Mr Brian Stanley Ellis v GPC Asia Pacific Pty Ltd
[2023] FWC 261
•21 February 2023
| [2023] FWC 261 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Brian Stanley Ellis
v
GPC Asia Pacific Pty Ltd
(U2022/7658)
| DEPUTY PRESIDENT CROSS | SYDNEY, 21 February 2023 |
Application for an unfair dismissal remedy
Mr Brian Ellis (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work 2009 (Cth) (the Act) for an unfair dismissal remedy (the Application) in relation to his dismissal from employment with GPC Asia Pacific Pty Ltd (the Respondent/GPC). The Application was lodged with the Commission on 18 July 2022.
I conducted a Directions Hearing in this matter on 14 December 2022. At the Directions Hearing, directions were issued for the filing of materials by the parties (the Directions). In response to the Directions, a large volume of discrete documents and emails were sent to my Chambers from the Applicant, and the directions were amended on 3 November 2022, to require the Applicant to collate and refile his documents in the matter (the Amended Directions). The documents before the Commission at the hearing, and the documents received in compliance with the Amended Directions, were:
Form F2 filed by the Application on 18 July 2022
Form F3 filed by the Respondent on 29 July 2022.
Submissions of the Respondent filed on 29 July 2022.
Submissions of the Applicant filed on 7 November 2022.
Submissions of the Respondent filed on 21 November 2022.
Submissions in reply of the Applicant filed on 28 November 2022.
Within those documents, the following witness statements filed by the Respondent were read at the hearing of the matter on 14 December 2022:
Witness Statement of Mr Roy, an Automotive Parts Interpreter.
Witness Statement of Mr Wiseman, the Store Manager.
Witness Statement of Ms Papadopoulos, a Delivery Driver.
Witness Statement of Mr Kerrigan, a Delivery Driver.
Witness Statement of Ms Curry, People & Culture Business Partner.
Witness Statement of Mr Marshall, Area Manager Metro and Western Sydney.
Witness Statement of Ms Sammut, a Retail Co-ordinator.
At the hearing on 14 December 2022, the Applicant represented himself, and the Respondent was represented by Ms Ahmedi of the Respondent. The Applicant, Ms Curry, Mr Marshall, and Ms Sammut were the only witnesses required for cross examination. There were no significant factual disputes between the parties, and those background facts are outlined below. The relevant controversies between the parties revolved around the importance and gravity of various factual occurrences. Where relevant I have outlined my conclusions regarding such issues where they are of importance and gravity.
Ms Curry, Mr Marshall, and particularly Ms Sammut, were witnesses who I observed to give considered and truthful evidence, carefully attempting to understand and give responsive answers to the questions asked of them. The Applicant, on the other hand, presented as an individual prone to extremes of exaggeration that belied belief. He characterised the innocuous actions of others as virtually earthshattering, while describing his own inexcusable actions as of no concern. In essence, I found the Applicant’s characterisations as simply unbelievable, although they were necessary for the Applicant to somehow dispute the fairness of his dismissal. Where the evidence between the Applicant and the Respondent’s witnesses differs, I have preferred the evidence of the Respondent’s witnesses.
Background Facts
The Applicant was employed on a casual basis by the Respondent to work three days each week at their North Parramatta Store as a Customer Sales and Service Representative from 11 October 2010 prior to his dismissal on 6 July 2022. The Applicant was dismissed from his employment following an investigation into allegations made against him, and specifically, five allegations that were found by the Respondent to be substantiated breaches of the Respondent’s Equal Employment Opportunity Policy and their Code of Conduct.
The Respondent has policies that outline the behavioural expectations of their team members at work. The GPC Asia Pacific Code of Conduct (the Code of Conduct) seeks to ensure that the workplace is free from harassment and bullying, and that employees are honest and fair in all dealings with co-workers. The GPC Asia Pacific Equal Employment Opportunity Policy (the EEO Policy) outlines the obligations all employees have to ensure the workplace is free from bullying and harassment. The GPC Asia Pacific complaints resolution procedure (the Complaint’s Procedure) outlines that all complainants should be guaranteed protection from any victimisation or reprisal regardless of the outcome of the complaint.
The Applicant completed training on the EEO Policy on 19 August 2021, and was provided with a copy of the Complaints Procedure on 21 April 2021 and 13 May 2022. I accept the Applicant was also conversant with the provisions of the Code of Conduct, which he described at the commencement of his submission of 7 November 2022, as follows:
I believe the Code of Conduct is more a moralistic document than an itemized directive of expected behaviour. Items are not defined as I would expect and the narrative appears subjective. This is not to say I disagree with the intent. The opposite is true. My ‘crimes’ though appear not to be listed.
[Original emphasis]
(a) Comments to Ms Sammut
In December 2021 or January 2022, Ms Sammut attended work on a day she was not working. The Applicant approached her, looked at her, and said “I had to come and have a second look at the back of you.” In the hearing, the Applicant agreed he said “something similar,”[1] but described it as “light hearted.” In his reply submission the Applicant stated he said to Ms. Sammut something like “Who is the good looking woman” as he passed by her as she was speaking to a group of young colleagues outside the premises, and while he was moving in and out of the building loading a vehicle he did say something like “I’m back to see the girl in the backless dress.” (It is of note that this evidence and submissions stands in stark contrast to the contents of the Applicant’s letter of 2 June 2022, where he stated: The sentence "I had to come and have a second look at the back of you" is outrageous nonsense and is an indictment of Alicia's character. I invite her to repeat it in the company of my lawyer with others present).”
On 9 February 2022, the Applicant approached Mr Sammut and the following conversation occurred:
The Applicant said: “You need to lose weight so I can walk past you”.
Ms Sammut said: “Why would you say that?”
Ms Sammut reported the Applicant’s comments to Mr Wiseman, the Store Manager, on or around 14 February 2022. After Mr Wiseman advised he would speak to Mr Marshall, the Area Manager of GPC Metro and Western Sydney, Ms Sammut advised Mr Wiseman she did not want a confrontation with the Applicant and would rather “rather let it go.”
(b) The Letter Incident
The Applicant had a letter that he wanted to leave on a counter at the Respondent’s premises for collection by a person from another business in the Respondent’s business park, PetO (the Letter). Apparently, he had a dispute with them regarding the use of parking spaces. Ms Sammut indicated she was not willing to take the Letter but the Applicant nonetheless left it on the counter near the front counter where Ms Sammut worked.
The Letter had not been collected for around a week and was in an open area, so Ms Sammut gave the letter to Mr Greg Roy, an Automotive Parts Interpreter with the Respondent, for him to give the Letter back to the Applicant.
Mr Roy had the Letter for two to four days. The Letter was not opened or tampered with. On 4 May 2022, Mr Roy approached the Applicant and they had a conversation in front of other team members in the following terms:
Mr Roy said: "Is this a private matter? You should sort this out and deliver the letter yourself”
The Applicant said: “Fuck you, you get the fuck away and get fucked" and " This is a private matter don' t you touch my shit."
Mr Roy asked Mr Wiseman to tell the Applicant to stop swearing at him. Mr Wiseman went outside with the Applicant and thereafter arranged for the Applicant to apologise to Mr Roy for swearing at him. After the Applicant apologised he began to walk back into the store and then pointed at Mr Roy and stated:
"You stay away from personal business you see what happens, you see what happens".
Thereafter, Mr Roy decided to make a formal complaint about the Applicant’s actions on 4 May 2022, and he submitted a statement on 16 May 2022 to Mr Wiseman.
Later on the afternoon of 4 May 2022, the Applicant approached Ms Sammut. Ms Sammut described the Applicant’s tone as emotionally fuelled, and a mixture of anger and upset. Ms Sammut stated to the Applicant that she did not understand why the Applicant was so angry with Mr Roy as she had given him the letter.
It was apparent that the Applicant did not leave the Letter Incident alone. On 10 May 2022, he rang Mr Marshall to discuss the Letter Incident, and sent three emails to Mr Marshall, one of which was as follows:
Gavin,
You may not agree with me but, please consider my further comments.
I do, on further reflection, require a Repco response.
We are engaged in pure farce; ludicrous nonsense.
It Is Alicia and Greg who corrupted my simple request to have my note passed on. I have not received an apology from either.
Without their interference in my affairs you and I would not have had today's conversation. Nor, would I have had the need to write to you.
Does Repco get it?
Allow me to comment on my 'outburst'. Yes. I did as I did. I told Greg to -well, you know what. The habit of a serial user of coarse language? No, the reaction of a very angry person who had had his privacy invaded. My once (or thrice) in 11 year use to the everyday use (still) in fashion at North Parramatta is not worthy of a tit for tat comparison. Is it clearly understandable why it was that I exploded!
Repco seems primarily interested in comparative harmony for staffing and commercial reasons. It appears, it may not at all be interested in the root causes of this event nor, does it (possibly) have the will to discipline Greg. '
Remember, with respect to my communication he said "We do not want any part of it" We= Repco? We= Alicia and I? Adam and me? Or just, Greg?
He is far far out of line! And, I presume, exceeding his mandate.
I have no intention of 'sorting it out' face to face with Greg. I have nothing to trade.
Greg must be told to cease and desist or I will take a private action in the form of a Restraining Order. My privacy is sacrosanct; it is inviolable! Four notable occasions constitute sufficient grounds.
Please note: I ought not to be underestimated. Brian
Gavin,
B.
[Original emphasis]
(c) The 14 May 2022 Letter
On 15 May 2022, the Applicant attended the Respondent’s premises and slid an envelope across the counter to Ms Sammut. The Applicant stated “I assume you know what this is for”. The Applicant watched Ms Sammut begin to break the seal of the envelope and left the premises immediately. The envelope contained a letter to Ms Sammut dated 14 May 2022 (the 14 May Letter). The contents of the 14 May Letter stated:
Alicia,
This communication is personal. It is written, to you, as a fellow citizen.
The envelope I left for the PetO lady was a PRIVATE communication. My expectation was that it would be treated as such. Anju had kindly agreed to pass it on.
It was removed and passed to a third person. This is an extremelv serious matter. I am more than annoyed this occurred. My private life is sacrosanct. I expect better.
That my letter was passed on, together with whatever comments may have been made, led Greg to take upon himself the liberty of confronting me. I presume by now you know my response.
I am referring this matter to the Fair Work Commission. A copy of this letter will be forwarded to that institution. Since, you are as well an employee of Repco it may well be the case you will be required to appear.
Meanwhile, if there is a further such event, I will consider the use of a legal Restraining Order.
It is, I understand, a Federal Offence in Australia to intercept another persons Mail. I am investigating if my letter (though it is not 'Post Office' mail) would for the purposes of the law, be considered Mail.
If so, I will consider referring the matter to Police authorities.
Brian
A copy of this letter will also be forwarded to the Repco/GPC People & Culture Business Partner.
[Original emphasis]
Ms Sammut was understandably angry and upset by the 14 May Letter. She spoke to her Father and Mr Wiseman, who subsequently contacted Mr Marshall. Ms Sammut suffered a great deal of stress that affected her health. Ms Sammut gave a statement to Mr Wiseman and Mr Marshall regarding the 14 May Letter, and in that statement, also outlined the incidents of the comments made by the Applicant to Ms Sammut in December 2021 or January 2022, and 9 February 2022.
(d) The Initial Investigation
Mr Marshall conducted the Initial Investigation which encompassed the Comments to Ms Sammut, the Letter Incident and the 14 May Letter, with the assistance of Ms Curry from 22 to 28 May, and then from 6 June 2022. As noted above, Mr Marshall had awareness of, and some involvement in the initial investigation of, the Letter Incident. On 15 May 2022, Mr Marshall was advised by Mr Wiseman of the 14 May Letter.
Mr Marshall met with the Applicant around 18 May 2022, and advised him of his investigation to which the Applicant advised he would participate, unlike the investigation of the Letter Incident in which he previously refused to participate. Unfortunately, on 19 May 2022, the Applicant indicated by letter that he declined to participate in the Initial Investigation. The terms of that letter were as follows:
Dear Mr. Payne, My apologies!
I have changed my mind. Yes! for the third time. Gavin had persuaded me to consider participating once again in a Repco/GPC 'session'. Since agreeing to do so, I have determined, I do though, totally lack confidence in these internal procedures.
As a 'bush lawyer' it seems to me the investigators, judges and jury are all members of the same entity: Even the enforcing authority is bound to the same root. ·
I am not a defendant. It was me who was confronted; I am the aggrieved. It was my property that was misused by Mr. Roy. I will not be considered as being 50% of this dispute.
A more accurate calculation would be 99.9% versus .001%; the latter being my 'outburst', being born of justifiable anger!
As a matter of course, I do not tell clients their employees are "f idiots". (I do know
though how to circumvent the Repco Censor with dots).In both of the most recent incidents, it was me on the receiving end of Roy's lectures. I will leave it to Repco to consider sanctioning his actions. The events were propagated by a Repco employee; in one case, with another employee complicit. It is Roy who needs to disclose the identities of any others of the "We" group. Did Roy believe he was speaking for Repco?
I, as a private citizen, divorced as it were, from Repco, intend to facilitate NSW law as my way to remedy any such future incident. All of my past correspondence will, where relevant, be presented at any such future deliberation.
I am not being pretentious. I sincerely believe the culture within Repco during the eleven (thus far) years of my tenure has markedly deteriorated. Such, has nurtured the present circumstances.
Thank you for your interest. I am happier though to fight my own battles. Sincerely,
Brian Ellis
[Original emphasis]
As part of his investigation Mr Marshall met with a number of team members who were involved or witnessed the events of 4 May 2022. He did not find that Mr Roy or Ms Sammut had acted in a way that had breached the Respondent’s policies or in a way that required further action. However, it was evident that the Applicant’s conduct towards Mr Roy and Ms Sammut was inappropriate and required further investigation in line with the Respondent’s performance and disciplinary counselling processes.
Mr Marshall advised the Applicant of a requirement to attend a meeting with him and Mr Wiseman on 2 June 2022. I accept that the Applicant was offered a support person and provided 24 hours' notice ahead of the meeting. In that meeting Mr Marshall advised the Applicant that the investigation of the Letter Incident was finalised and that:
(a) There was no evidence that the Applicant’s privacy had been breached by his letter being moved from the front of the respondent’s store;
(b) There was no evidence that the letter had been opened, viewed or tampered with by anyone in the store;
(c) There was no evidence to support that team members had engaged in mail tampering, fraud or had committed a federal crime; and
(d) Whilst the Respondent is not an authority like Australia Post or the Police which can make a judgement on whether a crime was committed, Mr Marshall was confident that the actions undertaken were not a crime or a breach of GPC policy.
In the meeting on 2 June 2022 the Applicant disputed Mr Marshall’s findings, and stated that he would pursue the matter through Workcover. The Applicant was also advised in that meeting that an investigation into the Applicant’s conduct was being undertaken. That conduct was itemised in a letter of allegation dated 2 June 2022, that was provided to the Applicant after the meeting. That letter provided:
Dear Brian,
RE: Letter of Allegations
As discussed at our meeting on Thursday 2 June 2022, in the presence of Adam Wiseman (Store Manager) and the undersigned, an investigation is currently being undertaken regarding your conduct as a Driver based at Repco Parramatta.
The allegations that form the basis of this investigation, which were the subject of our meeting, are as follows:
1.On 04/05/22, you have raised your voice at another team member and made statements to the effect of:
a."this is a private matter, don't you touch my shit", "You get the fuck away" "Fuck you" "Get Fucked"
b.You have then stated to the team member "you stay away from personal stuff, you will see what happens"
2.On 15/05/22, you attended Repco North Paramatta and handed a letter to team member that stated:
a.I am referring this matter to the Fair Work Commission.
b.Since, you are as well an employee of Repco it may well be the case you will be require to appear
c.If there is a further such event, I will consider the use of a legal Restraining Orde
d.It is, I understand, a Federal Offence in Australia to intercept another person's Mail
e.If so, I will consider referring the matter to Police authorities
3.On 9/ 02/2022, you made an inappropriate comment to Alicia regarding her weight,
specifically:
a. Alicia was bending over own e up paperwork at the back bench. There was room to walk past, but herself and the Driver were slightly blocking the room on either side
b. You came up beside Alicia and said to her 'you need to lose some weight so I can walk past you'
c. She responded by asking you why you would you say that, and you laughed and walked away
d. You did not make any comment to the other two male team members who were also standing there
e. This incident made Alicia feel very hurt and upset and it has affected her in her personal life
4.In December 2021/January 2022, you spoke to Alicia inappropriately regarding how she looked, specifically:
a.Alicia was wearing a long sleeve backless tied shirt and black jeans, and you came up to her, mentioning what she was wearing, and said to her 'I had to come and have a second look at the back of you'
b.You had already come around and behind her a few times and this was not the first comment you had made about what she was wearing that day
c.This made Alicia feel very uncomfortable and she was disgusted by the comment
Please address the above listed allegations in writing and submit the response to me by 5:00pm, Monday 6 June 2022. This written response will be considered in determining the outcome of this investigation, along with the responses you provided during our meeting on Thursday 2 June 2022. We will meet again following the return of your response to discuss the outcome of the investigation. You are welcome to bring a support person to this meeting.
Please note, no decision has been made by GPC in relation to the outcome of this investigation. If the allegations are substantiated, these actions represent a breach of GPC Asia Pacific Code of Conduct (CoC), GPC Asia Pacific Equal Opportunity Policy, GPC Asia Pacific Equal Opportunity, Harassment and Bullying Policy, your employment contract and procedure and your obligations as an employee of GPCAsia Pacific, which may result in disciplinary actions, up to and including termination of employment.
All matters and information relating to this investigation are strictly confidential and you are directed not to discuss them with any other person without my express prior consent. Any failure by you to maintain confidentiality may lead to disciplinary action. Importantly, you are directed not to approach the complainant/s or any other person involved in the complaint. Victimisation includes treating or threatening to treat a complainant less favourably or subjecting them to a detriment. It is also a breach of GPC Asia Pacific policies and will not be tolerated and may result in disciplinary action.
I remind you that confidential counselling is available to you through the Employee Assistance Program by contacting Converge International on [phone number].
If you have any queries or concerns, Please do not hesitate to speak with myself or alternatively, you can contact People & Culture on [phone number] or [email].
Yours sincerely,
Gavin Marshall
Area ManagerCc: Zandra Gray - People & Culture Advisor
The Applicant responded to the letter of allegation shortly after receipt as follows:
Hello Gavin,
Much of my response is contained in the letter composed earlier this evening. I will though answer each question posed. I am not certain of the dates nominated but, I am pleased to note the 'Alicia' dates.
Yes. I raised my voice!
la Similar to 'This is a private matter" and the very last "Get F" was used. The rest was not used.
lb This statement was not used. I told the team member he "did not respect anyone".
2 All of the statements are correct. Statements are simply of fact and options.
3a Another possible 'construction'? Bending over and looking over her shoulder! I have no recall of the room for movement, but I do not dispute the generality of the comment. I do forcefully reject the term "inappropriate'.
3b Another possible construction? Alicia remembers the exact words remembered after how many months? Yes, I may have said something in good natured jest but, in accord with the comments contained in the letter referred to above.
3c I have no recollection of this statement detail but, if l laughed it was due to my
good natured view of the exchange. I had no idea I had offended Alicia.3d Alicia has a better memory than me. I have no idea if I said anything or not.
3e Did it? I trust she is feeling better. C'mon give me a break! Maybe she was sickening from some other cause. Another construction!
4a I do not speak generally "inappropriately'' to people. I don't care what she was wearing. This is absolute nonsense! This statement is defamatory. I made no such mention of what she was wearing. I do remember it was casual dress and she appeared 'fresh' and attractive. I believe I did say something about the "good looking woman" as a compliment. The sentence "I had to come and have a second look at the back of you" is outrageous nonsense and is an indictment of Alicia's character. I invite her to repeat it in the company of my lawyer with others present.
4b I take extreme exception to the extreme falsity of these remarks. I did not see her at all that day anywhere else and for no other time or period other than at the rear door on the one occasion as described in 4a.
Remember, I am not in the shop much of the day. How long did she spend at the premises? It was not her working day.
The last sentence statement is a gross fabrication! I had not made any comments other than something initially similar to "Who is the good looking woman"?
4c A convenient conclusion to her lies! Maybe, telling the truth in future will alleviate her discomfit and disgust. The only disgust due is that she ought to feel next time she looks in the mirror.
I conclude: Alicia was coached!
The letter dated 2 June 2022 was written some hours prior to receiving the Letter of Allegations and NOT written thereafter.
In Truth
Brian Ellis
[Original Emphasis]
The Applicant thereafter sent approximately seven emails to Mr Marshall between 2 and 5 June 2022, and sent further emails to other employees of the Respondent in that timeframe. In these emails the Applicant raised concerns about Mr Roy and Ms Sammut. In relation to the Ms Sammut, the Applicant claimed she was being dishonest and requested an inquiry into her allegations. Mr Marshall concluded the investigation into the allegations put forward by Ms Sammut would determine if Ms Sammut was being dishonest. The Applicant did not raise a formal complaint against Mr Roy but Mr Marshall nonetheless investigated what the Applicant had raised against Mr Roy.
Thereafter Mr Marshall met with Mr Roy and other relevant witnesses that had been named by the Applicant. On 21 June 2022, Mr Marshall met with Ms Curry and they reviewed the information available and determined that on balance the allegations against the Applicant had been substantiated and had breached GPC policies. The Applicant was then advised of the requirement to attend a further meeting which was scheduled for 23 June 2022, to discuss the findings and outcome of the investigation into the Applicant’s conduct. Despite the Applicant not raising a formal complaint, Mr Marshall intended to provide the Applicant with his findings on the concerns raised against Mr Roy.
(e) The 21 June Letter
On 23 June 2022, a letter dated 21 June 2022 was delivered to Ms Sammut at the premises of the Respondent (the 21 June Letter). The 21 June Letter stated:
Dear Ms. Sammut,
I write due to your recent comments regarding my alleged use of 'inappropriate comment' to you on 09/02/2022.This letter is in accord with advice I have received from my legal advisor.
The statements made by you to a Repco Manager were noted by that person as a written record. I have a copy. I ask that you immediately retract these statements.
You inferred my comments were other than friendly 'quips'.
You referred to an incident supposedly occurring in December 2021 or January 2022. In a series of comments noted by Repco you inferred my comments to you were 'inappropriate' and again clearly insinuated improper behaviour. You again inferred the latter comment was other than a 'quip'. I ask that you immediately retract as well these insinuations.
I consider such insinuations to be defamatory. Your statements falsely represent my actual words and the circumstances.
I take my reputation very seriously. The damage caused by your statements to my reputation may preclude me from attaining another means of income; should I be dismissed from Repco.
To avoid litigation, you must immediately retract your statements. Such litigation will seek from you financial damages together with costs.
Should I be dismissed, loss of income will be added to the above claim.
Within (7) seven days following the receipt of this letter (which I expect to be 23/06/22), I require a written and signed notification of retraction be forwarded to me at the above address.
Additionally, a copy of such retraction must be handed to Repco management.To facilitate the return of your response, I have enclosed a self addressed envelope.
A pro forma response letter is enclosed should you wish to use it. Two copies are provided.
Yours faithfully,
Brian Ellis
[Original emphasis]
I accept the evidence of Ms Sammut that the 21 June Letter affected her “immensely.” Any employee, whether in their early twenties like Ms Sammut or otherwise, would be seriously concerned by a letter in the terms of the 21 June Letter.
(f) Further Investigation after 21 June Letter
Mr Marshall was advised of the 21 June Letter on 23 June 2022. He contacted Ms Curry and discussed that there was an immediate risk to Ms Sammut's health and wellbeing as a result of the Applicant’s actions, and they agreed that the Applicant’s employment should be suspended due to potential victimisation of Ms Sammut.
Mr Marshall spoke to the Applicant, who didn't believe he had done anything wrong. The Applicant was asked to return for a meeting the following day Friday 24 June 2022. Later on 23 June 2022, the Applicant sent two emails to Mr Marshall that suggested that the action being taken against him for his actions towards Ms Sammut were hypocritical given swearing and inappropriate language in the workplace had not been addressed or resolved. The Applicant advised he would attend the meeting on 24 June 2022.
The following day, the Applicant emailed other employees of the Respondent to advise that he would not be attending the meeting on 24 June 2022, as he had been stood down. On 24 June 2022, the Applicant did not attend the meeting. Mr Marshall and the Applicant later spoke on the telephone and Mr Marshall stated that he had found the 21 June Letter intimidating. At the end of that call, Mr Marshall reiterated the importance of the Applicant responding to the allegations and participating in the investigation process. The meeting was re-scheduled for Monday 27 June 2022 and the Applicant agreed to attend.
On Sunday 26 June 2022, the Applicant advised he would not attend the meeting the following day. On 27 June 2022, Mr Marshall spoke with Ms Curry and determined that the Applicant should be issued with the additional allegation in writing relating to the 21 June Letter. That letter was sent on 28 June 2022, requested the Applicant provide a response by Thursday 30 June 2022, and scheduled a meeting with the Applicant on 1 July 2022, which Mr Marshall directed the Applicant to attend.
On 28 June 2022 Mr Ellis responded to the further allegations in writing as follows:
Karen & Gavin,
All except the assertion in the first sentence in the statement 1. I agree is correct. I have every right to request a withdrawal of slanderous comment. I also have a right to legal remedy.
Whomever, chose to use the word "victimisation" will need to explain the use of this term as will Karen need to explain her use of the terms "health and safety " in her email to me of 28/06/22.
Is a Repco client being 'victimised' by virtue of being sent a letter requesting he/she pay their due account? How does a letter requesting the withdrawal of slanderous remarks become a risk to the "health and safety" of the recipient?
Gavin is your "health and safety" and that of Karen in danger due to the receipt of this letter calling you both 'out' for engaging in harassing me? Are you harassing me? Of course not! I do not feel in the slightest that my health and safety are in jeopardy due to you both harassing me.
Utter nonsense! Find whatever you choose to find. Remember Galileo Galilei.
For his heresy in claiming that Earth orbits the Sun, Galileo was sentenced to life imprisonment by the Church in 1633. He was not tortured or executed. He served his sentence under house arrest and died at home in 1642 after an illness.Sounds OK to me.
Brian
Thereafter, the Applicant sent Mr Marshall a further seven emails over the evening and morning of 28 and 29 June 2022, advised that he would not participate further in meetings and that the Respondent was welcome to make any decision it would like. The Applicant did not attend the meeting on 1 July 2022. Mr Marshall telephoned the Applicant, who kept making statements that he felt like he was on trial. Mr Marshall requested the Applicant attend another meeting and advised he would forward a meeting request on 4 July 2022.
After the above conversation the Applicant sent Mr Marshall a further four emails.
After further attempts by Mr Marshall to re-schedule the planned meeting to 5 and 6 July 2022, and numerous emails from the Applicant thwarting those attempts, the Applicant advised Mr Marshall by email on 5 June 2022, as follows:
Gavin, Did I not advise you that I wish for you to post/email/forward a copy of your GPC findings to me? I have nothing more to discuss. I seem to remember during my last email I mentioned my emails to Adam {or you, as the point of contact), if you so wish, all responses to requests from me please be in the written form. Please therefore, advise me in writing of the result of your deliberations and in particular clearly outline your responses to my two (2) requests of Adam.
After consideration of the material gathered during the investigation, and the Applicant’s verbal and written responses provided on 2 June, 3 June and 28 June 2022, and the Applicant’s correspondence generally, the Respondent found the allegations of misconduct substantiated. The Respondent determined that the Applicant’s conduct toward Ms Sammut was bullying and harassment due to their repeated, unreasonable nature and risk to Ms Sammut's health and safety. The Applicant’s conduct was also found to breach the Code of Conduct and the EEO Policy.
On 6 July 2022, Mr Marshall sent the Applicant an email and letter advising that the allegations against him had been substantiated and that GPC had made the decision to terminate his employment effective 6 July 2022 on the grounds of serious misconduct.
(g) The Applicant’s Correspondence Generally
While some of the Applicant’s emails are, where relevant, referred to above, it is notable that the Applicant sent approximately 70 emails to team members of the Respondent in May and June of 2022. The Applicant’s emails disclosed a fixation of the Applicant’s workplace issues, but also disclosed that the Applicant considered the investigation processes as somewhat of a game. As an example, on 1 July 2022, the Applicant sent Mr Marshall four emails within three hours all of which had no relevance to the Applicant’s employment at Respondent and the final email subject was "It is almost nap time so, I will give you a 24 hour break after this."
Applicant’s Submission
The Applicant submitted that he believed he had been poorly treated by the Respondent, and the Code of Conduct is more a moralistic document than an itemized directive of expected behaviour. Items in the Code of Conduct, he submitted, are not defined as the Applicant would expect and the narrative appeared subjective. His ‘crimes’ appeared not to be listed.
The descriptions of the events that led to his dismissal were based partly on perceptive errors, exaggerations of my behaviour; ‘coloured’ statements and the Applicant suspected, possible collusion.
The Applicant submitted he did not say or do as some of Ms. Sammut’s and Mr. Roy’s connotations suggested. The Applicant, incongruously, admitted making the alleged statements to Ms Sammut and Mr Roy but also asserted embellishment.
The Applicant submitted that should he be found to have been harshly treated, unjustly accused or unreasonably dismissed then his reputation needed to be restored and he sought the Respondent be directed to write to those he referred to in his letter of Friday, 22 July 2022.
The Applicant submitted his comments were light-hearted, and to be dismissed for attempting to joke with a fellow employee was unreasonable. Additionally, apart from the damage to his reputation some consideration should be given to the potential two years of lost income and the associated Long Service and Superannuation contributions, as it was his intention to retire on his 85th Birthday.
The Applicant submitted that in his 12 years with the Respondent, he was not once admonished, cautioned or accused of ‘poor’ behaviour.
The Applicant noted that he saw himself as the aggrieved (the victim), yet, it was he who seemed to be the defendant, and he needed to ‘prove innocence’. The Applicant referred to a quote from Chinua Achebe being, “One of the truest tests of integrity is its blunt refusal to be compromised.”
In conclusion, the Applicant recorded his extreme displeasure with being so casually and subjectively described as being “an immediate risk to the health and safety of the complainant”. He claimed that to then be stood down and later dismissed, on what he described as a false premise, was harsh, unjust and unreasonable, and was also a “gross gratuitous liberty”. The Applicant submitted that no response was received to his letter dated Saturday, 4 June 2022 to Mr Marshall seeking an inquiry into Ms Sammut’s allegations.
Respondent’s Submission
The Respondent raised what it described as a jurisdictional objection, being that the Applicant was employed on a casual basis by the Respondent. The Respondent accepted, however, that the Applicant would be considered regular and systematic under the Act, and it did not dispute that the Applicant is eligible to bring a claim in this jurisdiction.
The Respondent submitted that based on the detailed investigation conducted and all of the evidence available, the allegations against the Applicant were substantiated, and constituted valid reasons for termination. The Applicant was accorded procedural fairness throughout that investigation process.
In substantiating the allegations, it was determined by the Respondent that the Applicant’s conduct toward Ms Sammut was bullying and harassment due to the repeated, unreasonable nature and risk to Ms Sammut’s health and safety. The Applicant’s conduct had also breached the Code of Conduct, EEO Policy and s.789 FD of the Act.
The Respondent candidly conceded in their written submission that had the Applicant only have made the comments to Ms Sammut, a decision to terminate the Applicant’s employment would have been disproportionate to the conduct.
The Respondent submitted that the Applicant’s response and reasons for his conduct were insufficient, lacking any remorse or acknowledgment of wrongdoing. The Respondent took this into consideration when determining the outcome.
In conclusion the Respondent submitted that the Applicant’s actions were serious misconduct due to the effect on the safety and welfare of other employees, in particular Ms Sammut, and inconsistent with continuing his employment.
Consideration
(a) Preliminary Matters
I am satisfied that the Applicant is protected from unfair dismissal. Further the dismissal
was not a redundancy and the Respondent is not a small business such that the Small Business Fair Dismissal Code does not apply. Further, the application was made within the time limits prescribed by the Act. I am also satisfied that the Applicant was dismissed from his employment.
While the Respondent raised what it called a jurisdictional objection that the Applicant was a casual employee, they also clearly concede that his employment was regular and systematic, and that he can agitate his claim. There is no substance to the objection that the Applicant was a casual employee.
In determining if the Applicant was unfairly dismissed it is necessary to determine if his dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets out those matters to be considered by the Commission.
Section 387 of the Act states:
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.”
(b) Valid Reason for the Dismissal and Severity of Misconduct (S.387(a) and (h))
To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. However, the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.
In Sydney Trains v Gary Hilder[2] (“Hilder”) the Full Bench summarised the well-established principles for determining such matters[3]:
“The principles applicable to the consideration required under s 387(a) are well
established, but they require reiteration here:(1) A valid reason is one which is sound, defensible and well-founded, and not
capricious, fanciful, spiteful or prejudiced.(2) When the reason for termination is based on the misconduct of the employee the
Commission must, if it is in issue in the proceedings, determine whether the conduct
occurred and what it involved.(3) A reason would be valid because the conduct occurred and it justified termination.
There would not be a valid reason for termination because the conduct did not occur or
it did occur but did not justify termination (because, for example, it involved a trivial
misdemeanour).(4) 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).(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise
to the right to summary dismissal under the terms of the employee’s contract of
employment is not relevant to the determination of whether there was a valid reason for
dismissal pursuant to s 387(a).(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right
to terminate a contract of employment.(7) The criterion for a valid reason is not whether serious misconduct as defined in reg
1.07 has occurred, since reg 1.07 has no application to s 387(a).(8) An assessment of the degree of seriousness of misconduct which is found to
constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant
matter under s 387(h). In that context the issue is whether dismissal was a proportionate
response to the conduct in question.(9) Matters raised in mitigation of misconduct which has been found to have occurred
are not to be brought into account in relation to the specific consideration of valid reason
under s 387(a) but rather under s 387(h) as part of the overall consideration of whether
the dismissal is harsh, unjust or unreasonable.”
As noted above under the heading “Background Facts”, I have found each of the instances of misconduct relied on by the Respondent did occur. Those conclusions are unremarkable because the evidence was unequivocal that the Applicant made the comments to Ms Sammut, acted as he did towards Mr Roy, and sent the 14 May Letter and the 21 June Letter. The Applicant conceded every relevant fact, but urged different conclusions arising from those facts.
The issue regarding valid reason in this matter is therefore not whether the conduct occurred, but whether the conduct of the Applicant justified termination. That consideration arises as a relevant matter pursuant to s.387(h) of the Act. Taken as a whole the five proven allegations collectively justified the summary dismissal of the Applicant. Addressed individually, the 21 June Letter, and the 14 May Letter, justified the termination of the Applicant. I also agree with the Respondent’s submission that had the Applicant only have made the comments to Ms Sammut, a decision to terminate the Applicant’s employment would have been disproportionate to the conduct.
The 14 May Letter was nothing short of an attempt by the Applicant to intimidate Ms Sammut. Describing it as “personal” and written as a “fellow citizen”, does not take it out of the purview of the employment relationship, and the various policies and Code of Conduct that regulates dealings between employees. That is particularly so where it is handed to Ms Sammut at her workstation.
Consideration of the subject matter of the 14 May Letter, being the Letter Incident, focusses attention on what it was that so agitated the Applicant in the Letter Incident. I sought to explore those concerns with the Applicant in the hearing of the matter as follows:[4]
THE DEPUTY PRESIDENT: I'm just trying to understand what the problem is if a sealed letter is placed somewhere, is not picked up and that sealed letter is then returned to you. I'm wondering where the difficulty arises. Can you help me?
MR ELLIS: It wasn't returned to me this way that you seem to be averting, Mr Deputy President. It was actually waved in my face by Mr Roy, saying, 'We're having none of this, we're having none of this', and I'll repeat because he said it three times: 'We're having none of this'.
THE DEPUTY PRESIDENT: Okay, so the problem is not the physical state of the envelope.
MR ELLIS: No.
THE DEPUTY PRESIDENT: The problem is that when it was returned to you how it was returned.
MR ELLIS: That's correct.
THE DEPUTY PRESIDENT: Well, then, how on earth do you make the allegations against Ms Sammut in relation to how there was interference with the correspondence?
MR ELLIS: With due respect, Mr Deputy President, I'm not suggesting there was interference in the sense that I'm understanding that term. I'm referring to the fact that Ms Sammut actually removed the letter itself and then passed it to Mr Roy, rather than giving it to me or the manager.
THE DEPUTY PRESIDENT: But you got it back and it was completely uncorrupted.
MR ELLIS: I did, yes.
THE DEPUTY PRESIDENT: Well, how is it said that she's intercepted another person's mail? She's simply said to Mr Roy, 'Here'. And he gave it back to you and it was not opened. I'm still having problems here - - -
MR ELLIS: Well, I was in the shop that day. I was working that day.
THE DEPUTY PRESIDENT: The problem is not the state of the mail. The problem is how it was returned to you by Mr Roy.
MR ELLIS: Yes, well - - -
THE DEPUTY PRESIDENT: I'm just wondering how you then go on to write the correspondence you wrote to Ms Sammut asserting interception of another person's mail. But anyway, when you do your submissions this is what I want to understand because I'm having the greatest difficulty understanding what the issue was.
In light of that explanation of the Applicant’s concerns, the contents of the 14 May Letter are nonsensical. The correspondence the subject of the Letter Incident had also never entered the postal system, and it is simply fanciful to assert an offence had occurred. The Applicant was clearly seeking to pressure Ms Sammut for reasons that remain undisclosed. Any reasonable employee would understand that conveying a letter in the terms of the 14 May Letter would likely have a serious effect of the recipient’s health and welfare. Sending such a letter justified the Applicant’s termination, particularly where the Applicant had other internal avenues for complaint within the Respondent, particularly emails, which he otherwise used excessively.
The 21 June Letter was an even more egregious act than the 14 May Letter. Again, any reasonable employee would understand that conveying a letter in the terms of the 21 June Letter would likely have a serious effect of the recipient’s health and welfare. But further, the Applicant had been specifically directed in the letter of allegation of 2 June 2022, as follows:
All matters and information relating to this investigation are strictly confidential and you are directed not to discuss them with any other person without my express prior consent. Any failure by you to maintain confidentiality may lead to disciplinary action. Importantly, you are directed not to approach the complainant/s or any other person involved in the complaint. Victimisation includes treating or threatening to treat a complainant less favourably or subjecting them to a detriment. It is also a breach of GPC Asia Pacific policies and will not be tolerated and may result in disciplinary action.
The Applicant blatantly disobeyed the above direction, which in the circumstances of an investigation by an employer can be described as nothing less than a lawful and reasonable direction. The 21 June Letter was a clear attempt by the Applicant to intimidate Ms Sammut into withdrawing her complaints.
Even more insidious is the proximity of the 21 June Letter to the communication to the Applicant of the requirement to attend a further meeting which was scheduled for 23 June 2022, to discuss the findings and outcome of the investigation into the Applicant’s conduct.
I have no hesitation in concluding that the 21 June Letter, or the 14 May Letter, considered individually or cumulatively, constituted conduct of sufficient seriousness to warrant the termination of the Applicant. The Applicant’s conduct breached the Respondent’s Code of Conduct and EEO Policy.
Also constituting a breach of the Respondent’s Code of Conduct and EEO Policy, and so forming another valid reason for termination, were the comments made by the Applicant to Ms Sammut. As noted above, I accept the Respondent’s submission that those comments were not on their own sufficient to justify dismissal, however, in combination with the other valid reasons, those comments added to the gravity of the overall conduct
(c) Procedural Fairness
The issue of procedural fairness raised by the Applicant was that the issue of the comments he made to Ms Sammut were some months old and not acted upon when made. I accept the evidence of Ms Sammut that she advised Mr Wiseman she did not want a confrontation with the Applicant and would rather “rather let it go” as the explanation of why the comments were not acted upon in February 2022.
Otherwise I formally note that the Respondent:
(a) Notified the Applicant of the reason for dismissal (s.387(b)); and
(b) Gave him the opportunity to respond to any allegations (s.387(c)), and allowed him to have a support person present at relevant times (s.387(d)).
The Respondent went to extraordinary steps to engage the Applicant in the various investigation processes, only to be met with repeated refusals to attend meetings from the Applicant. After finally being advised by the Applicant on 5 June 2022, that … “I have nothing more to discuss”, and “Please therefore, advise me in writing of the result of your deliberations and in particular clearly outline your responses to my two (2) requests of Adam”, the Respondent was left with no alternative but to determine their consideration in the absence of the Applicant.
The matter did not involve any concerns about the Applicant’s performance and no warnings had been issued in this regard (s.387(e)). Neither party submitted that the size of the Respondent’s enterprise or its access to human resource management specialists or expertise was likely to impact on the procedures followed in effecting the dismissal.
Conclusion
I have made findings in relation to all matters specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
I do not find that the dismissal of the Applicant was in any way harsh, unjust or unreasonable. Quite the contrary, on the facts as eventually established and conceded by the Applicant, I consider there can be no question regarding the reasonableness of him dismissal.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Ellis, on his own behalf.
Ms Ahmedi, of the Respondent.
Hearing details:
2022.
December 14 and 15.
Sydney.
[1] Transcript PN 114.
[2] [2020] FWCFB 1373.
[3] Ibid at [26]
[4] Transcript PN 806 to 820.
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