Mr Henryk Chmiel v Ability Options
[2012] FWA 3067
•12 APRIL 2012
[2012] FWA 3067 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Henryk Chmiel
v
Ability Options
(U2011/13447)
COMMISSIONER CAMBRIDGE | SYDNEY, 12 APRIL 2012 |
Unfair dismissal - alleged refusal to perform duty - mental health of applicant - no testing of alleged refusal to perform duty - no opportunity for applicant to offer explanation - harsh, unjust and unreasonable dismissal – compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 10 November 2011. The application was made by Henryk Chmiel (the applicant) and the respondent employer is Ability Options (the employer).
[2] The application indicated that the date of the applicant’s dismissal was 27 October 2011. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation and has proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Sydney on 9 March 2012.
[4] At the Hearing the applicant represented himself and gave evidence as the only witness called in support of the claim. The employer was represented by Ms M Doyle, a solicitor. The employer called one witness, Ms Lisa Rochow, who provided evidence on behalf of the employer.
Factual Background
[5] The applicant had worked for the employer for almost 2 years. The applicant was employed in a position described as social educator. The employer is a not for profit company which provides disability services and has approximately 640 employees.
[6] The applicant had a somewhat unfortunate employment history. Although some aspects of the applicant’s work performance were satisfactory he encountered difficulties particularly in relation to his interaction with other staff.
[7] The applicant had an extended period of absence from duty between 11 January and 4 June 2011 during which time he was suffering some psychological problems which were ultimately the subject of an unsuccessful workers compensation claim. It is relevant to record that the applicant’s state of mental health has been a matter inextricably associated with the termination of his employment and the subject of concern particularly in respect to the subsequent proceedings before FWA.
[8] On 26 October 2011, ongoing concerns that the employer had with the applicant’s behaviour at work culminated during a meeting at which the applicant refused to accept that the employer could alter his rostered days of work. The employer’s “Executive Leader for Human Resources”, Ms Rochow, met the applicant for the first time during this meeting.
[9] The meeting became difficult as the applicant asserted that an agreement had previously been made which permitted him to work only on specific shifts. During the meeting the applicant made statements to the effect that if he was required to work on shifts other than those acceptable to him, he would not work on such terms and make claim for workers compensation. Ms Rochow assessed that the meeting was not progressing the dispute that had arisen about whether the applicant could be required to work on rostered shifts other than those that he stipulated. Ms Rochow ended the meeting on the basis that a further meeting with the applicant would be arranged “... in the next couple of days.” 1
[10] Immediately after meeting with the applicant on 26 October, Ms Rochow met with members of the employer’s “Human Resource Team”. Ms Rochow was informed about an outstanding complaint that involved serious allegations about the applicant’s conduct at work. Ms Rochow was told that the details of this complaint were being confirmed so as to ascertain whether there were sufficient grounds to merit an investigation. Ms Rochow was also told about the applicant’s behaviour including that the applicant had refused to speak with his supervisor.
[11] Having been provided with this information from the “Human Resource Team”, Ms Rochow decided that the applicant’s employment should be terminated. She prepared a dismissal letter and arranged for the applicant to be contacted and advised that he should attend a meeting the next day.
[12] On the next day, 27 October 2011, the applicant did not attend the meeting with Ms Rochow and instead he told the employer that he was making a further claim for workers compensation for psychological injury. The applicant attended at the employer’s premises to provide a WorkCover medical certificate and he was given the letter of dismissal. The applicant was paid six weeks wages in lieu of notice in addition to any accumulated entitlements.
[13] Following his dismissal the applicant has not sought to obtain alternative employment because he has a “WorkCover certificate” which is apparently current until the end of April.
The Case for the Applicant
[14] The applicant submitted that his dismissal was unfair because he had never been given a verbal or written warning. The applicant said that he was a good worker. The applicant also complained about receiving the letter of termination when he was on sick leave.
[15] The applicant made written submissions which addressed the factors contained in s.387 of the Act. In summary, the applicant complained that he had been discriminated against, isolated, overloaded on some shifts, watched constantly and had people talking behind his back and gossiping. He submitted that he had a duty of care and occupational health and safety responsibilities to his clients and himself. The applicant submitted that the pursuit of these responsibilities had finally led to him becoming sick.
[16] The applicant further submitted that since 26 October 2011 he had been unfit for work. He submitted that as per doctors recommendations he could not undertake any kind of job. However the applicant also submitted that if he had not been dismissed he would have been likely to have received $1800 - $2100 gross per fortnight.
The Case for the Employer
[17] The employer was represented by Ms Doyle, a solicitor, who submitted that the dismissal of the applicant was not harsh, unreasonable or unjust. Ms Doyle made submissions which elaborated upon documentary material that had been filed on behalf of the employer.
[18] Ms Doyle submitted that there was valid reason for the termination of the employment of the applicant. According to Ms Doyle, that reason was based on the applicant’s refusal to follow a direction to work shifts that he had been rostered and that he threatened the employer that if he didn’t get the shifts that he wanted then he was going to make a workers compensation claim.
[19] Ms Doyle also submitted that the applicant had been given an opportunity to substantiate his claim that the Australian Services Union (ASU) acting on his behalf, had earlier secured an agreement with the employer to permit the applicant to work certain shifts. The applicant could not substantiate this claim however he continued to insist that the employer could not alter his shift roster.
[20] According to the submissions of Ms Doyle, the applicant committed serious misconduct which involved, his continued refusal to work shifts as directed, his threat to withdraw his services unless he was provided with the shifts of his choosing, his threat to make a claim for workers compensation, and his refusal to attend the meeting with Ms Rochow scheduled for 27 October.
[21] Ms Doyle submitted that because the applicant was dismissed for serious and wilful misconduct the issue of whether there were previous warnings was not relevant. Further Ms Doyle submitted that the process of dismissing the applicant was frustrated by the applicant’s withdrawal from attending the disciplinary meeting on 27 October 2011. According to the submissions of Ms Doyle, procedural fairness was afforded to the applicant.
[22] Ms Doyle submitted that there was no basis to find that the applicant had been unfairly dismissed and she urged that FWA not intervene in the matter. However, in terms of an alternative submission, Ms Doyle made submissions regarding the issue of remedy. In these submissions it was stated that the employment relationship had been destroyed and that reinstatement was not possible.
[23] Further, Ms Doyle submitted that if any remedy of compensation was to be considered it should be discounted because of issues such as, the applicant’s failure to mitigate his losses, the nature of the serious and wilful misconduct engaged in by the applicant, and that the employer had provided the applicant with six weeks pay in lieu of notice which was three weeks in excess of the entitlement under the Act.
Consideration
[24] Section 385 of the Act stipulates that FWA must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:
(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.
[25] In this case there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that FWA must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria 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 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 FWA considers relevant.
387 (a) - Valid reason for the dismissal related to capacity or conduct
[26] This was a case of dismissal that arose from the applicant's alleged misconduct. That misconduct was focussed upon the applicant’s assertion that the employer did not have the right to alter his allocated shifts unless such alteration was suitable to him. The applicant believed that the employer had agreed to such an arrangement as part of a return to work plan negotiated by the ASU.
[27] During the meeting held on 26 October 2011, the employer had unsuccessfully attempted to resolve the dispute about the applicant’s assertion regarding any alteration to his shift roster. The meeting was difficult and the applicant’s behaviour at that meeting concerned Ms Rochow. Importantly however, the applicant’s behaviour and his assertions regarding the alteration to his allocated shifts had not represented misconduct that warranted dismissal. Indeed, at the conclusion of the meeting Ms Rochow suggested that the matter would be progressed by way of a further meeting with the applicant.
[28] Unfortunately Ms Rochow was then given information about an outstanding complaint made against the applicant which was still being assessed as to whether any further investigation was required. In addition she was provided with other information involving allegations of misbehaviour and or misconduct of the applicant. This information caused her to decide to dismiss the applicant.
[29] Subsequently the employer asserted that the reason for the dismissal of the applicant was his misconduct involving refusal to work shifts as directed, his threat to withdraw his services unless he was provided with the shifts of his choosing, and his threat to make a claim for workers compensation. All of these acts of alleged misconduct occurred before the end of the meeting on 26 October 2011, at which time the applicant’s employment remained on foot, albeit under considerable strain. The information provided to Ms Rochow after the meeting caused her to change her mind and decide to dismiss.
[30] Consequently a substantial if not crucial, aspect of the reason for dismissal involved the information given to Ms Rochow about the unspecified complaint against the applicant and other allegations of misbehaviour and or misconduct. There was no testing of any of this information either with the applicant at the time, or subsequently upon the hearing of the claim before FWA. There has been no verification of the information provided to Ms Rochow after the meeting on 26 October and which formed an instrumental reason for the decision to dismiss.
[31] Therefore crucial aspects of the reason for the dismissal have not been established as fact. Consequently the decision to dismiss was in large part, based on invalid reason.
[32] However, aspects of the applicant’s behaviour and conduct were undeniably unacceptable. The applicant’s attempted reliance upon the asserted agreement said to have been negotiated by the ASU, was implausible and in the absence of any document or other verification, it was simply an untenable proposition. The actions and behaviours of the applicant should have been carefully assessed and considered by the employer with cognisance of the history of mental illness. Particularly given that the primary function of the employer is to assist persons with disabilities, the speed with which Ms Rochow decided to terminate the employment of someone with recognised mental health problems displayed a surprising lack of empathy and compassion.
[33] The employer appeared to recognise the error of its action and it attempted to redress the mistake by making an additional payment in lieu of notice. Ms Doyle stated:
“...the employer is aware that there are some issues in Mr Chmeil’s family background or mental state....and being aware that Mr Chemiel was an older worker there was some attempt to provide - to make the dismissal less harsh by providing him with additional compensation in terms of payment in lieu of notice...” 2
[34] The additional payments made upon dismissal might operate to reduce any remedy by way of compensation but cannot alter the invalidity found in respect to the reason for dismissal.
387 (b) - Notification of reason for dismissal
[35] The employer provided notification of the alleged reason for the applicant's dismissal. That notification was made by way of the letter of dismissal handed to the applicant on 27 October 2011. The reasons set out in the letter of dismissal are a combination of vague generalisations and recounts of alleged misbehaviour which relate to the applicant making claim or suggesting that he would make claim for workers compensation. Unfortunately for the employer, the letter of dismissal does not particularise the issues which were part of the information provided to Ms Rochow after the meeting of 26 October, and which operated as the fulcrum for her decision to dismiss.
387 (c) - Opportunity to respond to any reason related to capacity or conduct
[36] The employer did not provide any opportunity for the applicant to respond to allegations of serious misconduct. The applicant was not told that if he persisted with his assertion that his rostered shifts could not be altered he would be disobeying a reasonable direction of the employer and committing misconduct which could lead to dismissal. The refusal of the applicant to work as reasonably directed could not be treated as misconduct unless and until it was tested and the applicant actually refused a direct instruction.
[37] The decision to dismiss the applicant was made in large part, upon information that was never put to the applicant. The suggestion that the letter of dismissal could have been withdrawn during the meeting scheduled for 27 October when the applicant would have had an opportunity to be heard was a breathtaking reflection of the absence of natural justice.
387 (d) - Unreasonable refusal to allow a support person to assist
[38] There was no process whereby the applicant could have benefited from the assistance of a support person because the decision to dismiss was taken shortly after the meeting of 26 October and that meeting was not part of any formalised process but instead occurred by happenstance. Consequently the process adopted by the employer created an unreasonable refusal to allow the applicant to have a support person to assist him.
387 (e) - Warning about unsatisfactory performance
[39] There was no evidence of any warning made to the applicant about either his behaviour or performance giving rise to potential for termination of employment.
387 (f) - Size of enterprise likely to impact on procedures
[40] The size of the employer’s enterprise including the engagement of approximately 640 employees, should have allowed for a higher standard of decision making and associated procedures to have been followed.
387 (g) - Absence of management specialists or expertise likely to impact on procedures
[41] The employer did have dedicated employee relations management specialists.
387 (h) - Other relevant matters
[42] The issue of most concern in this case involves the mental health of the applicant. That issue was not given appropriate consideration by the employer with respect to the termination of employment. Shortly after the commencement of the Hearing I expressed my concerns about this matter proceeding to determination in circumstances where I have doubts about the applicant’s state of mental health.
[43] The applicant’s treating psychiatrist provided a letter which inter alia, stated that the applicant suffers from major depression and was currently taking strong antidepressant medication. Further, this letter stated: “I advise Fair Work Australia that it would be detrimental for Mr Chmiel’s mental health should he be required to return to work for Ability Options.” 3 In addition the applicant provided evidence that he has been unfit for work since dismissal and remains unfit for work until at least the end of April 2012.
[44] I remain troubled by the prospect that this matter has proceeded in circumstances where the applicant may have been unable to make properly balanced and evaluated decisions. The applicant has pursued a claim for unfair dismissal remedy and provided evidence from his own treating psychiatrist that would, in effect, rule out the primary remedy of reinstatement and severely limit any remedy by way of compensation. Consequently the conclusions that I have arrived at particularly with respect to remedy, have been made with considerable reluctance.
Conclusion
[45] The applicant was dismissed for alleged serious misconduct principally involving refusal to work in accordance with the reasonable direction of the employer. Upon proper analysis there can be no factual finding that the applicant actually committed such misconduct because the direction was not tested. Further, other reasons which have not been established as fact represented the substantive and operative basis for the decision to dismiss. Consequently the substantive reason for the applicant's dismissal cannot be held to have been valid.
[46] The applicant did however exhibit unacceptable workplace behaviours. These matters were not dealt with by the employer with appropriate regard for the mental illness of the applicant. In particular the decision to dismiss was made in haste and without any semblance of natural justice.
[47] Consequently the dismissal of the applicant was harsh, unjust and unreasonable.
Remedy
[48] It appeared that the applicant did not seek reinstatement as remedy for his unfair dismissal but instead, monetary compensation. In the circumstances I am satisfied that reinstatement of the applicant would be inappropriate and that payment of compensation would represent an appropriate remedy for the applicant's unfair dismissal.
[49] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 4 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 5.
[50] Firstly, I confirm that an Order of the payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.
[51] Secondly, in determining the amount of compensation that I Order I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act. There was no evidence that an order of compensation would impact on the viability of the employer’s enterprise. The applicant had almost 2 years service. The applicant would have been likely to have received fortnightly remuneration of between $1800 to $2100 if he had not been dismissed, except that he was unfit for work and remains so. The applicant made no efforts to mitigate the loss suffered because of the dismissal because he was unfit for work. The applicant has not earned any remuneration from employment or other work since the dismissal.
[52] Thirdly, in this instance I am satisfied that misconduct of the applicant did not contribute to the employer's decision to dismiss.
[53] Fourthly, I confirm that the amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.
[54] The most difficult aspect for determination in this matter has been the amount of compensation that should be provided. In particular I have been required to carefully consider subsections 392 (2) (c) and (d) of the Act against evidence provided by the applicant, that he was unfit for work at the time of dismissal and at all relevant times since.
[55] Compensation should not be confused with penalty. Although the applicant was unfairly dismissed on 27 October 2011 he has not been able to work. Even if he had not been dismissed, without paid leave or a successful workers compensation claim, he would not have received any remuneration. His unfair dismissal has not resulted in any lost remuneration. In fact he received six weeks remuneration by way of payment in lieu of notice for a period during which he was unfit for work.
[56] It is clear from subsection 392 (4) of the Act that any compensation must not be made for shock, distress or humiliation, or other analogous hurt. Consequently compensation ordinarily focuses upon identified lost remuneration and in this case there was none.
[57] There are also other impacts of dismissal that can be identified. Evidence of direct additional costs incurred as a consequence of dismissal can be compensated where appropriate. 6 In this case there was no evidence provided about any direct additional costs connected with the dismissal.
[58] However, the applicant lost almost two years of service that would have contributed to various service related benefits which were essentially zeroed as a consequence of the dismissal. These impacts are sometimes described as the loss of non-transferable employment credits. In other words, the applicant will have to start from scratch with any new employment in terms of his length of service, and all that is attached to length of service is lost and therefore compensatable.
[59] Apart from direct costs and the loss of non-transferable credits for which some quantification could be made, there are also some less tangible impacts of dismissal. A variety of non-financial impacts would be occasioned by the loss of employment particularly in areas of specialised vocation. For instance, the applicant's curriculum vitae would always suffer, at least, in general presentation, as a consequence of the dismissal from the employment. In confined or specialist areas of employment the prospects for subsequent employment can be severely hampered by dismissal.
[60] Consequently the assessment of compensation need not be confined to quantifiable financial loss. Indeed the assessment should properly extend beyond a balance sheet calculation. Therefore I have made assessment of compensation in this matter having incorporated the various elements mentioned including both quantifiable amounts and various non-tangible components.
[61] Consequently for the reasons outlined above I have decided that an amount approximating with two weeks remuneration should be ordered as compensation to the applicant. That amount is $2,100.00. Accordingly separate Orders [PR522263] providing for remedy in these terms will be issued.
COMMISSIONER
Appearances:
Mr H. Chmiel, on his own behalf.
Ms M. Doyle, solicitor, for the employer.
Hearing details:
2012.
Sydney:
March 9.
1 Exhibit 4 @ paragraph 22.
2 Transcript of proceedings (9 March 2012) @ paragraph 445.
3 Exhibit 3.
4 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
5 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
6 Grace Wong v Nytro Pty Ltd trading as Nitro Gym (Smith DP), [2012] FWA 1927.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR522262>
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