Mr Geoff Barkla v G4S Custodial Services Pty Ltd
[2011] FWA 967
•21 FEBRUARY 2011
Note: An appeal pursuant to s.604 (C2011/3398) was lodged against this decision - refer to Full Bench decision dated 8 July 2011 [[2011] FWAFB 3769] for result of appeal.
[2011] FWA 967 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Geoff Barkla
v
G4S Custodial Services Pty Ltd
(U2010/13936)
COMMISSIONER CLOGHAN | PERTH, 21 FEBRUARY 2011 |
Unfair dismissal remedy.
[1] On 26 October 2010, Mr Geoff Barkla (“the Applicant”) made application to Fair Work Australia (FWA) alleging that he had been unfairly dismissed in his employment with G4S Custodial Services Pty Ltd (“the Employer”).
[2] Mr Barkla has made the application pursuant to s.394 of the Fair Work Act 2009 (“the Act”).
[3] Mr Barkla alleged, in his application, that he was notified of the dismissal on 13 October 2010 and the dismissal took effect on 22 October 2010.
[4] The Applicant, in his application, states that the reason given by the Employer for his alleged dismissal was that he “went on stress leave, due to being abused and humiliated by a work college (sic)”.
[5] In his application, Mr Barkla contends that his dismissal was unfair in that he had been abused and humiliated by a work colleague and G4S neglected to address the issue.
[6] Subsequent to the application, the Employer provided a response on 17 November 2010 to Mr Barkla’s application; the relevant parts are as follows:
- “Applicant has not been dismissed from G4S Custodial Services.
- Mr Barkla is a Perth based officer on temporary appointment as Acting Supervisor, Geraldton Court.
- The work colleague referred to by Mr Barkla in his application reported directly to Mr Barkla and received a written warning for his conduct.
- Mr Barkla continues to remain in Geraldton to allow him to attend medical appointments.
- Mr Barkla continues to have his accommodation paid for by the company and remunerated under the terms of his temporary appointment (meal and higher duties allowances).
- The terms of the temporary appointment allow for the arrangement to be ended by either party with a minimum of four (4) weeks’ notice.
- At the conclusion of the temporary appointment Mr Barkla will return to his substantive position as a Court Security & Custodial Services Officer based in Perth.
- Subject to medical opinion, there is an expectation Mr Barkla will return to Perth the week ending 21 November 2010 and meet with the General Manager to discuss issues raised in a report he submitted to the General Manager dated 19 October 2010.”
[7] Mr Barkla’s application was unable to be resolved at conciliation on 29 November 2010 and was subsequently referred to me for arbitration.
[8] On 3 December 2010, I issued a Statement and Directions on how the matter would proceed to arbitration.
[9] In view of the Employer’s assertion that Mr Barkla had not been dismissed from his employment, it was necessary, in the first instance, to determine whether he had been dismissed before considering whether the dismissal was unfair.
[10] In my Statement and Directions, I stated the following:
“[6] In the first instance, it is necessary for the Tribunal to determine whether the Applicant is protected from unfair dismissal. Simply put, if the facts demonstrate a finding that Mr Barkla was terminated on the Employer’s initiative or that he resigned because of the conduct of the Employer, Mr Barkla is protected from unfair dismissal and can have his application heard and determined.
[7] Should the facts demonstrate that Mr Barkla was not terminated by the Employer, or in the alternative, not forced to resign because of the conduct of the Employer, I will dismiss the application. Both this statement and the statement in paragraph [6] are subject to the usual right of review.”
[11] At the arbitration on 7 February 2010, Mr Barkla gave evidence in support of his application.
[12] For the Employer, the following gave evidence in order of appearance:
- Mr Stephen Smith, Human Resources Manager.
- Mr Marc Mexsom, Acting Manager, Operations.
- Mr Robert McCarthy, General Manager of the Court Security and Custodial Services Contract.
[13] Both parties provided substantial documentation to the Tribunal which was incorporated into proceedings. Having received this material, heard oral evidence and submissions, I reserved my Decision. In reaching this Decision, I have given consideration to the facts, the evidence, the legislation and the case law cited.
BACKGROUND FACTS
[14] Following a three month probationary period, Mr Barkla was appointed a permanent Court Security Custodial Services Officer (“CSCS Officer”) effective from 29 September 2008. The position was located in Kalgoorlie.
[15] On 9 October 2008, Mr Barkla was offered and accepted the position of a permanent Senior CSCS Officer also in Kalgoorlie. The offer was subject, among other requirements, to a six month probationary period commencing from 13 October 2008.
[16] On 17 February 2009, the Employer approved a request from Mr Barkla to relocate from Kalgoorlie to Perth effective from 23 February 2009. In relocating to Perth, Mr Barkla retained his permanent status of employment but reverted back to being a CSCS Officer.
[17] On 18 July 2010, Mr Barkla was offered a secondment to the position of Acting Supervisor, Geraldton. The period of secondment was from 19 July 2010 to 11 February 2011. The letter of offer to Mr Barkla provided under the heading, “Conclusion of the Temporary Appointment”, the following:
“Your likely tenure in this position is expected to be until 11th February 2011. This arrangement may be ended by either G4S Custodial Services or yourself with a minimum of four (4) weeks notice. At the conclusion of the secondment you will be entitled to return to your substantive position which is CSCS Officer, Permanent Flex Time status, Pool”1 (my emphasis)
[18] On 23 July 2010, Mr Barkla accepted the terms and conditions set out in the letter of offer for secondment to the position of Acting Supervisor, Geraldton.2
[19] On 24 September 2010, Mr Barkla filed a report with the General Manager as follows:
“David Clinch was upset that Andrea Welsh was taken off of (sic) the transport due to her being scared of a PIC (prisoner in court). Officer Clinch became upset and again called me a “dick head”.
“I am fed up with the personal abuse from Officer Clinch. This is the second time Officer Clinch has verbally abused me.” 3
[20] The following is a summary of relevant communication between Mr Barkla and the Employer following the filing of the report on the incident on 24 September 2010:
28 September 2010
[21] Mr Mexsom requested that Mr Barkla and Mr Nash conduct a counselling/performance review session with Mr Clinch.
[22] Mr Mexsom stated that he will back any recommendations from Mr Barkla and Mr Nash in an effort to move forward 4.
[23] Mr Mexsom noted that although Mr Barkla wanted Officer Clinch stood down, he (Mr Mexsom) was not prepared to do that until the “process” had been completed following advice from Human Resources5.
28 September 2010
[24] Mr Barkla reaffirmed his complaint pointing out that this was the second occasion in which he had been verbally abused by Officer Clinch.
[25] Mr Barkla and Mr Nash (2IC) held the view that a neutral person should be involved.
[26] Mr Mexsom advised Mr Barkla that Supervisor Tracey Zampogna, as an independent person, would be investigating the incident.6
29 September 2010
[27] Officer Clinch provided his report of the incident with Mr Barkla. Officer Clinch reported that just prior to the alleged verbal abuse, he informed Mr Barkla that he, “would be going on stress leave effective immediately” and told Mr Barkla that he would not have to put up with this “sort of stress...and it was not like this under the previous Supervisor”. Mr Barkla took exception to the comments and he, and Officer Clinch moved closer to each other. Mr Nash intervened and advised Officer Clinch to go home and obtain a medical certificate for “stress days”.7
30 September 2010
[28] Mr Barkla believed that Officer Welsh had lodged a harassment claim against him and was seeking a full investigation. Mr Barkla stated that if, following the full investigation, the claims are found to be not true, he would be putting in a counter harassment claim against her.8
4 October to 8 October 2010
[29] Email exchanges took place between Mr Barkla and Mr Mexsom. While under the heading of Medical Tomorrow, the emails discussed operational issues, staffing requirements and Mr Mexsom’s expectations of Mr Barkla following his periods as acting supervisor at Geraldton and South Hedland.
11 October 2010
[30] Mr Barkla emailed Mr Mexsom on Monday 11 October 2010 as follows:
“Hi Marc,
Please see attached Leave Application.
Marc, I require extended leave due to personal reasons regarding close family members. I will be returning to Adelaide until these issues are resolved. Basically these are issues concerning my 10 year old child. I would like the opportunity to go back to Adelaide, for approx 6 months to address these problems.
Although there have been a number of personality clashes here in Geraldton, I believe the work I have put in to Geraldton, since Feb 2010 have made Geraldton a more Compliant and Safer Site to work on.
I will give the required 4 weeks notice and then start my annual leave, before starting LWOP, If Approved.
I would very much appreciate the opportunity to come back to G4S and W.A, should you allow this?
Regards
Geoff Barkla” 9
[31] The reason for leave set out in the application form was as follows:
“I require up to 5 months LWOP for personal reasons to address family issues”.10
12 October 2010
[32] Mr Mexsom advised that there is a maximum limit of three months for LWOP, as each officer has to work a minimum of one shift every three months, for permit purposes.
[33] Mr Mexsom advised that he also required an annual leave form to cover the dates intended to be taken as annual leave.
[34] Mr Mexsom advised that Mr Barkla was welcome to re-apply for employment on return to WA and informed him of the requirement to vacate company accommodation on his last working day in Geraldton 11.
[35] Some six hours later, in another email, Mr Mexsom sought answers from Mr Barkla as to why the Etivity report for the whole of the previous week in Geraldton had not been completed 12.
13 October 2010
[36] Between 9:09am and 1:13pm, eight emails were exchanged between Mr Barkla and Mr Mexsom as to why the Etivity report had not been completed.
[37] In short, Mr Barkla explained that operational priorities and a lack of staff prevented the Evitity report from being completed. Mr Mexsom did not accept Mr Barkla’s explanation. Further, Mr Mexsom was unaware that Mr Barkla had taken sick leave for “work related stress” on 8 October 2010 as Mr Barkla stated to him that he did not “feel to (sic) good” 13.
[38] Mr Mexsom concluded an email at 9:24am:
“As a duty of care to you if you are officially stating the Acting Supervisor’s role in Geraldton is too stressful for you I will relieve you of your duties as acting supervisor in Geraldton and re-task you to your employed position of CSCS Officer. Please advise.”14
[39] Mr Barkla responded to say that one of the main reasons causing him stress is that the Employer was not providing him with a “stress free workplace” as he has to deal with an Officer “who has insulted and abused me 2 times...and as of this moment has not been spoken to or had any discipline action against him from (sic) this latest time”.15
[40] Mr Mexsom responded by saying that there was no such thing as a stress free role with the Employer at supervisor/manager level. Further, “the officer you are referring to has been disciplined for the first incident and placed on a written warning he is also being investigated for the second mentioned incident” 16.
[41] Importantly, Mr Mexsom states:
“Please be advised your secondment as Acting Supervisor for Geraldton will be ending as of next Friday the 22nd of Oct 2010 as of this date you will be returned to your employed position of CSCS Officer” 17.
[42] In a further email, Mr Barkla queries why he was being asked to leave the Geraldton site and why Officer Clinch could remain working on site 18.
[43] Mr Mexsom concluded the email exchange by referring to Mr Barkla’s earlier email requesting “extended leave” (LWOP and annual leave) and advising that he could make himself available for work in the pool for the “remaining two weeks before you depart to South Australia” 19.
[44] Mr Mexsom reaffirmed that Officer Clinch was currently being investigated and refused to comment on the incident until the investigation was complete. Mr Mexsom concludes by saying that he was not in the position to stand down officers from duty as a result of every complaint20.
Workers’ Compensation First Medical Certificate
[45] On 13 October 2010, Mr Barkla received his first medical certificate from a medical practitioner citing the injury as: “verbal abuse from subordinate/co-worker/insufficient support from employer” 21.
[46] Mr Barkla was certified as unfit for work for 30 days/until further review. In addition, he was triage assessed at the Central West Mental Health Service and declared unfit for work on 14 and 15 October 2010. Further, he was certified unfit for work for the period 18 October to 18 November 2010 by the same Service. Finally, the Geraldton Medical Group on 22 October 2010 provided advice to the Employer confirming that Mr Barkla is “unfit to work until 18 November (as per medical certificate from psychiatrist and pending workers’ compensation claim)” 22.
20 October 2010
[47] Mr Barkla sought advice from Mr Mexsom and Mr Smith as to whether he had been considered for the position of Pool Supervisor as discussed with Mr Mexsom 23.
[48] On the same day, Mr Smith responded advising that applications would close on 27 October 2010 24.
[49] Mr Barkla responded by enquiring as to whether he could apply for the position with his medical condition and referred to advice received from Dr Goodbourn regarding two weeks sick leave for work related stress 25.
[50] The communication between Mr Barkla and Mr Smith then took a different turn with Mr Barkla stating that he sought LWOP because Officer Clinch had abused and humiliated him. Mr Smith referred to Mr Barkla’s original application which stated that the leave was “for personal reasons regarding close family members” and asked, “Has this changed?” 26
[51] Mr Barkla did not respond to Mr Smith’s question of whether things have “changed” in an email response on the following day 27.
21 October 2010
[52] Mr Barkla asked whether the Employer is happy for him to stay in Geraldton until the medical certificate expires on 18 November 2010 or whether he is required in Perth 28.
22 October 2010
[53] Mr McCarthy, General Manager forwarded to Mr Barkla the following communication:
“I have reviewed and considered your report dated 19 October 2010 to me earlier today and determined to allow you to remain in Geraldton to continue under the care and guidance of your medical provider(s). The terms and conditions associated with your secondment to Geraldton will be continue (sic). Please be advised that subject to medical advice, I would expect that this arrangement to end on 13th November 2010 and that you will make arrangements to return to Perth”.
[54] Mr McCarthy encouraged Mr Barkla to access the Employer’s employee assistance programme. Mr McCarthy concluded his email with an invitation to Mr Barkla to meet with him to “discuss the issues raised in your report and to work together to determine how best to assist you to return to work” 29.
[55] Mr Barkla responded to Mr McCarthy within the hour stating that “words cannot express how grateful I am and how much I appreciate your support Sir”. Further, “hopefully, I can now focus on recovering and getting back to work” 30.
25 October 2010
[56] Mr Barkla emailed Mr Smith under the subject Working: “I was wondering what my chances are of going back to work in my position of Supervisor Geraldton please? Also if this is not an option would it be possible to be slotted in to the vacant position of Supervisor Pool?” 31
26 October 2010
[57] Mr Barkla, in an email, sought a response from Mr Smith concerning the previous day’s email and concluded with the comment, “At the moment I don’t see I have a future and all of this because of the workplace abuses. I need help and I would like to know that I have a future” 32.
[58] At 12:43pm Mr Smith responded to say that the Supervisor’s position is currently advertised and would close the following day. Should Mr Barkla want a copy of the advertisement it could be sent through to him, and if necessary, an extension beyond the following day arranged.
[59] Mr Smith advised that the Employer’s policy is to advertise positions 33.
[60] At 2:44pm Mr Barkla filed an application with FWA seeking a remedy for unfair dismissal from his employment.
27 October 2010
[61] Mr Barkla enquired of Mr Smith as to whether Officer Clinch had been counselled for abusing him and if there has been an Inquiry into the Geraldton site 34.
28 October 2010
[62] Mr Smith advised that Officer Clinch had been interviewed and a final written warning issued. Further, he confirmed that Mr McCarthy was committed to discussing issues at the Geraldton site with him and sought confirmation that he would return to work on 15 November 2010 35.
RELEVANT STATUTORY FRAMEWORK
- Section 385 -What is an unfair dismissal
- Section 386 - Meaning of dismissed
A person has been unfairly dismissed if FWA is satisfied that:
(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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
RELEVANT MATTERS FOR CONSIDERATION
Was Mr Barkla dismissed from his employment?
[63] In answering the question, was Mr Barkla dismissed from his employment, I cite paragraph 2 of his witness statement which states:
“I am currently employed by G4S as a CSCS Court Security and Custodial Services Officer, Perth Pool” 36.
[64] To be sure of Mr Barkla’s employment status I have examined all the material provided by both parties. Having examined all the material, I am unable to source a document in which the Employer either states, or it can be ascertained, that Mr Barkla’s contract of employment has been terminated. On the contrary, the Employer stated that Mr Barkla’s employment had not been terminated. Further, Mr Barkla did not advance any evidence that the Employer terminated his employment.
[65] Mr Barkla stated in his application that he was notified of his dismissal on 13 October 2010.
[66] On 13 October 2010, Mr Mexsom advised Mr Barkla that his secondment to the position of Acting Supervisor would cease on 22 October 2010. Further in an email later on the same day, Mr Mexsom interpreted Mr Barkla’s statement “I would very much appreciate the opportunity to come back to G4S and WA, should you allow this” as Mr Barkla handing in his notice. Mr Mexsom’s choice of words is unfortunate but understandable; as a matter of law, Mr Barkla’s comments, in context, could not be interpreted as him terminating his employment.
[67] Notwithstanding the above comment by Mr Mexsom, it is clear and conclusive, that he was terminating the secondment of Mr Barkla as Acting Supervisor from 22 October 2010.
[68] It is also clear and uncontested, that the notice given to Mr Barkla was inconsistent with his temporary appointment as Acting Supervisor, Geraldton which provided for a minimum of four (4) weeks’ notice. This error was rectified by Mr McCarthy on 22 October 2010, when he advised Mr Barkla that his secondment would cease on 13 November 2010 consistent with the terms of his temporary appointment.
[69] Mr Barkla’s conditions of employment are regulated, in part, by the G4S Custodial Services Pty Ltd CSCS WA and the Transport Workers’ Union of Australia Agreement (“the Agreement”). The Agreement is prescriptive in relation to termination of employment and no evidence was presented by Mr Barkla to say it was effected.
[70] I note that Mr Barkla asserts in his witness statement that Mr Mexsom “ended the agreement on that date (13 October 2010)” 37. Mr Barkla does not say, and could not say, that his contract of employment had “ended” -- what had ended, was his temporary appointment as Supervisor, Geraldton.
[71] Mr Barkla states also in his evidence that the temporary appointment was ended because “I complained about being bullied and left in a hazardous workplace” 38.
[72] Finally, it is important to note that between 13 October 2010 and mid December 2010, Mr Barkla continued to receive his salary and allowances consistent with the Acting Supervisor position 39.
[73] In summary, on the day Mr Barkla claims he was dismissed from his employment (22 October 2010) he was on sick leave and receiving the same salary and allowances of Acting Supervisor, Geraldton, as he did before the incident occurred; this arrangement continued until mid December. Plainly speaking, it appears that Mr Barkla did not consider how, if he had been dismissed, he could continue to receive sick leave up until mid December.
[74] I find, on the facts, that Mr Barkla was not dismissed from his employment on 22 October 2010. Further, as of 7 February 2011, it was uncontested that he was currently employed by G4S Custodial Services Pty Ltd.
Demotion
[75] Mr Barkla claimed on 19 October 2010 that, “G4S have decided to demote me and get rid of me” 40. Further, in cross examination he also asserts he was demoted41.
[76] As a matter of fact, Mr Barkla’s contract of employment from 9 October 2008 to 17 February 2009 was as a Senior CSCS Officer. At his own request, Mr Barkla regressed from Senior CSCS Officer to CSCS Officer on 23 February 2009. The regression was of Mr Barkla’s own volition on relocating from Kalgoorlie to Perth.
[77] Mr Barkla was given a temporary appointment as Acting Supervisor Geraldton from 19 July 2010 with the explicit term:
“At the conclusion of this secondment you will be entitled to return to your substantive position, which is CSCS Permanent Flexi term status Pool”.
[78] Mr Barkla signed accepting the terms and conditions of the secondment.
[79] The Employer exercised its right to cease the secondment on 13 November 2010 and Mr Barkla reverted to his substantive position of CSCS Officer, even though he continued to receive the same salary and allowances as Acting Supervisor until mid December.
[80] The temporary appointment to Acting Supervisor, Geraldton did not give Mr Barkla a permanent position of this rank. Subject to giving the four (4) week’s notice, the likely tenure of the temporary appointment to this rank was to 11 February 2011 only.
[81] Mr Barkla claims he was demoted. Demotion means a reduction, in this case, from Supervisor to a CSCS Officer. Having made the claim, the only evidence before the Tribunal was an offer by the Employer, and acceptance by Mr Barkla, of a temporary appointment to 11 February 2011 severable by four week’s notice by either party. When the Employer exercised the option to cease the temporary appointment, Mr Barkla was not being reduced in classification status or demoted, but simply returning to his substantive position.
[82] I can find nothing in the offer of temporary appointment to Supervisor, Geraldton which bestowed on Mr Barkla the status of a permanent Supervisor. Accordingly, the condition for a demotion, or reduction in rank, to be effected, did not exist; Mr Barkla simply reverted to his substantive employment classification.
[83] Finally, Mr Barkla also stated in evidence that he had previously worked in temporary supervisory positions and that, at the conclusion of those appointments, he returned to his substantive position 42.
[84] Mr Barkla claimed, in cross examination, that he is a CSCS Officer “based on the knowledge that I was demoted” 43. However, he goes on to give evidence that it is correct that he previously held temporary appointments and returned to his substantive position44. However, on this occasion, when his temporary appointment ceased, he claims that it is demotion, because he had made a complaint. This proposition to the Tribunal by Mr Barkla cannot succeed. The proposition has no contractual basis and is not accepted. Acceptance of such a proposition would also fly in the face of his previous experience, and common workplace arrangements where temporary appointments are made without disturbing the substantive rank or classification of the person carrying out the temporary duties.
[85] It is well established that a contract of employment can be varied by agreement but not changed unilaterally by either party. The parties can also terminate a contract of employment and replace it with a new contract of employment. Further, even though enterprise agreements commonly have different classifications of position, an employer is not able to unilaterally change an employee’s classification without reference to the contract of employment.
[86] Ms Beaumont, Counsel for the Employer, submitted that if Mr Barkla’s case is that his temporary appointment to Acting Supervisor was a form of promotion and/or was an appointment that offered permanency in that position, then it is misplaced.
[87] The intent of the Employer is demonstrated in the letter of Temporary Appointment which is unequivocal in its language, its tenure, the means by which the appointment can conclude and the employment status of Mr Barkla when the temporary appointment ceases. Further, Mr Barkla on 11 October 2010 gave four weeks’ notice consistent with the Temporary Appointment letter 45.
[88] Ms Beaumont cited Concut Pty Ltd v Worrell and Another (2000) 103 IR 160 at page 164 as authority for the contention that the letter of Temporary Appointment was not a new and discrete contract of employment which had the effect of terminating and replacing Mr Barkla’s existing contract of employment. I agree. Mr Barkla’s contract of employment continued to exist and the letter of Temporary Appointment was simply a variation with specified terms for a period between 19 July 2010 and 11 February 2011, or earlier, with four (4) weeks’ notice.
CONCLUSION TO TEMPORARY APPOINTMENT
[89] In relation to the circumstances by which the Temporary Appointment ceased, it is a fact that Mr Barkla, on 11 October 2010, sought five (5) months leave without pay (LWOP) for personal reasons to address family issues. The LWOP was to commence on 6 December 2010. Prior to commencing LWOP, Mr Barkla gave “the required 4 weeks’ notice” 46 and then would start his annual leave, before commencing LWOP (if approved). Mr Mexsom sought the requisite forms and informed Mr Barkla of the context of approving LWOP on 12 October 2010.
[90] Following Mr Mexsom’s enquiries regarding an operational issue in which he found the Applicant’s response unsatisfactory, Mr Barkla raised continually the issue of why he was having to work with Officer Clinch who had abused him. It was at this time that Mr Mexsom ceased Mr Barkla’s temporary appointment as Acting Supervisor.
[91] In response, Mr Barkla stated that his “family problems were a side issue, the real reason I wanted to leave Geraldton was because of Officer Clinch and the fact that Management have failed to deal with the issue of insults and abuse. I haven’t officially said that I will be going back to South Australia, I was making enquiries...I want to work in my current position as Geraldton Supervisor” 47.
[92] I find that Mr Barkla’s completion of an Application for Leave Form (notwithstanding it had not been authorised) was more than an enquiry. While I am not required to determine what the real reason was for seeking LWOP, I am satisfied that the Employer, as a matter of fact, brought Mr Barkla’s temporary appointment as Acting Supervisor to an end initially through Mr Mexsom, and subsequently, by Mr McCarthy on 13 November 2010.
[93] It is not the Tribunal’s role to determine whether Officer Clinch made a disparaging comment to Mr Barkla; that finding was for Ms Zampogna. However, I note that the Employer’s Staff Disciplinary and Equality of Opportunity and Freedom from Workplace policies provide for investigations into inappropriate conduct by employees. The Employer investigated Mr Barkla’s complaint concerning Officer Clinch and administered what it considered to be an appropriate penalty.
[94] I should note that Mr Barkla provided no evidence of any comparator, either hypothetical or real, that he was treated any differently to any other employee of the Employer. In relation to the allegation of lack of support by the Employer concerning his complaint, he fails to appreciate that the Employer adhered to its policies in respect to Mr Mexsom’s decision not to stand down Officer Clinch. The fact that the Employer did not respond to Mr Barkla’s wishes to stand down Officer Clinch and provide him with a “stress free” working environment (that is, a workplace absent of Officer Clinch) by itself, is insufficient to demonstrate a lack of support for a complainant. Further, Mr Barkla did not produce any evidence which objectively or subjectively, demonstrated that it encouraged or condoned Officer Clinch’s conduct -- it just dealt with it.
[95] For the above reasons, I find that Mr Barkla’s claim that he was unfairly dismissed on 22 October 2010 is not supported by the evidence, and as a finding of fact, he was at the time of the hearing on 7 February 2011, still employed by G4S Custodial Services Pty Ltd.
CONCLUSION TO APPLICATION
[96] Application U2010/13936 is dismissed.
COMMISSIONER
Appearances:
Mr Barkla, the Applicant.
Ms Beaumont, HLS Legal for G4S Custodial Services Pty Ltd.
Hearing details:
2011:
Perth
7 February
1 Exhibit R4-2
2 Exhibit R4-2
3 Exhibit R1-88
4 Exhibit R1-88
5 Exhibit R1-88
6 Exhibit R1-87
7 Exhibit R1-85
8 Exhibit R1-84
9 Exhibit R1-76
10 Exhibit R1-76
11 Exhibit R1-75
12 Exhibit R1-75
13 Exhibit R1-69
14 Exhibit R1-69
15 Exhibit R1-68
16 Exhibit R1-67
17 Exhibit R1-67
18 Exhibit R1-66
19 Exhibit R1-65
20 Exhibit R1-63 to 70
21 Exhibit R4-4
22 Exhibit R4-4
23 Exhibit R4-5
24 Exhibit R4-5
25 Exhibit R4-5
26 Exhibit R4-6
27 Exhibit R4-7
28 Exhibit R4-7
29 Exhibit R6-3
30 Exhibit R4-8
31 Exhibit R4-8
32 Exhibit R4-10
33 Exhibit R4-10
34 Exhibit R4-11
35 Exhibit R4-12
36 Exhibit A4 - Witness Statement of Mr Barkla
37 Exhibit A4 - Witness Statement of Mr Barkla
38 Exhibit A4 - Witness Statement of Mr Barkla
39 PN1359-1378 - Transcript of proceedings held on 7 February 2011
40 Exhibit R1-45
41 PN1249 - Transcript of proceedings held on 7 February 2011
42 PN1254 - Transcript of proceedings held on 7 February 2011
43 PN1249 - Transcript of proceedings held on 7 February 2011
44 PN1254 - Transcript of proceedings held on 7 February 2011
45 Exhibit R1-76
46 Exhibit R1-76
47 Exhibit R1-64
Printed by authority of the Commonwealth Government Printer
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