Mr David Conlon v Sandlewood Aboriginal Projects Limited
[2017] FWC 3186
•2 AUGUST 2017
| [2017] FWC 3186 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Conlon
v
Sandlewood Aboriginal Projects Limited
(U2017/631)
COMMISSIONER HUNT | BRISBANE, 2 AUGUST 2017 |
Application for an unfair dismissal remedy.
[1] Mr David Conlon has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Sandlewood Aboriginal Projects Limited (Sandlewood) was harsh, unjust or unreasonable.
[2] Sandlewood is an independent non-profit company that provides Cultural Heritage Officers (CHO’s) to companies doing mining or exploration work on land covered by native title. CHO’s perform cultural and heritage surveys when exploration companies wish to conduct exploration on traditional Indigenous lands. Sandlewood employs approximately 15 people.
[3] Sandlewood did not press any jurisdictional objections to the application and the matter was listed for hearing on 7 June 2017. At the hearing Mr Conlon was represented by Mr Jaques Franken, Senior Workplace Relations Advisor of Employee & Executive Protect. Sandlewood was represented by Mr Daniel Pratt, Principal of Franklin Athanasellis Cullen. Leave was granted pursuant to s.596 of the Act for both parties to be represented.
[4] The following people gave evidence and were present at the hearing:
● Mr Conlon;
● Mrs Corinne Lloyd, Manager, Sandlewood;
● Mr Ronald Lloyd, Health and Safety Representative, Sandlewood.
[5] Mr Conlon is a member of the Aboriginal Western Wakka Wakka group. The Western Wakka Wakka group makes up one of the five groups within the BCJWY traditional owner group. The other four groups in the BCJWY traditional owner group are the Barrunggam, Cobble Cobble, Jarowair, and Yiman peoples.
[6] Under the provisions of the Aboriginal Cultural Heritage Act 2003 (Qld) an ‘Indigenous Land Use Agreement (ILUA) was entered into between Sandlewood’s client, QGC Pty Ltd (QGC), and the relevant traditional owners of the land. A Cultural Heritage Management Strategy (CHMS) was implemented.
[7] Each of the five groups making up the BCJWY traditional owner groups is considered a ‘family group’. The representatives of each of the five family groups make up a Cultural Heritage Committee, giving effect to the CHMS.
[8] Sandlewood is the service group selected by the Western Wakka Wakka traditional owner’s group to work with QGC and to employ CHO’s.
[9] It is Mrs Lloyd’s evidence that when a Sandlewood client such as QGC wishes to explore the suitability of relevant land that is owned by traditional owners, it contacts Sandlewood and nominates the relevant traditional owners (e.g. if it is Western Wakka Wakka land or Yiman land). Sandlewood then contacts the coordinator of that relevant group and seeks a list of potential CHO’s who are approved by the relevant family group. Arrangements are then made to employ a CHO who is nominated by the coordinator or traditional owner group.
[10] Clause 27.4 of the contract between QGC and Sandlewood states:
‘23.4 QGC may direct the Consultant to remove from Site any of the Consultant’s Personnel (so as to have no further part in the provision of the Services) that:
(a) misconducts themself;
(b) is incompetent or negligent in the performance of their duties; or
(c) QGC reasonably considers is unsuitable to perform the Services.’
Mr Conlon’s employment history
[11] Mr Conlon had a number of periods of full-time employment with Sandlewood in recent years. Mr Conlon’s engagements with Sandlewood since 2014 were:
(a) 16 August 2014 to 16 January 2015;
(b) 4 June 2016 to 1 July 2016;
(c) 1 July 2016 to 12 January 2017;
(d) 22 December 2016 to 29 March 2017.
[12] In the latest engagement of Mr Conlon, Sandlewood entered into an oral contract with him in June 2016. Mr Conlon performed CHO functions for land operated by QGC, but on land traditionally owned by the BCJWY groups.
[13] On 22 December 2016, Mr Conlon commenced work subject to a maximum employment period up to 29 March 2017 to perform CHO duties for QGC. He had not entered into a written contract for the period when he commenced the work. The employment agreement provides for termination by either party during the term of the agreement by the giving of two weeks’ notice, or in the case of notice by the employer, the payment of two weeks’ wages in lieu of notice.
9 January 2017 meeting
[14] On 9 January 2017, Mr Lloyd travelled to Chinchilla to meet with Mr Conlon and provide to him the written employment agreement. During this meeting he also discussed with Mr Conlon a number of concerns Sandlewood had with Mr Conlon’s work performance and conduct. It is not necessary to deal with those issues here, as Mr Lloyd considered those matters suitably resolved when he communicated by email to Mr Conlon on 12 January 2017.
11 January 2017 emails
[15] On 11 January 2017 at 12.12pm, Mr Conlon sent an email to Mr Greg Blackman, QGC Senior Cultural Heritage Co-ordinator titled, Work Notice – Isabella Sth, 109DY344 – Wells, Access and Gathering. Copied into that email was Ms Siobhan Walker, Senior Cultural Heritage Advisor, QGC Pty Ltd, together with four representatives of the five traditional owner groups. Mr Conlon’s mother is the representative of the Western Wakka Wakka group, and she was copied into this email.
[16] The email is detailed below:
‘Hi Greg
I understand there will be a looming Work Notice issued in relation to the proposed construction of wells, access and gathering against Isabella-Sth (109DY344). With this in mind, it’s my professional opinion that any scheduled works in close vicinity of this area is re-directed back to our Cultural Heritage Committee requesting permission prior to any field work undertaken.
I’ve put together a song and dance about this location due to the compelling cultural providence linking the landscape to tribal ceremonial grounds known as ‘Mallaroo Stone Arrangements’. I have attached for your knowledge the following correspondence already submitted on behalf of the CHO team regarding Isabella-Sth (109DY344).
- Pegging Party Report (11.9.2011) completed by Conrad Bauwens
- Cultural Heritage Identified on site
- Pegging Party Report (5.3.14) – completed by Ivy Bond
- No further CH involvement required
- Final clearance signed off
As noted in the pegging party reports, there a [sic] conflicting testimonials from both CHO’s. What I find most alarming is that the works carried out in a highly sensitive area and no communication between the CHO’s and their committee representatives has been encouraged.
Furthermore, it raises the question in relation to existing QGC infrastructure (#107, #108 + access) that is potentially in breach of the Cultural Heritage Management Strategy (CHMS).
Given the circumstances, I strongly recommend that the above works be delayed until the actions outlined in this email are sanctioned. Alternatively in a worst case scenario, I highly suggest as a minimum that all rostered CHO’s are present during the survey.
Together in the Struggle, David’
[17] Shortly thereafter, at 1.33pm, Ms Walker responded to Mr Conlon’s email. She did not copy in the family representatives to her email. She did, however, copy in Mr Blackman, Mr Alexander Pearce, together with Mr and Mrs Lloyd. The email is as follows:
‘Hi David,
I’m not exactly sure what you are referring to in relation to a ‘looming works notice’ in Lot 109DY344 in Isabella? Perhaps the site that you are referring to is in the adjacent Lot 107DY848? This site is not the Mallaroo stone arrangements. The location of Mallaroo has been confirmed and surveyed on the ground and is located in Kenya East, nearly 50km away from Isabella. The site you are possibly referring to that is within Lot 107DY848, if you click on the info button in Map Magic, clearly states that ‘Malara 1’ is an ‘estimated location’ of a potential sites, drawn from 1987 DASIMA records. The DATSIMA site card has no information other than an ‘unknown’ recorder and an ‘estimated GPS location’. The ‘estimated location’ is also around 100m outside of any survey corridor. Secondly, the only construction works that are occurring in that Lot on Plan (109DY344) is gather, - also visible in Map Magic if you want to look yourself, which is over 600m away from the ‘estimated location’ of Malara 1. This work has not yet been scheduled.
Clearly the surveys conducted in 2011 and 2014 did not find any evidence of any stone arrangements at the time and I am satisfied with the recommendations provided, unless you have additional information pertaining to the ‘compelling cultural providence linking the landscape to tribal ceremonial grounds known as ‘Mallaroo Stone Arrangements” which we have not been provided with.
Furthermore, the committee has been given detailed maps of all the proposed Sustaining wells program. In the previous meeting, the committee has authorised me to meet with the technical advisor to review the scope and locations of infrastructure in relation to this program of work. This program was only sanctioned by the business in December, and has a reduced scope. Now that sanction has occurred, budget released, and the locations more certain, I will be proceeding with this in the coming weeks. This will then be taken to the committee, along with recommendations, for review.
However, we are happy to accommodate including all rostered on CHOs in the monitoring of the work in Isabella, when it is scheduled, if required.
Regards,
Siobhan Walker
Senior Cultural Heritage Advisor’
[18] Not long after, at 2.49pm, Mr Conlon responded to Ms Walker’s email. Mr Conlon copied in four of the five family group representatives, together with Mr Blackman, Mr Pearce and Mr and Mrs Lloyd. The email is as follows:
‘Thanks for your prompt response.
I acknowledge in writing the email below my recollection of the area known to QGC as Isabella was in fact the esoteric knowledge belong to the ceremonial grounds at Malara1. So without flooding the streams with cultivated revelations. I standby the compelling cultural providence linking the landscape to tribal ceremonial grounds known as ‘Malara1 Stone Arrangements” However on this occasion, I stand corrected by the way mistaken the two names in the email below.
On reflection to past dealings with our committee, I remain optimistic that the interaction in Decembers was as comprehensive and precise as the feedback I received. In spite of the misunderstanding, I’m pleased to know that a technical advisor will be engaged to further examine the area in question.
The cultural heritage team looks forward to connecting with country on and around Isabella-Sth (109DY344).
Together in Solidarity, David’
QGC direction to Sandlewood
[19] It is Mrs Lloyd’s evidence that at approximately 10.00am on 13 January 2017, Ms Walker telephoned her to advise Sandlewood would be receiving a letter on the same date. Ms Walker would not elaborate as to what the letter would state.
[20] At approximately 5.00pm on 13 January 2017, Ms Walker again telephoned Mrs Lloyd and advised the letter had just been sent. She requested Mrs Lloyd read the letter and telephone her back.
[21] The letter is reproduced below:
‘Dear Corinne,
Re: Your employee: David Conlon
I refer to our telephone discussion on 13 January 2017 regarding your employee David Conlon who is employed by Sandlewood as a contractor based at QGC’s Kenya Office.
As discussed, on 11 January 2017 at 12.12.pm, Mr Conlon (without QGC’s consent) emailed copies of documentation belonging to QGC to various third parties. The documentation contained information of a nature that was confidential to both QGC and to a third party (Confidential Information). The actions by your employee:
1. are in breach of WGC’s policies regarding Confidential Information which were communicated in the Ethical Conduct and Information Security Training provided to and completed by Mr Conlon;
2. have caused Sandlewood to be in breach of the Confidentiality provision of the Consultancy Agreement between QGC and Sandlewood; and
3. may have caused QGC to breach its agreement with the third party whose Confidential Information was disclosed.
Mr Conlon would have known, or ought to have reasonably known, that the information disclosed was Confidential Information. As such, QGC considers this a serious breach of its Code of Conduct.
The disclosure of Confidential Information follows a pattern of behaviour by Mr Conlon which we understand resulted in Sandlewood meeting with Mr Conlon on 9 January 2016 to follow-up on the following complaints by QGC staff:
1. a complaint regarding Mr Conlon’s conduct on a pegging party whereby Mr Conlon elected not to participate in a survey, left the survey team and returned to his vehicle without communicating with the survey team leader or anyone else where he was going or what he was doing; and
2. a complaint regarding Mr Conlon’s unauthorised access of the workspace of a QGC staff member.
In light of the above, QGC considers Mr Conlon’s presence at QGC premises to be a security risk and accordingly asks that Sandlewood take steps to ensure that Mr Conlon’s access to QGC’s premises is revoked and all property belonging to QGC is immediately returned.
We look forward to hearing from you.
Regards,
QGC Pty Limited’
[22] Mrs Lloyd read the letter and when she telephoned Ms Walker, she was told that Mr Conlon’s services were ‘no longer required’. While Mrs Lloyd and Mr Lloyd had been copied in to the emails of 1.33pm and 2.49pm on 11 January 2017, neither Mrs nor Mr Lloyd comprehended that these were the relevant emails regarded by QGC as revealing confidential information to third parties. In fact, Mrs Lloyd did not realise this information until days before the hearing of this application. 1
[23] During the telephone conversation, Mrs Lloyd informed Ms Walker that she and Mr Lloyd would travel by vehicle to Chinchilla the next day – a Saturday - so that a meeting could occur and Mr Conlon’s situation could be discussed.
[24] Mr Conlon did not have a mobile phone, so Mrs Lloyd sought to contact other CHO’s and request that they inform Mr Conlon to urgently make contact with Mrs Lloyd. Mr Conlon returned Mrs Lloyd’s telephone call at approximately 6.30pm.
[25] During the telephone call Mrs Lloyd informed Mr Conlon that Sandlewood had received a letter from QGC stating that he had breached QGC’s Code of Conduct and therefore his services as a CHO would no longer be required by QGC. Mrs Lloyd said to him that the letter mentioned Mr Conlon had sent confidential information. Mr Conlon responded, “What, sending emails to my mother?”
[26] Mrs Lloyd informed Mr Conlon that Sandlewood did not have any other work for him, and the decision by QGC was out of Sandlewood’s control. She informed him that she and Mr Lloyd would travel to Chinchilla the next day and meet with QGC and Mr Conlon to ‘hopefully amicably resolve the issue’.
[27] Mr Conlon disputes that Mrs Lloyd assured him she would be attending the next day in an effort to resolve the issue. He considered that his employment was terminated. He understood that Mr and Mrs Lloyd were coming from Brisbane to meet with him and formally terminate his employment and take the employer’s belongings from him. Mr Conlon’s evidence is that Mrs Lloyd instructed him to pack up his personal items.
[28] Mrs Lloyd directed Mr Conlon to meet her and Mr Lloyd at 11.00am the next day at the QGC Kenya office. Mr Conlon agreed he would attend the meeting.
[29] Mrs Lloyd then contacted Ms Walker and confirmed the meeting with her. The meeting would be between Ms Walker, Mr and Mrs Lloyd, Mr Conlon and Mr Blackman.
Saturday, 14 January 2017
[30] At approximately 5.30am on 14 January 2017, Mr and Mrs Lloyd left Brisbane and travelled to Chinchilla.
[31] Mr Conlon’s evidence is that he was to meet with Mr and Mrs Loyd at 11.00am at the Kenya office. He had not wished to meet at the Kenya office, as other Cultural Heritage Officers would be there and he considered he would be ‘shamed’. His preference was to meet with Mr and Mrs Lloyd at the Chinchilla office.
[32] It is not clear why, but Mr Conlon arrived at the Kenya office at 7.00am. Mr Conlon’s evidence is that he had planned to wait at the Kenya office for Mr and Mrs Lloyd to attend at 11.00am. 2 He was refused entry by security. Mr Conlon then travelled to the Chinchilla office. Mr Conlon made inquiries of his family group as to what to do next, and he was advised not to hand in keys and swipe passes. He informed Mr Blackman he was departing for Brisbane.
[33] On Mr and Mrs Lloyd’s attendance at the Chinchilla office at approximately 9.30am, Mr Blackman informed them that Mr Conlon had departed for Brisbane earlier that morning.
[34] Mr and Mrs Lloyd met with Ms Walker and Mr Blackman, together with Mr Pearce of QGC. Mrs Lloyd’s evidence is as follows: 3
‘We had the meeting with Ms Walker and Mr Blackman, (which also included teleconferencing in Mr Alex Peace of QGC). The respondent's client (QGC/Shell) confirmed that the applicant had breached its Code of Conduct by allegedly sending QGC/Shell's confidential information to a third party without permission or authority. QGC/Shell informed the respondent that a breach of their Code of Conduct, specifically releasing confidential information to a third party, was a very serious matter in their view and one that would not be tolerated.
We asked QGC/Shell to consider allowing the respondent to issue the applicant with a final warning letter and also attend refresher training in Ethical Conduct and Information Security. QGC/Shell refused and reiterated to us that the applicant's services as a CHO were no longer required by it. Ms Walker finished the meeting by emphasising that Shell/QGC's decision was final and there was nothing that could be done to reverse it.
There wasn't any way we could force Shell/QGC to allow the applicant on its site. Shell/QGC was entitled to exclude the applicant, even if we didn't agree with that course of action in the circumstances. The respondent was obliged by the contract between it and QGC to remove the applicant from site. We certainly didn't want to dismiss the applicant and we tried very hard to change Shell/QGC's mind about its decision because we knew we had no other work for the applicant (discussed below).
At the conclusion of the meeting on site at QGC office, Chinchilla, Ron and I returned to Brisbane and with the understanding the applicant would contact us. However, the next we heard from the applicant was when he filed this application.’
[35] It is Mr Lloyd’s evidence that he challenged Ms Walker as to whether Mr Conlon had completed QGC’s Code of Conduct training. Ms Walker replied that he had. Mr Lloyd proposed that Sandlewood be allowed to issue to Mr Conlon a first and final warning instead of terminating his employment, as Sandlewood could not offer him any work. It is Mr Lloyd’s evidence that Ms Walker was not going to change her mind, and therefore Mr Conlon would be prevented from attending on the premises controlled by QGC (despite him being part of the traditional owners of the land).
Alternative work
[36] Mr Conlon’s evidence is that he would have expected QGC and the family group representatives to have gone through the dispute resolution process under the CHMS enacted between QGC and the traditional owner group. However this action appears not to have been instigated at the time of the dismissal or even months thereafter.
[37] Mr Conlon attended Sandlewood’s administrative office in Brisbane several days later. He says he was met by ‘Johnboy’, a gentleman who he thinks works in the payroll office. There was a brief conversation between Mr Conlon and ‘Johnboy’. Mr Conlon was not issued with a termination letter.
[38] When questioned by me as to where Sandlewood could have placed Mr Conlon if QGC would not allow him back on the premises controlled by them, Mr Conlon answered that he would have been happy to work in Sandlewood’s office in Brisbane doing administrative work. 4
[39] I questioned Mr Conlon if he could have worked anywhere else, and he answered as follows: 5
‘Well you can’t, I can’t go walking on other people’s country, that’s for sure, so I couldn’t be able to do cultural heritage work on any other agreements that they might have with traditional owner groups.’
[40] Mr Conlon’s preference was to return to perform cultural heritage work at QGC as he considered QGC did not have justification for letting him go.
[41] In closing submissions, Sandlewood agreed that it should have paid to Mr Conlon two week’s wages in lieu of notice. It made an undertaking to do so in the course of the proceedings. 6
[42] As to whether there was other work Sandlewood could have placed Mr Conlon in after he was prohibited from working at QGC, it was submitted: 7
‘Mr Conlon was a very unique peg for an absolutely unique hole. There was no redeployability whatsoever. He was unable to be redeployed to any other area that Sandlewood was working on because it wasn't working on any other Western Wakka Wakka land. The evidence is, of course, that Mr Conlon himself admitted he can't do cultural heritage officer work on another native title holder's land, and there was no such work. There was no other work other than the work Mr Conlon was doing on QGC's site that the respondent had available for him.’
Consideration
[43] I must consider whether the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
‘387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.’
[44] The ambit of the conduct which may fall within the phrase “harsh, unjust or unreasonable” was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows: 8
‘.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’
[45] I am under a duty to consider each of these criteria in reaching my conclusion.9
[46] I will now consider each of the criteria at s.387 of the Act separately.
Valid reason - s.387(a)
[47] Sandlewood must have a valid reason for the dismissal of Mr Conlon, although it need not be the reason given to the applicant at the time of the dismissal.10 The reasons should be “sound, defensible and well founded”11 and should not be “capricious, fanciful, spiteful or prejudiced.”12
[48] Mr Lloyd met with Mr Conlon on 9 January 2017 to discuss some concerns regarding complaints received from QGC. I am satisfied that during that meeting, and as is demonstrated in the email from Mr Lloyd to Mr Conlon on 12 January 2017, Sandlewood considered those matters suitably resolved.
[49] It would appear, however, that QGC did not; notably Ms Walker. When Mr Conlon sent an email on 11 January 2017 to QGC and family group representatives of the traditional owners, Ms Walker considered this to be an unacceptable act, and a breach of QGC’s Code of Conduct.
[50] Ms Walker’s letter to Sandlewood of 13 January 2017 makes it clear that not only the act of sending ‘confidential information’ in an email to third parties was abhorrent to QGC, there was still a considerable amount of upset relevant to the matters Mr Lloyd had met with Mr Conlon and considered settled.
[51] Ms Walker’s letter to Sandlewood was clear; Mr Conlon would not be allowed access to the premises controlled by QGC. Mr Lloyd’s evidence is that at the meeting the following day, Ms Walker was similarly adamant that Mr Conlon would not be permitted to continue performing work at QGC.
[52] Helpfully there are very recent decisions of the Commission to assist in the determination of this matter as to whether there existed a valid reason to dismiss Mr Conlon based on the direction given by QGC to prevent Mr Conlon accessing the premises in QGC’s control.
[53] In Kool v Adecco Industrial Pty Ltd T/A Adecco 13, Asbury DP considered the responsibilities of a labour hire employer where its client, Nestle instructed Adecco not to allow Ms Kool to return to perform work at Nestle. The Deputy President concluded:14
‘However, the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such relationships to abrogate their responsibilities to treat employees fairly. If actions and their consequences for an employee would be found to be unfair if carried out by the labour hire company directly, they do not automatically cease to be unfair because they are carried out by a third party to the employment relationship. If the Commission considers that a dismissal is unfair in all of the circumstances, it can be no defence that the employer was complying with the direction of another entity in effecting the dismissal. To hold otherwise would effectively allow labour hire employers to contract out of legislative provisions dealing with unfair dismissal.’
[54] In considering whether Adecco had a valid reason to dismiss Ms Kool, the Deputy President found: 15
‘If I accept Ms Coyne’s witness statement as being a true and correct version of events, it is apparent that Ms Coyne simply acquiesced in the removal of Ms Kool from the Nestle site in circumstances where she had no independent view that there was any issue with Ms Kool’s capacity or conduct. There is no evidence of any independent attempt on the part of Ms Coyne or any Adecco manager, to verify whether there was a valid reason for the removal of Ms Kool from the Nestle site, in circumstances where Ms Coyne’s statement makes it clear that Ms Coyne knew that the reason for Ms Kool being removed from the site was allegations about her conduct. I do not accept that Adecco has established that there was a lack of alternative placements for Ms Kool or that she unreasonably refused an alternative placement so that it could be said that this constituted a valid reason for dismissal.
Accordingly I am satisfied and find that there was no valid reason for Ms Kool’s dismissal related to her capacity or conduct.’
[55] In Pettifer v MODEC Management Services Pty Ltd 16, a Full Bench of the Commission determined:17
‘Whilst Mr Pettifer asserts that he was dismissed because of his conduct, namely his involvement in an alleged ‘near miss’, we do not consider his conduct was the reason for his dismissal. MODEC was clearly prepared to place Mr Pettifer elsewhere in its operations but could not find a position for him. While the evidence indicates that BHPB had concerns over Mr Pettifer’s conduct and elected to exercise its contractual right to direct MODEC to remove Mr Pettifer from the BHPB Site, this was not the reason why MODEC dismissed Mr Pettifer. That dismissal occurred because Mr Pettifer did not have the capacity to perform the duties which he was engaged to perform and could not be redeployed elsewhere by MODEC.’
[56] Having examined the contract between MODEC and its client, BHPB, the Full Bench found: 18
‘MODEC was therefore contractually obliged to remove Mr Pettifer from the BHPB Site if instructed to do so. This was the role which Mr Pettifer was employed to perform. No longer capable of performing the inherent functions of this role, MODEC sought to find alternative employment for Mr Pettifer. Only after exhausting these inquiries did MODEC rely on this reason to terminate Mr Pettifer’s employment. In these circumstances the Full Bench is satisfied that MODEC had a valid reason relating to Mr Pettifer’s capacity to terminate his employment and only exercised this reason because it genuinely was unable to find suitable alternative employment for him.’ (citations omitted)
[57] More recently in Tasmanian Ports Corporation Pty Ltd t/a Tasports v Mr Warwick Gee 19, a Full Bench of the Commission upheld a decision of Wells DP finding that Tasports essentially acquiesced to its client in determining that its employee, Mr Gee could no longer perform work on its clients’ premises. Further, Tasports did not undertake relevant inquiries with Mr Gee before dismissing him, and did not adequately attempt to source alternative employment for him, despite being a reasonably large employer.
[58] In written submissions, Sandlewood suggested the following test could be used having regard to the relevant authorities:
(a) Did the relevant host company validly exercise a contractual right to exclude the applicant from the site by which the respondent was bound;
(b) Did the respondent simply acquiesce and dismiss without question based on the conduct allegations made by the host company (and thereby effectively dismiss for the conduct reasons stated by the host company);
(c) Did the respondent genuinely exhaust options for alternative work and dismiss because no alternative work existed, as opposed to adopting the conduct-based reasons stated by the host company and not looking seriously at alternatives to termination.
[59] As is clear from the above authorities, where a host company may have conduct-related concerns with respect to an employee, and inform the employer the worker is no longer permitted on the premises, the matter for consideration for the employer may not be conduct of the employee, but capacity to continue to employ the employee.
[60] Upon learning that an employer can no longer place its employee in the premises of its client, and where the employer is satisfied after having conducted relevant inquiries that the alleged conduct is not an impediment to continued employment, an employer should exhaust all avenues to source other roles for the employee.
[61] While I do not agree that Mr Conlon was employed exclusively by Sandlewood as a CHO at QGC only, he was for all intents and purposes employed to perform work for QGC as a CHO with funding for the role having been paid to Sandlewood by QGC. In a non-profit organisation of only 15 employees, with a small administration team, roles in the field are paid for by clients of Sandlewood. There is no capacity for Sandlewood to continue to fund a field employee without payment from a client.
[62] It is a very unfortunate turn of events that Ms Walker on behalf of QGC took such an alarmist approach to the email sent by Mr Conlon on 11 January 2017. Without regard for Mr Conlon’s workplace rights or in fact the cultural sensitivity around the email sent by him and his views that it was culturally appropriate for him to have included email recipients into the email, Ms Walker’s letter dated 13 January 2017 spelled the end of Mr Conlon performing work at QGC. Ms Walker also included in her letter to Sandlewood continued concern regarding issues that Sandlewood considered resolved.
[63] To add further insult, Ms Walker concluded that Mr Conlon posed a security risk to QGC. It is not clear why Ms Walker felt this was necessary to include in the letter to Sandlewood, particularly when on Mrs Lloyd’s evidence, Ms Walker agreed on the afternoon of 13 January 2017, after sending the letter, to meet with Mr and Mrs Lloyd on 14 January 2017, together with Mr Conlon.
[64] Even more disturbingly, Mr Lloyd’s evidence is that Ms Walker made a decision on 14 January 2017 that she had not intended on meeting with Mr Conlon at all. Despite Mr and Mrs Lloyd doing all that was reasonable and within their control, they could not convince Ms Walker that Mr Conlon should be afforded a further opportunity. It is, on the face of it, extraordinary conduct from somebody in the role of Senior Cultural Heritage Advisor, dealing with traditional owners, especially where the traditional owner groups nominate eligible group members to be CHO’s.
[65] I am satisfied that on the evening of 13 January 2017, Mrs Lloyd informed Mr Conlon on the telephone that he would need to pack his belongings and finish up at QGC due to the decision of QGC to prevent him from working there.
[66] I am satisfied Mrs Lloyd informed Mr Conlon that she and Mr Lloyd would be driving the next morning to meet with QGC to hopefully have them change their decision. I do not accept that Mrs Lloyd, together with Mr Lloyd planned to make a day’s round journey only to effect a termination on Mr Conlon. Ms Walker had, at this stage agreed to participate in a meeting with Mr and Mrs Lloyd. Sandlewood hoped it could salvage the situation; not only to continue to receive funds for a placed field role, but to continue Mr Conlon’s employment relevant to an issue that Mr and Mrs Lloyd did not comprehend at the time.
[67] While it should have been apparent to Mr and Mrs Lloyd that the concern QGC had was the emails sent by Mr Conlon on 11 January 2017, it was lost on them in the rush to travel to Chinchilla, and the conduct of Ms Walker. It is inexplicable that Ms Walker played coy with Mr and Mrs Lloyd as to the relevant email QGC found offensive. If Mr and Mrs Lloyd, together with Ms Walker had taken the time to read the letter dated 13 January 2017 slowly, it should have then been clear that the concern held by QGC was the emails to which Mr and Mrs Lloyd had already been copied in to. For Ms Walker to continue to refuse to discuss the relevant ‘offensive’ email with Mr and Mrs Lloyd defies common sense.
[68] I am satisfied that on 14 January 2017, Mr and Mrs Lloyd did their very best to try and salvage Mr Conlon’s placement at QGC. They were, however, met with a brick wall in Ms Walker. It would have made for a disappointing four hour drive home to Brisbane.
[69] In the context of the contractual terms between Sandlewood and QGC, and the effort to resist QGC’s demand that Mr Conlon not return to QGC’s premises, I am satisfied there existed a valid reason for ending Mr Conlon’s employment at QGC as a CHO.
[70] However, it was incumbent on Sandlewood to continue discussions with Mr Conlon on 14 January 2017 and later as to its efforts to allow him to continue working at QGC, and when that had failed, any other work Mr Conlon might have been able to perform for Sandlewood. Surprisingly, and despite the honourable and substantial effort Mr and Mrs Lloyd had made up until 14 January 2017, Sandlewood failed to have further discussions with Mr Conlon. There is no explanation for why no further contact was made with Mr Conlon, or why he was not paid two weeks’ notice on termination.
[71] It would have been appropriate for Sandlewood to have contacted Mr Conlon on the following Monday and invited him to the Brisbane administration office to hold further discussions with him. Mr Conlon had a right to understand if Sandlewood could place him in other roles.
[72] I accept the evidence that Mr Conlon was not able to be placed into other CHO roles, as he is limited to roles on Western Wakka Wakka land. Sandlewood did not have any other clients with roles available for Western Wakka Wakka people.
[73] While Mr and Mrs Lloyd may have instantaneously decided that there were no roles available to Mr Conlon, there existed a duty to discuss with Mr Conlon the capacity of Sandlewood to place him in continued employment.
[74] I have no doubt that during the week of 16 January 2017, a conversation with Mr Conlon would have ultimately determined that Sandlewood did not have any roles available for Mr Conlon. However that opportunity was not ever provided to Mr Conlon. There was no regard to Sandlewood’s capacity or Mr Conlon’s capacity. If Mr Conlon’s employment was still in place, he may have, in the week following, caused some doubt in Sandlewood’s mind as to the validity of QGC’s directions based on the dispute procedures within the CHMS. This avenue was not explored, and the employment effectively came to an end most likely on 14 January 2017 when Sandlewood concluded that it could do no more to salvage Mr Conlon’s position at QGC.
[75] Accordingly, while I am satisfied Sandlewood did all it could do to try and convince QGC that Mr Conlon should continue in his role, at the time of the dismissal, I am not satisfied there existed a valid reason for the dismissal. Mr Conlon was owed a right to a discussion in the days and week following, and an opportunity to canvass if any other roles existed that he could perform. Only if that conversation resulted in a conclusion that Sandlewood did not have available other roles for Mr Conlon would that constitute a valid reason for the dismissal.
Notification of the valid reason – s.387(b)
[76] It is not helpful that Mr Conlon abandoned the meeting of 14 January 2017. If he had been present at the Kenya office at 11.00am as planned, discussions could have eventuated. If QGC had not participated in those discussions, or Mr Conlon was not permitted from entering the QGC premises, I am satisfied Mr and Mrs Lloyd would have met with Mr Conlon off-site given the substantial effort they took on a Saturday to try and resolve the issue.
[77] Nevertheless, Sandlewood failed to have further discussions with Mr Conlon and failed to consult with him as to whether they might be opportunities to continue his employment.
Opportunity to respond – s.387(c)
[78] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 20
[79] Mr Conlon did not make himself available on 14 January 2017. However, Sandlewood then failed to contact Mr Conlon in the week commencing 16 January 2017. I am satisfied there would have been discussions as to the actions of QGC, and the parties’ views on the validity of QGC to have acted in the manner that it did. Discussions would have thereafter turned away from Mr Conlon’s alleged conduct to the capacity to continue to employ Mr Conlon. Due to Sandlewood’s failure to communicate with Mr Conlon, this did not occur.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[80] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[81] Mr Conlon was not offered the opportunity of a support person during the telephone call with Mrs Lloyd, but neither did he request a support person. The legislative test is whether a request to allow a support person was refused. In this case it was not.
Warnings regarding unsatisfactory performance - s.387(e)
[82] While Mr Conlon may consider the dismissal was due to conduct reasons, ultimately it was not; it was the capacity of Sandlewood to continue to employ him where it could no longer place him in the role he had been fulfilling.
[83] In this instance, it is not necessary to have regard to this criteria.
Impact of the size of the Respondent on procedures followed - s.387(f); and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[84] Sandlewood is a small business employing approximately 15 employees at the time of the dismissal. It follows that the business has an absence of a dedicated human resources management or any expertise.
Other relevant matters - s.387(h)
[85] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I do not consider there are any other relevant matters to consider in the determination of whether the dismissal of Mr Conlon was harsh, unjust or unreasonable.
Conclusion
[86] Taking into account the above considerations, and notwithstanding the size of the business and the absence of dedicated human resources management specialists, I find that Mr Conlon’s dismissal was harsh, unjust and unreasonable.
Remedy
[87] Section 390 of the Act reads as follows:
‘390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.’
[88] Mr Conlon is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Mr Conlon does seek reinstatement, however I am satisfied that reinstatement is inappropriate for the following reasons.
[89] In Smith v Moore Paragon Australia Ltd 21, a Full Bench of the Australian Industrial Relations Commission considered the principles which apply to the question of whether reinstatement is an appropriate remedy in circumstances where an employee’s incapacity is due to ongoing illness or injury. The Full Bench stated:22
‘The weight to be accorded to ongoing incapacity on the part of an employee when considering whether reinstatement pursuant to s 170CH(3) is appropriate will depend upon all the circumstances of the case. However, when considering whether reinstatement is appropriate for an employee who has an ongoing incapacity arising from illness or injury, the guiding principle ought be that generally reinstatement of a materially incapacitated employee will not be appropriate where:
- further performance of the employee’s contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment;
- reinstatement would involve imposing a material future productivity burden or some other unreasonable burden on the employer; or
- reinstatement would impose an unreasonable burden on other employees.
Exceptional circumstances would be necessary before reinstatement could properly be regarded as appropriate in such cases.
Reinstatement will involve a material future productivity burden on an employer when the employee cannot be fully or substantially fully productive within the ambit of the employee’s substantive position.’
[90] In this case Mr Conlon’s incapacity does not relate to an illness or injury but rather due to his inability to enter the premises on which he is required to perform his duties because of a prohibition placed on him by a third party, QGC. Mr Conlon’s incapacity may be for different reason, however in my view, the principles pertaining to reinstatement and incapacity in Smith equally apply in this case.
[91] On the evidence before the Commission, Mr Conlon could only be placed as a CHO at QGC, and he is prohibited by QGC from entering the premises under its control. Sandlewood does not have contracts with any other organisation where work is performed on Western Wakka Wakka land. I am satisfied that there is no capacity to return Mr Conlon to work at Sandlewood.
Compensation
[92] Section 392 of the Act provides:
‘392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.’
Authorities
[93] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket23. That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey24; Jetstar Airways Pty Ltd v Neeteson-Lemkes25 and McCulloch v Calvary Health Care26 (McCulloch).
[94] I have had regard to the above authorities.
The effect of the order on the viability of Sandlewood
[95] There was no evidence or submissions put to the Commission dealing with this issue.
The length of Mr Conlon’s service
[96] Mr Conlon had been employed for a period of approximately 14 months over a 2.5 year period. The latest period of employment was approximately seven months.
The remuneration that Mr Conlon would have received, or would have been likely to receive, if he had not been dismissed
[97] Mr Conlon was employed pursuant to a maximum term contract, due to expire on 29 March 2017.
[98] Having determined that QGC had a contractual right to demand Mr Conlon’s removal, and despite Sandlewood’s resistance, Mr Conlon’s employment would have continued for no greater than one week. This would be the maximum period of time it would have taken for a discussion in Brisbane to occur and to investigate any other opportunities within Sandlewood that Mr Conlon could have performed.
[99] Having satisfied itself that there were no roles for Mr Conlon, the employment would have been lawfully ended by no later than 20 January 2017, and then by the giving of two weeks’ notice of termination.
The efforts of Mr Conlon (if any) to mitigate the loss suffered because of the dismissal
[100] Mr Conlon secured other work, but understandably, not within the first week of the dismissal.
The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[101] Mr Conlon did not receive any remuneration from any other source in the week following the dismissal, which is the period I consider he would have continued in employment.
The amount of any income reasonably likely to be so earned by Mr Conlon during the period between the making of the order for compensation and the actual compensation
[102] This factor is not relevant in the circumstances of this matter.
Other relevant matters
[103] I have had regard to the failure of Sandlewood to contact Mr Conlon, and the harshness this had on the manner in which his dismissal was effected. I have further regard to the fact that Sandlewood had not made payment to Mr Conlon of his two weeks’ notice period at the time of the hearing, but for which it provided appropriate undertakings to do so.
Misconduct reduces amount
[104] Section 392(3) requires that if the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.
[105] The section requires that consideration be given by the Commission to whether misconduct contributed to the decision to dismiss an employee even where it has been found there was no valid reason for the termination.27 The absence of a valid reason may be relevant to the appropriate amount by which compensation should be reduced.28
[106] I have found earlier that a valid reason for dismissal did not exist. Mr Conlon was not dismissed by Sandlewood for misconduct, nor would I accept that Mr Conlon engaged in misconduct by sending the relevant emails that he did on 11 January 2017. While it may have been a cause of concern to QGC, it does not constitute misconduct.
Shock, distress etc. disregarded
[107] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Conlon by the manner of the dismissal.
Compensation Cap
[108] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.
[109] The amount of compensation the Commission will order does not exceed the compensation cap.
Payment by instalments
[110] Sandlewood is a relatively small business, however submissions have not been made relevant to this issue. In any event the amount to be ordered is a modest amount, and it should not cause Sandlewood difficulty in meeting the order.
Order of compensation
[111] I have determined that Sandlewood is to pay to Mr Conlon the amount of two weeks’ compensation at the rate of $1,200 per week, that being an amount of $2,400 less tax as required by law. In addition, Sandlewood is to make payable to Mr Conlon’s superannuation calculated at 9.5% of $2,400.
COMMISSIONER
1 PN953 – PN955.
2 PN154.
3 Statement of Corinne Lloyd at [26]-[29].
4 PN623.
5 PN626.
6 PN1439.
7 PN1344.
8 [1995] HCA 24; (1995) 185 CLR 410 at 465.
9 Sayer v Melsteel[2011] FWAFB 7498 at [20].
10 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
11 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
12 Ibid.
13 [2016] FWC 925.
14 Ibid at [49].
15 Ibid at [72]-[73].
16 [2016] FWCFB 5243.
17 Ibid at [25].
18 Ibid at [37].
19 [2017] FWCFB 1714.
20 RMIT v Asher (2010) 194 IR 1, 14-15.
21 (2004) 130 IR 446.
22 Ibid at [51]-[52].
23 (1998) 88 IR 21.
24 [2013] FWCFB 431.
25 [2014] FWCFB 8683.
26 [2015] FWCFB 2267.
27 Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762 [83].
28 Ibid.
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