applicant conducted at a meeting with his team on 4 August 2014.

[76] It was claimed that his two team members, Ms Potzal and Ms Foley, subsequently complained about the Applicant’s conduct in this meeting to Ms Brown. The gist of Ms Brown’s evidence was that the employees (who did not themselves give evidence in this matter) felt the Applicant had intimidated them into not speaking about any issues to anyone “from HR” or to Mr Cain.

[77] At around this time Ms Brown stated that the Applicant had attended her office and informed her that:

“If Scott Cain thinks he is going to performance manage me he is fucking mistaken.”

[78] It was following this incident that Mr Cain telephoned the Applicant early in the evening (around 6 PM it would appear) on 8 August 2014 and indicated that he wished to discuss with him the number of performance issues, including hours of work, his work tasks and a number of particular processes, such as developing processes for subcontractor management and work permits. Mr Cain stated that he explained to the Applicant that he would need to set out a performance plan to ensure there was an common understanding of the company’s expectations and that they would meet and talk about this procedure shortly. The relevant email exchanges are set out earlier.

[79] Mr Cain gave evidence that the Applicant had stated that:

“I will resign before you put me on the performance plan.”

[80] Mr Cain contended that the Applicant’s response to the prospect of a performance management plan caused him (the Applicant) to act “irrationally and aggressively” and that during the telephone conversation in the early evening of 8 August 2014 the Applicant was “offensive and foul.”

[81] The following week Mr Cain indicated that he informed the Applicant that he considered the language that he used in the conversation of 8 August 2014 to be unacceptable and that it would no longer be tolerated. The Applicant conceded in his viva voce evidence that there may have been a number of expletives used in the course of the conversation.

[82] A further area of dispute arose around the same time. Another manager - Mr Zaffer Yacoub, the Acting Maintenance Manager (or Senior Asset Management Consultant) - had sought information on safe work management systems from the Applicant, including definitions. The Applicant responded in what the employer described as unhelpful terms by quoting legislation only, which dealt with matters in a descriptive manner. Even when Mr Yacoub sought further clarification as to the precise requirements the Applicant again merely quoted legislative provisions.

[83] Mr Yacoub was said to have been deeply aggrieved by the Applicant’s conduct in this regard and Mr Cain expressed his disappointment to the Applicant about the nature of the leadership he provides within the organisation.

[84] Given the increased difficulties in the relationship with the Applicant, the anxieties within the team the Applicant managed, and the accusations of bullying raised by him, Mr Cain engaged the services of INTUS Group. An industrial psychologist, Mr Rudy Crous, subsequently conducted an investigation (or “investigation/review” as Ms Brown put it to the Applicant) into a number of departments, including the various issues affecting the ESQ team and the relationships within that team.

[85] Ms Brown gave evidence that the Applicant appears to have gone home as he was “exhausted” on 12 August 2014, advising Ms Brown and Mr Cain of this in an email. Ms Brown offered medical assistance and access to EAP by way of reply, and indicated the investigation/review of his bullying claim was afoot.

[86] An email that he despatched to Ms Brown later that day (in response to her enquiry about his well-being) read as follows:

“Thanks Cathy I just called but it went to message bank. I am ok just can't really work out what has happened Scott tells me I do good work then put me on a performance plan because people have perceptions. I don't know what I can and can't say or do or how to say it who to now. On reflection Scott has consistently undermined me with Anna and recently. I'll see how I feel about coming in Monday but until it is sorted I am not sure I want to be there.” (sic)

[87] Putting aside weekends, a public holidays and two days leave, the Applicant did not again return to the workplace. According to Ms Brown, the Applicant provided no medical certificate in relation to this period of time until after 27 August 2014. Indeed, the only medical certificate filed in these proceedings was a certificate which was itself dated 27 August 2014.

[88] Later in August 2014, after the Applicant’s leave and the public holiday had passed, Ms Brown had attempted to couch the Applicant’s return to work. There are a series of emails which deal with this matter.

[89] On 18 August 2014 the Applicant suggested (via email) that he could work from an office away from his regular workplace. Ms Brown replied to the Applicant:

“Barry, I don't think that is a wise and I would suggest you come into the office as you would normally. As a manager of a team you cannot work in isolation. We have a management meeting this morning. If you decide you do not want to come into work I would recommend you request leave. If it is practically possible and the consultant agrees then interviews will start a.s.a.p. I am trying to ensure we do the right thing by you and I need you to commit to the process so we can try to rectify departmental issues.”

[90] The Applicant replied:

“Hi. Cathy. I will obtain a medical certificate. I do not wish to be penalised for something that is not my doing. I still do not know what I did wrong and why I am [being] performance managed having achieved all my targets and getting good feedback from my manager.”

[91] Ms Brown replied:

“I thought that the discussion that Scott & I had with you on 1 August it was made clear to you that there were problems with your timekeeping, issues with your team that needed to be address. Both Scott & I offered to assist you with - in the short term you declined our assistance at team meetings. Direction of tasks given to your team members seemed to be another issue for your subordinates. A plan was needed for the next 6 months hence Scott’s offer to mentor you through the process. I believe he has organised meetings to support you, he is taking reasonable management to support you.

You are well aware that we are all under the pump to deliver and by withdrawing makes it very difficult to your colleagues and your team [...].” (sic)

[92] The Applicant replied:

“I disagree Cathy. Scott told me he had no issues with my work end of story as far as I’m concerned. This whole matter is inappropriate.”

[93] Also on 18 August 2014, Ms Brown wrote to the Applicant and informed him that in light of his bullying complaints Mr Crous, had been contracted to conduct a “thorough internal review of a number of departments [...] including your [the Applicant’s] department [...] that, as part of that review, Mr Crous shall investigate your allegations of bullying, and present a report with findings and further recommendations, in this regard.”

[94] The Applicant was interviewed as part of this review the following week.

[95] On 22 August 2014, whilst alerting the Applicant to the progress of the investigation, Ms Brown emailed the Applicant and attempted to encourage him to return to his place of work:

“Barry, I urge you to consider returning to work, as you are aware there are very tight deadlines that Egis is required and by non-attendance you are placing the business at risk.” (sic)

[96] Ms Brown’s email string was headed: “Re: Review & investigation of concerns raised about workplace bullying, harassment and or intimidation.”

[97] The Applicant replied by advising that he would return to work at another location, and updating Ms Brown about his plans and activities regarding the next deadline.

[98] Ms Brown replied:

“[...] I am responsible for the review and investigating the alleged inappropriate behaviours listed above. As such I have an obligation to keep you informed of the process involved.

Your team is situated at 41 O’Connell Terrace, Bowen Hills and as such you are expected provide leadership and to work at this location. Scott & I will be meeting with the INTUS Consultant at 4 PM this afternoon and schedule a follow-up meeting with yourself as soon as it is practically possible.” (sic)

[99] The Applicant indicated in reply that he would only work at another location and that:

“If I continue to be admonished in not coming into a bullying environment I am happy to get a medical certificate and make a WorkCover claim for lost time which then is reportable to the client. I am doing the best of a bad situation which was not my doing and poorly handled.” (sic)

[100] On 27 August 2014 Ms Brown and Mr Crous met with Mr Harvey at an external location to provide feedback on the review of the ESQ Department and the allegations of bullying, harassment and intimidation.

[101] In part, the report concluded in the following manner:

“During the one-on-one interviews there was no apparent evidence of bullying within Egis. Although Barry claims Scott is bullying him, there was no evidence to substantiate this accusation. As a matter of fact, the “bullying” examples [...] provided appeared to be indicative of normal performance management actions taken by Scott.

Furthermore, feedback provided by Egis personnel during the one-on-one interviews paints a picture of Barry as someone who lacks leadership skills and abilities, and requires further mentoring, coaching, and training to be successful in his role. Scott Cain is seen, by interviewees, as someone who leads by example and has offered Barry numerous opportunities for further development and improvement - these opportunities have gone begging as Barry refuses to accept and acknowledge his development gaps.

With regards to workplace harassment and intimidation, it appears that Barry could be culpable of inappropriate behaviours and actions towards ESQ staff. Specifically, Barry is said to have made threatening remarks to ESQ team members regarding their job security, allegedly made an inappropriate comment on the work attire (skirt) of one ESQ team member, encroaches on personal space and private lives, and is often found standing and staring at ESQ team members (females).” [...].

[102] Mr Crous was said to have provided the Applicant with a copy of the executive summary of the report at the meeting of 27 August 2014 (though it is unclear whether the Applicant read it). Ms Brown claimed she had intended to use that document as the basis for a discussion with the Applicant but that he was disinclined to engage with her and was angry and upset.

[103] That is, upon examining the executive summary the Applicant was said to have stated words to the effect that:

“I don’t know who said what and I don’t care about people’s perceptions and anyway, I get the job done, Scott is happy with my work.”

[104] Ms Brown’s evidence was at this stage, she took the view that there would be no progress in discussing the review. Ms Brown appears to have indicated to the Applicant that in the context of the report the employer had concluded that it was clear that the working relationship had broken down and it was obvious that the Applicant did not want to work at the office or with [Mr Cain].

[105] Ms Brown had anticipated the possibility of this outcome and offered to the Applicant an opportunity to resign his employment on the basis of an enhanced payment and a deed of release. The Applicant was given until the next day to consider the option.

[106] Ms Brown claimed that the Applicant did not comprehend that being a manager incorporated a leadership role as well as being able to exhibit necessary technical skills.

[107] Ms Brown claimed the Applicant stated that:

“You are doing a constructive dismissal and I will lodge a claim of unfair dismissal and adverse action, and a claim with WorkCover and this would be a lost time incident and would be reported to Transcity. The only reason I have not already done this is because I had the best interest of Egis at heart. I no longer care about Egis. I will inform Worksafe Australia and all regulatory authorities.”

[108] Ms Brown indicated that it was not an intention to argue issues with the Applicant and that it had become obvious to her that the Applicant no longer wished to be with Egis.

[109] The Applicant nonetheless took the letter with him and stated, according to Ms Brown, that:

“It’s probably better I am not at Egis, can you sort out my notice pay which is equal to 4 weeks pay [...].”

[110] There were some further comments made by the Applicant at this time, and which bear on the employment relationship, which I will deal with below.

[111] The next day Ms Brown, having not heard from the Applicant by the stated deadline and believing as a result that the Applicant had no intention to accepting the proposed settlement, issued a letter of termination to the Applicant. I have referred to the termination letter above and set out its main terms.

Legislative Context

[112] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Consideration

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)

[113] The evidence in this matter led by Mr Cain and corroborated to a large extent by Ms Brown suggests that the Applicant was advised on a number of occasions as to the employer’s expectations of him as a manager. I have had no reason to doubt the evidence of Mr Cain and Ms Brown - it was given frankly and without any of the hallmarks of fabrication or exaggeration. It was evidence given under a particularly exacting cross-examination by the Applicant, but was not seriously challenged nonetheless. It was also evidence that was largely reflective of the documentary evidence led in these proceedings, a deal of which I have set out above. I would add that Mr Cain’s evidence was marked by his willingness to concede openly to the Applicant’s claims in some respects, which suggested something less than a dogmatic view of his own position relative to the Applicant’s evidence.

[114] There were numerous matters that had come to create tension if not dysfunction within his small team and the Applicant denied responsibility in a managerial capacity for effecting any positive change in that regard, or for reflecting professionally on the claims as made.

[115] At one level, this is not so much a case in which it is necessary or warranted to determine the Applicant’s guilt in relation to particularised misconduct and performance issues, which had been the basis of the complaints made about him. Rather, it is more a case about the appropriate conduct expected of a senior manager (as the Applicant held himself to be) when faced with various workplace behavioural issues.

[116] When the Applicant was advised about each of the particular issues - from his attendance to his conduct in dealing with subordinate staff - he showed no serious intention of responding positively to the concerns that had been communicated to him. The Applicant remained defensive and aggressive in his posture towards management and claimed that many of the concerns were just “perceptions”, and someone else’s problem to manage.

[117] The employer took some effort to articulate its concerns regarding the Applicant’s behaviour as a manager and sought to redirect him and offer assistance and support. The Applicant did not take up the offers but instead exhibited increasing resistance to any course that required reflection on his conduct. Even following the detailed prescriptions set out in the meeting of 1 August 2014, the Applicant subsequently denied that there were any issues that needed to be addressed by him.

[118] By August 2014, after only a relatively short period of employment, the Applicant had fallen into a distrustful relationship with his employer; believed himself to be the victim of bullying from his subordinate staff and his manager; was alienated from the workplace; and remained convinced of his capacities to exact results whilst oblivious to the need to confront questions about his managerial style and personal conduct.

[119] When the Applicant had opportunities to display his capacity to cooperate and exhibit his managerial skills and assist the needs of the organisation (such as in relation to Mr Yacoub’s request for safety information discussed above) he allowed the interaction to dissolve into an argument. The same was the case in relation to the request to produce a subcontractors’ check list, to which I have referred above. On their own these are relatively minor matters. But in the context, these two issues were indicative of the real strains in the day to day working relationship. There was more, of course, and I have set that out earlier.

[120] The employer was required to manage the Applicant’s behaviour within a relatively small work group (of some 13 or so employees) where cooperation and fluid communication was at a premium. But his managerial skills were not sufficiently sensitive to the key task.

[121] The evidence in this matter compels a conclusion that the Applicant was unable to conduct himself (as a manager) professionally, or otherwise deal with issues either of substance or perception that had arisen in a small workplace in a cooperative or civil manner. Much more was reasonably expected of an employee engaged in such a senior managerial role in the business.

[122] Ultimately, the Applicant may or may not be guilty of the various claims made against him. But his fundamental and proven failing was in his inability - in a small work group - to conduct himself in a cooperative and civil way, and exhibit the desired suite of managerial traits.

[123] I conclude, therefore, that the employer had a valid reason for the dismissal of the Applicant because of the manner in which he had conducted himself.

[124] That said, there were other features of the Applicant’s conduct that attracted the concern of his employer.

[125] The Applicant, demonstrably on the evidence, refused to participate at various times in any performance management procedure or coaching proposed by his employer. The Applicant, as an employee, was not in a position to refuse the direction of his employer in this respect. The direction was not unlawful nor was it unreasonable (for example as it might be if it was used as an instrument to coerce or bully an employee). It was a requirement that was a reasonable incidence of the employment relationship.

[126] Equally, the Applicant - in nominating his preferred alternative place of work - took it upon himself to dictate to his employer the terms on which he would perform his work. The Applicant essentially refused requests to resume his leadership role in his team from his place of work. The Applicant threatened to justify his conduct by reference to a medical certificate, but he did not produce this certificate until after 27 August 2014, when the employment relationship had effectively concluded.

[127] Indeed, though it was out of hours, the Applicant’s expletive rich response to Mr Cain in the course of their business conversation on August 2014 was a further reflection of the Applicant’s hostility to engagement with his employer on performance issues.

[128] Generally, the Applicant was unwilling to engage constructively in any process that caused him to reflect upon his performance or conduct. The refusal to constructively engage with his employer was evident, too, in the meeting of 27 August 2014. When the Applicant was given a discrete opportunity to discuss the INTUS Group report, he responded - effectively by his own admission - by disparaging his superior Mr Cain in strong terms (as “a bastard” according to Mr Crous), and characterising the process as “rubbish”:

“And can you just go through the sequence of events at the meeting, and in particular at what point was Mr Harvey provided with the executive summary of the report and what happened after that?---Essentially what happened was we got here at - we explained to Barry that we would be - we have a copy of the report for him and that we'd like to go through it with him. We asked him if he would like to read it before we get into any discussion. He read the report and responded rather angrily to the report, saying that he wasn't interested in this rubbish. He did not deem it to be a reasonable report. I explained to him that it was obvious that the relationships between him, his staff and Scott had broken down pretty much, and that I would - been authorised to make an offer on behalf of the company in order to make the process less distressful. Barry responded that he wasn't interested in any offer, that what we were doing was constructive dismissal and that he would take us to Fair Work Australia, he would take the matter up with Queensland - WorkSafe Queensland, he would also lodge a claim with WorkCover.” 1

[129] These further reasons provided the employer with a valid reason for the termination of the Applicant’s employment.

Whether the person was notified of that reason

[130] The steps by which the dismissal was effected were irregular, and are are recounted in Ms Brown’s memorandum concerning the events of 27 August 2014.

[131] The interactions between the Applicant and Ms Brown on 27 August 2014 commenced on the basis that the INTUS Group investigation was going to be discussed. But that process broke down and the parties moved to a discussion about separation. The employer made an offer to effect an agreed departure. The Applicant, firstly protesting the employer’s measures, eventually indicated that it was “probably better I am not at Egis”, and sought his notice pay and the return of some personal items, and then handed over his work related equipment.

[132] It might have been enough at this juncture that the Applicant had decided to resign his employment, had the employer not sent to the Applicant written correspondence subsequently, setting out its reasons for concluding the employment relationship had broken down and terminating the Applicant’s employment.

[133] For its part, the employer appears to have reached its own view that further action on its part was needed to effect the termination of the Applicant’s employment. The employer did not appear to accept that the Applicant’s conduct on 27 August 2014 had been sufficient to bring the employment relationship to an end, and further steps at its own initiative were warranted. The Applicant was not expressly informed or notified prior to his dismissal of the reasons the employer relied upon for that purpose.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[134] The employer’s concerns with the Applicant’s conduct should hardly have come as a surprise to him; they had previously had lengthy and involved interactions about a range of matters, which I have touched upon earlier.

[135] The Applicant himself appears to have reached the view the employment relationship had come to an end and conducted himself as such.

[136] But in so far as the employer relied upon its termination correspondence as constituting the reasons for the dismissal, it cannot be found that the Applicant expressly had an opportunity to respond to those reasons at the relevant time.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[137] The circumstances by which the dismissal was communicated and effected did not give rise to the Applicant having been refused an opportunity to have a support person present with him at the 27 August 2014 meeting.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[138] The employer appears to have had few concerns with the Applicant’s performance at a technical level. The employer was principally concerned with the Applicant’s wider behaviours and conduct around his managerial role. If it be said that the Applicant’s performance of his managerial role was found wanting by the employer (and this was distinguishable from a behavioural tendency), then the evidence bears out that the Applicant was afforded ample opportunity to address his employer’s concerns. Given the context in which they occurred, it is sufficient to conclude that the Applicant was “warned” about his performance (though in this case the Applicant might not have accepted the warning to be warranted or necessary, or related to his technical competencies).

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[139] This is not a matter in which the size of the employer’s enterprise affected the manner in which the dismissal was brought about.

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

[140] Not only is the size of the employer’s enterprise an irrelevant consideration in relation to the manner in which the dismissal was effected but so too is the availability of human resource management specialists. In this case the employer was sufficiently resourced to have at its disposal an HR practitioner, in the person of Ms Brown.

Any other matters that the FWC considers relevant

[141] The Applicant appears to have been a person who was distracted by litigation in relation to a family custodial dispute. It may be the case that the Applicant’s behaviour as set out above to some unknown measure may reflect the anxieties that arose in the course of that litigation. But the Applicant made no particular submission himself in this regard and I am not inclined to take into account matters of this kind that he has not raised himself or made any effort to bring into evidence.

[142] There were other matters that negatively affected the employment relationship and which reflected poorly on the Applicant’s judgment. One such matter was the offensive email that was brought to the attention of Egis’ parent company by its recipient (which I have touched on earlier). True it is that the email appears to have been sent from within the Applicant’s personal LinkedIn account, but the email essentially “advertised” the Applicant’s role as an employee of Egis and expressly refers to his position with Egis and to the Egis brand.

[143] It would ordinarily be thought that the Applicant ought to have been sufficiently conscious of the need to preserve the good name and reputation of his employer. The use of the employer’s name and his position title in a particularly offensive email sent to his (presumed) former partner was profoundly naive. As mentioned above, the email resulted in a complaint to the Egis head office by the offended recipient. But the Applicant conceded none of this, showed no remorse, and claimed only that employer had no cause for concern as the email emanated from a private email account and for a non-work-related purpose (despite the email referring to his position title and the employer’s name and brand).

[144] The Applicant did make claims that he was the victim, as it were, of his employer’s bullying conduct. But I see nothing in this claim. The various emails set out above do not give me any reason to conclude other than that the Applicant’s employer had sought to exercise its reasonable management prerogatives in a reasonable way - counselling and encouraging the Applicant to reflect on his conduct. The employer’s conduct appears to me to have afforded the Applicant quite some tolerance and lenience, despite his combative disposition.

[145] The Applicant, I add, was not a long standing employee who had consolidated himself in employment with the employer and could have relied on continuous employment on an indefinite basis. The Applicant had been employed for 11 months only.

Conclusion

[146] Taking all the circumstances into account, including the apparent lapses in the procedural steps taken in relation to the dismissal (as it was), the Applicant’s dismissal in my view was not harsh unjust or unreasonable. I add that I do not see the procedural lapses as bearing greatly on the outcome in this matter - the Applicant had held a fixed attitude towards the concerns raised by the employer (which were re-presented over the course of these proceedings) and a further opportunity to restate that view would have yielded no different a result.

[147] Further to this, the Applicant’s conduct at the meeting of 27 August 2014 demonstrated - through the evidence of Mr Crous and Ms Brown - his own view that the employment relationship with Egis had come to an end. Again, if the Applicant had been accorded further opportunities to express his views and opinions about Egis’ decision to terminate his employment, reasonably it would have led to no different an outcome.

[148] The application under s. 394 of the Act, therefore, is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr B. Harvey, Applicant

Mr J. Murphy, of counsel, for the Respondent

Hearing details:

2015

Brisbane

19 & 20 January

30 March

 1   Transcript of proceedings dated 20 January 2015 at PN2365.

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