Mr Dimitri Matolov v UWS College Pty Limited T/A UWS College
[2011] FWA 2689
•31 MAY 2011
[2011] FWA 2689 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Dimitri Matolov
v
UWS College Pty Limited T/A UWS College
(U2010/13291)
COMMISSIONER MACDONALD | SYDNEY, 31 MAY 2011 |
Application for unfair dismissal - application dismissed
[1] This decision arises from an application by Mr Dimitri Matolov (the applicant) pursuant to section 394 of the Fair Work Act (the Act) for a remedy in respect of his dismissal by UWS College Pty Limited (the respondent).
[2] The dismissal was for inappropriate behaviour and the dismissal was with immediate effect per letter of 1 October 2010 and signed by Dr Kerry Hudson, Chief Executive Officer.
[3] The unfair dismissal application was lodged with Fair Work Australia (FWA) on 13 October 2010.
[4] The unfair dismissal file was dealt with by an FWA conciliator but did not settle. The hearing took place before myself on 7 and 8 February 2011.
[5] The applicant represented himself. The applicant filed a witness statement and gave evidence. He called one witness:
Lynne Ward - English teacher
[6] The respondent was represented by a solicitor, Mr J Mattson who was granted leave to appear by myself, pursuant to section 596 of the Act. The applicant opposed the appearance of legal representation for the respondent.
[7] Mr Mattson called a number of witnesses:
Danielle Wilcock | - Manager, Organisational Development |
Peter Harrison | - Manager Adult Migrant English Program |
Denise Moses | - Education Co-ordinator |
BACKGROUND
[8] The applicant was employed by the respondent on 13 December 2004 as an English teacher in the Adult Migrant English Program (AMEP). The AMEP operates under a contract to the Australian Government. The AMEP is part of a settlement program funded by the Australian Government to deliver English skills to newly arrived migrants and refugees. The contracts that the respondent has with the Australian Government are for fixed terms and the respondent has to re-tender to obtain a further contract. The applicant was initially employed as a casual and in 2006, became engaged on the basis of a fixed term contract (as were the other staff). In October 2008, the applicant was promoted to the position of Education Co-ordinator and became part of the Centre Management Team.
[9] The case against the applicant, by the respondent, is that he engaged in inappropriate behaviour with fellow staff. The inappropriate behaviour was said to be using a loud voice, banging his hand on a table at meetings, being aggressive, dominating meetings and engaging in heated discussions. This behaviour was detailed by the respondent to have occurred from 2008 until the time of his dismissal.
[10] The applicant refuted the foregoing claim. He said he had brought inappropriate practices by certain members of staff to the attention of management and management had engaged in a retaliation campaign against him.
[11] In early August 2010, complaints were received by the human resources department, from certain staff against the applicant. The complaints were made by the applicant's Manager (Mr Peter Harrison) and by applicant's fellow Education Co-ordinator (Ms Denise Moses).
[12] The applicant and other staff were interviewed about these complaints. Ms Wilcock, Manager - Organisational Development (which included responsibility for human resources), considered that the centre management team of Harrison, Moses and the applicant, had become dysfunctional. She saw two options available for that issue - full investigation into all complaints or use of mediation to resolve all complaints. The centre management team were asked and responded with their preference for the mediation process.
[13] The mediation process was conducted by an external organisation being a management and research consultants firm. The mediator was a Mr Graham Hill.
[14] Ms Wilcock received negative feedback from Graham Hill about the applicant's behaviour at the mediation process. This behaviour was viewed as evidence of the applicant not acknowledging his inappropriate behaviour and the need to change his ways.
[15] The applicant was dismissed by letter of 1 October 2010, with immediate effect. Reference was made in the letter to complaints of bullying against the applicant and the unsuccessful mediation process. Amongst other payments listed in the dismissal letter, the applicant was advised of the payout of the remainder of his fixed four year term contract (1 October 2010 to 31 December 2010) and four weeks notice in lieu.
FINAL SUBMISSIONS
For the Applicant
[16] The applicant in final submissions put the following:
(a) During proceedings, the respondent's representative conceded that the dismissal was procedurally unfair.
(b) Ms Wilcock gave evidence that the applicant was direct in his dealings, but that does not make the applicant a bully.
(c) Ms Wilcock was unable to explain the actual reason for the dismissal. There was no complaint by Mr Harrison against the applicant. The complaint by Ms Moses was terminated and replaced by mediation. Whatever complaints were made were not brought to the attention of the applicant.
(d) The mediation process was not a proper mediation as not all issues could be discussed. In particular, he was denied the opportunity to discuss Ms Moses' complaint of bullying against him.
For the Respondent
[17] Mr Mattson, solicitor for the respondent put the following in final submissions:
(a) The reason for the applicant's dismissal was his behaviour, his inability and refusal to mend his ways, and the effect that that behaviour and his continued employment had on other staff.
(b) The appellant's inappropriate behaviour was documented by reference to incidents from March 2008 to near the time of his dismissal.
(c) The inappropriate behaviour consisted of such conduct as being vocal and rude, being aggressive/direct, controlling - dominating meetings of staff.
(d) The applicant had been advised to tone down his behaviour.
(e) The respondent engaged a mediator, by agreement of staff (including the applicant) in an effort to address the breakdown in relationships amongst staff.
(f) The mediator had a one-on-one discussion with the applicant on 6 September 2010.
(g) The respondent issued a letter to the applicant (mistakenly dated 23 August but sent 7 September 2010) advising the applicant that if there was any repetition of inappropriate or unprofessional behaviour in the future, then consequences, including dismissal would be considered.
(h) A group mediation session was held on 13 September 2010. This was unproductive due to the applicant's conduct during the approximate two hour session. His conduct, during the mediation, included telling Ms Moses to "put up or shut up".
(i) The written mediation report by Graham Hill stated that there had been little progress largely due to the position taken by the applicant.
(j) An individual session by Mr Hill was attempted with the applicant but without any progress in respect of the applicant acknowledging a need to change his perspective.
(k) The applicant was dismissed by letter of 1 October 2010.
CONSIDERATION
[18] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy."
[19] The unfair dismissal application was made twelve (12) days after termination and was therefore made within the fourteen day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.
[20] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised paragraph (b) as an issue for consideration. Therefore, the applicant is a person protected from unfair dismissal.
[21] Paragraphs (c) and (d) of section 396 have no relevance to this case.
[22] The applicant claimed that he had been unfairly dismissed and sought reinstatement and money for lost remuneration.
[23] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:
"(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy."
[24] Paragraph (a) of section 395 is satisfied by way of the dismissal of the applicant. Paragraphs (c) and (d) have no relevance to this case. As to paragraph (b), the applicant said that his dismissal was harsh and/or unjust and/or unreasonable.
[25] In order to determine whether the applicant's dismissal was harsh, unjust or unreasonable, it is necessary for FWA to consider the factors set out in section 387. Those factors are
"(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 the unsatisfactory performance of 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 the FWA considers relevant."
(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);
[26] The first factor to be considered is whether there was a valid reason for the dismissal. In this case the issues relate to the applicant's conduct over a period of time.
[27] The respondent set out in writing, the reasons for the summary dismissal of the applicant. The termination of employment letter is dated 1st October 2010 and signed by Dr Kerry Hudson, Chief Executive Officer 1.
[28] The dismissal letter refers to the following reasons:
- complaint of bullying arising out of the applicant's behaviour in the workplace;
- unsuccessful mediation sessions and, in particular, the unsuccessful mediation session of 21 September 2010;
- absence of any satisfactory improvement in the applicant's behaviour.
[29] The respondent relied upon three witnesses to provide the evidence to support the reasons for dismissal: Harrison, Moses and Wilcock. Of these three, Harrison and Moses worked alongside the applicant. Wilcock has a human resources responsibility and was made aware of issues involving the applicant and other staff. During the proceedings, FWA was provided with a definition of “bullying”, being an extract from a policy document. Thus, “Bullying means exhibiting a pattern of behaviour that intimidates, degrades or humiliates a person or persons, or that causes a risk or injury to the persons targeted.” 2
[30] The witness statement of Peter Harrison sets out a chronology of events surrounding the applicant's behaviour at work. Mr Harrison was the Manager in charge of the applicant and Ms Moses, amongst others. The bulk of the respondent's case against the applicant is contained in the witness statement of Mr Harrison. Accordingly, Fair Work Australia will use his chronology of events/evidence as the benchmark for analysing the respondent's case against the applicant. Ms Moses gave supporting evidence against the applicant.
[31] The applicant, of course, gave evidence that he had been unfairly dismissed. Ms Ward gave evidence in support of the applicant.
March 2008
[32] Mr Harrison became the manager of the applicant in 2008. Harrison records in his witness statement that there were meetings of staff concerning relocation of child care accommodation. During these meetings, the applicant "became quite vocal and rude.Dimitri was shouting at management, standing, arms waving about and pointing his finger at management."3 Two Education Co-ordinators complained to Harrison about his behaviour, which Harrison found to be aggressive. Harrison emailed the applicant about his behaviour on 10 March 2008 (Annexure A to his witness statement). Harrison raised the matter with the then human resources person who organised an informal discussion with the applicant and Harrison. The latter wrote up a file note of the meeting, titled: "Inappropriate behaviour in the office" (Annexure B). It also is a contemporaneous document concerning the applicant's behaviour. Harrison wrote contemporaneous file notes about other incidents set out below.
[33] The file note records that the applicant apologised and agreed to moderate his language.
May 2008
[34] Harrison's witness statement deals with a report by Pamela Bath, Education Co-ordinator. It is a report adverse to the applicant (Annexure C). However, Pamela Bath did not give evidence in the proceedings before myself and her report is therefore only hearsay. It does not form part of my consideration.
October 2008
[35] The applicant was promoted to the position of Education Co-ordinator. Mr Harrison deposed that he supported that promotion.
February 2009
[36] Harrison records that Denise Moses, Education Co-ordinator, came to his office to complain about the behaviour of the applicant. The applicant entered the office as Moses was making her complaint. The applicant "shouted" at Moses: "why don't you talk to me". Moses walked out and Harrison told the applicant to moderate his behaviour. 4
[37] Ms Moses deposed as to the foregoing February 2009 issue, that she approached Harrison (her manager) following an incident between the applicant and herself. 5 She made a file note of the incident (Annexure A). Her file note records that she was in the staff room when the applicant came in and yelled at her about an administration matter. He yelled at her that she would have to do something about that matter. He yelled at her in front of teachers and she saw this as undermining her position and any sense of authority with the teachers. His tone was one of treating her (a fellow member, like him, in the management team) as a subordinate. Ms Moses was forced to explain to the applicant that the matter was in hand. "He (the applicant) kept badgering me until I finally said I'll see you upstairs and by this time I was physically shaking and could hardly breathe - such a public display".
Ms Moses went upstairs and began her complaint to Mr Harrison when the applicant arrived and said: "why don't you talk to me."
June 2009
[38] Harrison received a complaint from a teacher (Sam Borka) about the applicant. Mr Borka did not give evidence in the proceedings before myself. Harrison arranged a meeting with Borka and the applicant. Harrison deposed that he said to both Borka and the applicant that people needed to conduct themselves politely and act civilly with each other in the workplace. He further deposed that the applicant apologised to Mr Borka.
Dimitri's behaviour worsening
[39] Harrison then sets out in his witness statement a general commentary about the applicant's behaviour worsening - around mid 2009. He described the applicant as becoming more angry and agitated. Harrison said he had at least four discussions with the applicant as his manager and advised the applicant to: soften his behaviour as he was upsetting people, try not to be so direct with people, try to modify his behaviour; and try and soften his tone. The applicant allegedly responded. "Oh yes, I'll try, but you know what I'm like, people know it’s my style". 6
October 2009
[40] Harrison reports on an incident on 22 October, 2009, involving a casual teacher, Mr Syd Ahal, who came to Harrison's office to make a complaint about the applicant. Ahal and Harrison were standing in the doorway of Harrison's office when Ahal commenced to make his complaint.
The applicant walked up to those two persons and interjected. Harrison described the applicant's conduct as loud, waving his arms, pointing at Ahal and yelling at Ahal. The behaviour overall was described as aggressive. Harrison took about five minutes to calm the applicant down. Ahal declined to take the complaint further. Harrison made a file note of the incident (Annexure H). The file note records that Ahal advised that he would not be available to do casual relief teaching in the future.
July 2010
[41] Harrison resolved an incident involving a certain staff member, Moses and her son who was working in the administrative office. This incident did not involve the applicant.
[42] The applicant complained to Harrison about the incident and its outcome. Harrison made a file note of the meeting between him and the applicant (Annexure I). The file note of 2 July 2010 records that the applicant came into Harrison's office, extremely agitated - he was loud, angry and aggressive and told Harrison what Harrison should have done in relation to the Moses issue. The file note records Harrison twice telling the applicant to stop jabbing his finger at Harrison in an intimidating manner.
[43] Another incident occurred on 20 July 2010. Harrison's diary records a file note of the applicant's conduct at a Centre Management Team meeting. Harrison records that the applicant loudly and aggressively challenged Harrison to defend his decision to the assembled teachers in making a certain appointment. The applicant stood up and loudly accused Moses of coaching the successful teacher for the appointment.
[44] Harrison decided to advise the human resources department about certain incidents involving the applicant. He did so by email of 12 August 2010 (Annexure K).
30 August 2010
[45] The human resources department organised a meeting involving human resources personnel (including Danielle Wilcock) and Harrison, Moses and the applicant. A file note, unsigned, of that meeting is attached to Harrison's witness statement (Annexure N). The meeting threw up two options to deal with the dysfunctional Adult Migrant English Program Management team: a full investigation of all employees or a mediation process by an external investigator. The team of Harrison, Moses and the applicant opted for mediation.
Mediation
[46] Harrison, Moses and the applicant had individual mediation sessions with the mediator, Graham Hill - in early September 2010.
[47] On 13 September 2010, there was a group meeting involving the mediator, Harrison, Moses and the applicant. Harrison deposed that the mediator did not get far into the mediation session when the applicant interjected and was "talking loudly and consuming the discussion". The meeting went for about 2 hours and I'll estimate that Dimitri (the applicant) spoke for about 90% of that time". The applicant complained continually about a warning he received from the respondent. The applicant complained about Moses and said to her in a loud voice, pointing: "Put up or shut up, either make a complaint about me or don't, put up or shut up." Harrison also recorded that the applicant at times stood up during the mediation sessions and spoke in a loud voice, yelling, waving arms and pointing. Harrison said he found the standing up by the applicant to be aggressive.7
The Applicant’s Response to Allegations
[48] The applicant, under cross- examination, denied that he had engaged in inappropriate behaviour: he denied yelling at staff; he denied apologising for his behaviour but did once apologise for "inadvertently" posing any harm or any discomfort; he denied saying that he would moderate his language; he denied interrupting a conversation between Harrison and Moses for the February 2009 incident; he denied dominating Centre Management Team meetings; he denied banging his hand at these meetings; he denied threatening Moses with High Court action - he countered that he said to her that if she did not apologise for her breach of privacy in entering his office and tampering with his documentation and reading his emails, then he may seek legal support; he agreed he could be direct with people but not abrasive; he agreed that Harrison told him to soften his behaviour and not be so direct with people but denied Harrison told him to try and modify his behaviour; he impliedly denied he interjected the discussion between Harrison and Ahal for the October 2009 incident and denied talking in a loud voice, waving his arms about and pointing his finger at Ahal and denied Harrison told him to calm down; he agreed he had an extremely heated discussion with a raised voice against Harrison over a knife incident; he denied screaming and yelling at the administrative staff on 20 July 2010 and denied saying, "You just have to get used to it" when asked by staff to be more polite; and finally he denied telling Moses at the group mediation session to "put up or shut up” - denied stabbing gesture - denied he stood up and was yelling.
[49] Having considered the evidence and submissions of the parties, FWA. has concluded that the weight of the evidence is against the applicant. As well, having had the benefit of observing the witnesses in the witness box, FWA has no reason to doubt the evidence given by Harrison and Moses as to the accuracy of their account as to the applicant’s pattern of inappropriate behaviour. In particular, as described below, the account given by Ms Moses in the witness box as to the applicant’s conduct towards her during one of the mediation sessions, was not challenged by the applicant even though she gave this account to him while being cross-examined by him. It appeared to FWA that the applicant did not appreciate that his direct, in your face approach, in his dealings with other persons, could not be well received or even found to be confronting or offensive to those persons. FWA. has concluded that the respondent had a valid reason for the dismissal of the applicant.
[50] The weight of the evidence in the main was that provided by Harrison and Moses, both of whom were fellow Centre Management Team members with the applicant. Harrison was the manager of the applicant.
[51] FWA has set out above, the chronology of events/issues involving the applicant over more than a two year period. Harrison made contemporaneous notes of events/issues involving the applicant. These notes and the evidence of Harrison show a pattern of behaviour by the applicant that was inappropriate. As early as March 2008, Harrison advised the then human resources person of the applicant's behaviour and an informal discussion was held with the applicant. The behaviour was recorded by Harrison as being "quite vocal and rude. (He) was shouting at management, standing, arms waving about and pointing his finger at management." Harrison found the applicant's behaviour to be aggressive.
[52] That observation by Harrison was reflected in later incidents which showed a pattern of behaviour.
[53] Thus, Moses gave evidence of the February 2009 incident in which the applicant yelled at her, in front of other teachers, about an administration matter. But in doing so, in front of other teachers who were subordinate to Moses, the applicant undermined her authority.
[54] Harrison described the applicant's interjection in October 2009 between Harrison's and Ahal's discussion over Ahal's complaint about the applicant. Harrison described the applicant's conduct as loud, waving his arms, pointing at Ahal and yelling at Ahal. The behaviour overall was described as aggressive. Harrison took about five minutes to calm the applicant down.
[55] In July 2010, Harrison, as manager, had mediated an amicable outcome of a situation involving a certain staff member and Moses. Despite the incident not involving the applicant, he complained to Harrison about the incident and its outcome.
Harrison's contemporaneous file note records that the applicant was extremely agitated - was loud, angry and aggressive. (This aggressive nature was also described by Harrison in respect of the applicant and the Ahal incident and the first reported incident of March 2008).
[56] Harrison also records another aspect of the applicant's behaviour that was challenging to authority. Harrison recorded that the applicant told him what Harrison should have done in relation to the Moses issue. The applicant exhibited this behaviour again a few weeks later (20 July 2010) when the applicant loudly and aggressively told Harrison to defend his decision (to assembled subordinate teachers to Harrison) in making a certain appointment. The applicant had also undermined the authority of Moses, by his manner in yelling at her, in front of subordinate teachers to Moses, that she should do something about an administration matter (the February 2009 incident).
[57] Both Harrison and Moses concurred on the applicant's behaviour during the group mediation session of 13 September 2010. Harrison described how the applicant complained about Moses and said to her in a loud voice, pointing: "Put up or shut up". And he deposed that the applicant at times stood up during the mediation sessions and spoke in a loud voice, yelling, waving arms and pointing.
[58] Ms Moses was cross-examined by the applicant. She gave evidence as to the first mediation session as follows: the applicant took over the meeting during the first slide presentation by the mediator (Mr Hill) and directed his anger at Moses because the applicant had received some kind of warning letter; the applicant spoke for about 95 per cent of the time; the applicant told Moses to put up or shut up; the applicant made like a knife action to his back - "She's got the knife to my back now. She has to put it in writing. Put up or shut up"; the meeting became another forum for the applicant to abuse Moses; and finally she said that she thought the mediator decided to have more individual sessions before the mediator put all parties back together as a team.8
[59] The applicant did not challenge the accuracy of Ms Moses account whilst she was in the witness box being cross-examined by him.
[60] A few questions later, he asked Moses to describe the back stabbing gesture. She responded that the applicant was trying to say that Moses had the knife to his back, "because you (the applicant) mentioned words like "rape". You said, "Now Denise (Ms Moses) can say that I (the applicant) raped her, and I can't do anything about it. She's got the knife to my back" … I (Ms Moses) was at a high level of stress by then."9
[61] The applicant did not challenge the accuracy of this account. Instead he made a reference to "Damocles Sword". This was his way of saying that the bullying allegation by Moses was hanging over his head and how was he to move forward, unless that allegation was addressed. He sought to do this through the mediation process.
[62] Ms Moses responded that the applicant had used words like "murder" and "rape". She described the applicant's words as "really violent language".10
[63] The applicant did not challenge Ms Moses description of the language used and her personal reaction to the language used. FWA was pointedly struck by the applicant’s failure to challenge the evidence of Ms Moses. Perhaps the applicant did not appreciate the impact of his behaviour on other persons.
[64] The mediator provided a report to the respondent and in it commented on the group mediation session as follows: "In summary little progress was made during the session largely due to the position taken by Dimitri (the applicant) who insisted that he be given the full details of the allegations made against him and the opportunity to either be found guilty or innocent".11 This report extract confirms the evidence of Harrison and Moses that the applicant had raised an issue(s) and little progress was then made towards group mediation.
[65] The foregoing evidence of Harrison and Moses supports the three issues raised in the respondent's termination letter as grounds for dismissal.
The first ground was a complaint of bullying arising out of the applicant's behaviour in the workplace. Harrison and Moses gave evidence as to the applicant's behaviour in the workplace over a period of two years or so. That behaviour showed a pattern of conduct that was the subject of complaints by more than one staff member and was the subject of discussion by Harrison (as the manager) with the applicant. The bullying complaint was made by Ms Moses in early August 2010. This complaint was investigated and the applicant was made aware of the complaint in person by Ms Wilcock on 16 August 2010. Arising out of the investigation, the Centre Management Team (Harrison, Moses and the applicant) agreed to a process of mediation in recognition that there were broader issues of concern at play in the their relationships, rather than just the Moses complaint of bullying. But during that mediation process, the applicant engaged, FWA finds, in bullying conduct towards Ms Moses. The evidence of Ms Moses as to what the applicant had said to her (“rape”, “murder”) went unchallenged by the applicant. Her description under cross-examination by the applicant that she found that language to be “really violent language”, went unchallenged by the applicant.
The second ground for dismissal is that the mediation sessions were unsuccessful. That ground, in itself, is not self explanatory as a ground for dismissal. But the context, given the evidence, is that the second ground goes to the applicant’s behaviour in not engaging in the agreed process of mediation in order to deal with the broader issues at play amongst the three members of the Centre Management Team. Instead he engaged in behaviour that was the cause of the bullying complaint (and which led to having by everyone’s agreement, a mediation process).
The third ground going to an absence of any satisfactory improvement is self explanatory given the foregoing evidence about the first two grounds for dismissal.
(b) whether the person was notified of that reason
[66] The applicant was notified of the reason for dismissal by letter dated, 1 October 2010 and signed by Dr Kerry Hudson, Chief Executive Officer.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[67] The applicant was not given the opportunity to respond to the reason for unfair dismissal. His evidence is that he was telephoned on 30 September 2010 and requested to attend a meeting with the Chief Executive Officer the following morning. He so attended and was advised by the Chief Executive Officer of his dismissal. She referred to bullying on the applicant’s part, that the disciplinary process had been exhausted and there had been no improvement in the applicant’s behaviour. He was then given the dismissal letter and a cheque. He read the dismissal letter and the reference to bullying complaints. He asked of the Chief Executive Officer as to what were these complaints because he was only aware of one complaint (the Moses complaint). He deposed that the Chief Executive Officer did not respond to the foregoing. 12 The Chief Executive Officer did not give evidence in the proceedings.
(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
[68] The applicant was not told that the purpose of the meeting with the Chief Executive Officer was his termination of services. He was not given the opportunity to have a support person.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[69] The dismissal of the applicant did not go to his performance as an employee in carrying out his duties but rather to his conduct (inappropriate behaviour). Accordingly, this factor as to performance is not an issue for FWA’s consideration.
(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
[70] This was not an issue. FWA will consider below the applicant’s claim of denial of natural justice as to the circumstances of his dismissal.
(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
[71] This was not an issue.
(h) any other matters that FWA considers relevant
[72] The respondent conceded that the applicant was denied procedural fairness as to the manner of his dismissal. The applicant was requested to attend a meeting with the Chief Executive Officer the following morning. He had no knowledge as to the purpose of that meeting. He so attended and was handed his dismissal letter. He was taken by surprise. He had no opportunity to have a support person with him. He was not given the opportunity to respond to the reasons for dismissal.
The foregoing denial of procedural fairness is a relevant consideration in this unfair dismissal application.
CONCLUSION
[73] Section 387(a) of the Act requires that FWA makes a finding as to whether there was a valid reason for the applicant’s dismissal. The meaning of “valid” was held to mean, in its context, “sound, defensible or well founded” reason(s) for dismissal. 13 For the reasoning set out above, FWA has held that there was a valid reason for dismissal.
[74] The applicant claims that his dismissal was harsh, unjust or unreasonable. The meaning of those terms is set out in a decision of the High Court of Australia. 14
[75] In considering whether the applicant’s dismissal was harsh, unjust or unreasonable, FWA has had to have regard to those matters listed under s387 of the Act, that is paragraphs (a) to (h) inclusive. FWA has done so as set out within this Decision.
[76] Although the applicant’s dismissal was procedurally unfair, FWA finds, however, that the dismissal of the applicant was not harsh, unjust or unreasonable. FWA accepts that there has been a pattern of inappropriate behaviour by the applicant. Mr Harrison, in particular, as the manager of the applicant has had repeated talks with the applicant over a long period of time about his behaviour and the need to moderate that behaviour but to no avail. The applicant was given a letter on 7 September 2010 (not a formal warning letter) which put him on notice that if there was any repetition of inappropriate or unprofessional behaviour in the future, then more serious consequences, including dismissal may be considered. The agreed to mediation sessions followed and the applicant repeated his inappropriate behaviour, especially towards Ms Moses.
[77] The finding that the dismissal of the applicant was not harsh, unjust or unreasonable, is made having regard to all of the evidence.
[78] Accordingly, the application is dismissed.
Appearances:
Mr D Matolov - unrepresented (the applicant)
Mr J Mattson, solicitor, Bartier Perry (the respondent)
Hearing details:
2010
Sydney
7 and 8 February
1 Ex 3, Appendix 9
2 Tr 08/02/11 - PN 1427
3 Ex 13, paras 13-22
4 Ibid, paras 19-33
5 Ex 22, paras 11-14
6 Ex 13, paras 40-45
7 Ibid, paras 76-84
8 Tr 08/02/11 - PN 2501
9 Tr 08/02/11 - PN 2510
10 Tr 08/02/11 - PN 2515
11 Ex 10, Appendix I
12 Ex 4, pp 6 and 7
13 Selvechandran v Peteron Plastic Pty Ltd (1995) 62 IR 371
14 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410
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