Mr John Peters v Pilbara Meta Maya Regional Aboriginal Corporation

[2014] FWCFB 8477

[2014] FWC 5117 [Note: An appeal pursuant to s.604 (C2014/6478) was lodged against this decision - refer to Full Bench decision dated 27 November 2014 [[2014] FWCFB 8477] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr John Peters
v
Pilbara Meta Maya Regional Aboriginal Corporation
(U2014/4695)

COMMISSIONER CLOGHAN PERTH, 19 SEPTEMBER 2014

Unfair dismissal.

[1] On 14 February 2014, Mr John Peters (Mr Peters or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with Pilbara Meta Maya Regional Aboriginal Corporation (PMM or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] At the hearing on 22 July 2014, the Applicant was represented by his wife, Mrs C Peters. Mr Peters gave evidence on his own behalf.

[4] The Employer was represented by Mr D White, Solicitor. Evidence was given on behalf of PMM by:

• Ms Rachael Green: Chief Executive Officer



• Ms Donna Kereopa: Housing Manager



• Ms Deborah Mas: Human Resources Officer



• Ms Tracy Loftus: Housing Administration Officer.

[5] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.

RELEVANT LEGISLATIVE FRAMEWORK

[6] There is no dispute between the parties that Mr Peters has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework for consideration are ss.385 and 387 of the FW Act.

[7] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”

RELEVANT BACKGROUND

[8] The Agreed Statement of Facts is as follows:

“1. The Applicant was issued with a warning letter on 14 January 2014.

2. On 31 January the Applicant attended a meeting for the purposes of a discussion of the PMM [Employer] Code of Conduct.

3. On Tuesday 11 February 2014 the Applicant’s employment was terminated.

4. The Applicant was paid two weeks’ in lieu of notice.” 1

[9] In addition, the following background can be ascertained from the evidence provided by the parties at the hearing.

[10] The Applicant was employed by PMM on 7 January 2013 in the position of Housing Officer.

[11] PMM was established to provide services to 27 remote Aboriginal communities in the Pilbara, Gascoyne and Murchison areas of Western Australia. This services provided are in the areas of: housing management, tenancy support, and environmental health services such as power, water and waste water. The central aim of PMM is to improve the quality of life of Aboriginal and Torres Strait Islander people.

[12] Attached to the contract of employment was a Position Description and Mr Peters was required to fulfil his duties in a satisfactory manner.

[13] Pursuant to the contract of employment, Mr Peters had a duty of confidentiality not to divulge or reveal to any person confidential, operational or administrative matters as a result of performing his role as an employee.

[14] Mr Peters was required to work 7.5 hours per day and take a one (1) hour lunch break. Mr Peters was accountable to the Employer for each hour worked by way of a timesheet.

[15] On termination of employment, Mr Peters was required, under his contract of employment, to handover any confidential information. Mr Peters was not to keep, retain or make copies of confidential information.

[16] Further, on termination of employment, Mr Peters was required to hand over any documentation or copies of documentation in his possession or control.

[17] The Position Description for a Housing Officer includes the following statement referring to the role:

“Reporting to the Housing Manager you will provide ongoing tenancy management and support services to a number of properties...” 2

[18] On 7 January 2013, the Applicant signed to say that he read and agreed with the Employer’s Code of Conduct. Further, he understood that, as a PMM representative, he must behave at all times in a satisfactory manner. I shall refer to the details of the Code of Conduct later in this Decision.

[19] On 27 May 2013, Mr Peters signed his Probation and Annual Performance Review “under protest”. It is fair to say that there is a wide variation between Mr Peters’ self rating and Ms Kereopa’s assessment of the Applicant as his direct Manager. For example, Ms Kereopa rates Mr Peters’ performance as “below average” for “Safety/Corporation Commitment”, whereas the Applicant rates himself as ”above average”. In relation to “Housekeeping” which includes vehicles, Mr Peters rates himself as “outstanding performance”, whereas Ms Kereopa assesses him as “below average”. Finally, in relation to “Following Instructions” and “Co-operation”, Mr Peters rates himself as “above performance” whereas, his Manager rates him as “below average” and “average” performance respectively. 3

[20] When measured against his Key Performance Indicators (KPIs), Mr Peters was rated, in an undated document, as “below average performance”. Mr Peters again signed this document “under protest”. 4

[21] On 11 October 2013, the Applicant was party to an incident regarding the inspection of a house.

[22] On 6 December 2013, the Applicant was involved in an event concerning his hours.

[23] On or about 6 December 2013, the Applicant was involved in a situation involving the washing of a vehicle.

[24] On 14 January 2014, Me Peters was issued with a First Warning Letter in relation to:

“1. Continued unjustified and/or unapproved absenteeism; and

2. Wilful refusal to carry out a lawful and reasonable instruction from your supervisor and/or management.” 5

[25] As part of the First Written Warning, Mr Peters was advised that he could meet with his Manager to discuss the matter further. The warning letter was signed by Ms Green, CEO.

[26] On or about 24 January 2014, Mr Peters was involved in an incident regarding the Employer’s preparedness for a cyclone.

[27] On 31 January 2014, Mr Peters was present for a staff meeting regarding the Employer’s updated Code of Conduct.

[28] On 6 February 2014, the Applicant was involved in another issue relating to the inspection of houses.

[29] On 7 February 2014, the Applicant was party to an instruction by the Employer to carry out work in relation to its vehicle.

[30] On 7 February 2014, Mr Peters sent an email to Ms Rose, Chairperson, PMM Council which begins:

“Please see chain of emails. I have passed on your concerns...” 6

[31] The chain of emails is an email sent to him from his Manager, Ms Kereopa which is copied to the CEO. An earlier email which Mr Peters sent to Ms Kereopa and copied to the CEO, and prior to that email, another email from Ms Kereopa to Mr Peters copied to the CEO.

[32] On 11 February 2014, Mr Peters’ employment was terminated “due to continuing misconduct and with a current warning in place”. The detailed reasons for the dismissal related to:

“ wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment;

• causing a serious and imminent risk to the reputation, viability or profitability of the Employer’s business;



• wilful refusal to carry out lawful and reasonable instructions from your supervisor and/or management;



• wilful disregard for Corporation Policies and Procedures.” 7

APPLICANT’S CASE

[33] The Applicant asserts that: “instant dismissal” was not justified. Further, there was no valid reason for the dismissal and that the dismissal was harsh, unjust and unreasonable.

[34] Mr Peters alleges that he was not given a warning about his performance or informed that he might lose his job due to performance issues. Mr Peters was under the impression that the few mistakes he might have made, should have been considered normal due to his additional workload. Finally, that he was summarily dismissed for a reason that was taken out of context.

[35] Mr Peters infers in his submission that his dismissal related to his role as a “whistleblower” and his attempts to bring possible fraud to the attention of the Minister for Housing and WA Police. The Applicant claims that he did nothing wrong regarding the email he sent on 7 February 2014, and that, the email was consistent with his Job Description and he was not given an opportunity to respond to this conduct.

[36] Mr Peters seeks reinstatement and contends that he can work amicably with everyone in the organisation.

EMPLOYER’S CASE

[37] The Employer submits that there were valid reasons for the Applicant’s dismissal. Further, Mr Peters was provided with an opportunity to respond to the reasons for dismissal at a meeting held on 11 February 2014.

[38] At the meeting on 11 February 2014, the Employer submits that Mr Peters threatened Ms Green in an entirely inappropriate way which, of itself, would justify summary dismissal.

[39] Finally, the facts and circumstances of the Applicant’s conduct as an employee which were discovered after his dismissal, amount to misconduct that would justify summary dismissal.

[40] The Employer seeks that the application be dismissed.

CONSIDERATION

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[41] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[42] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.

[43] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 8.

[44] Mr Peters’ contract of employment requires him to:

• comply with all of PMM policies;



• not divulge to any person any confidential information which comes to their knowledge in the course of performing their role and duties as an employee. 9

[45] Mr Peters’ position description required him to work within PMM’s Code of Conduct, Housing Management Policy and his contractual obligations. 10

[46] The Employer’s Procedures Manual: Housing Officer, requires that, when visiting remote communities, two people must enter houses for safety reasons. 11

[47] Ms Kereopa is the PMM Housing Manager and supervised Mr Peters.

[48] Ms Kereopa gave detailed evidence regarding the performance of Mr Peters. A summary of Ms Kereopa’s evidence is that Mr Peters:

• had difficulties following policies from the outset of his employment;



• frequently required instructions to comply with the Employer’s policies;



• required constant monitoring and follow up to ensure work was completed;



• managed some of his own work by referring it to Ms Kereopa;



• failed to follow policies which resulted in a lot of wasted time;



• because of difficulties in communicating with other team members, Mr Peters decided it was no longer required of him and requested Ms Kereopa to communicate on his behalf to other team members.



• ignored instructions or questioned them;



• misled tenants by overpromising for which PMM which could not deliver; and



• “by early December 2013, I found that Mr Peters would not listen to me and had become defiant, rude and disrespectful”.

[49] Ms Kereopa provided, with few exceptions, supporting documentation to demonstrate her many assertions in evidence.

[50] The Applicant’s approach to cross examination of Ms Kereopa was to seek documented notes of day to day interactions between Mr Peters and Ms Kereopa. In my view, such documentation is not necessary. Every workplace, each day of the week, has interactions between supervisors and their subordinates. Each and every interaction does not have to be recorded; it would be an intolerable and unnecessary burden in the workplace.

[51] Ms Kereopa was not directly questioned on her evidence of the Applicant’s performance. I find no reason to disregard Ms Kereopa’s evidence as to the Applicant’s performance.

[52] Ms Kereopa gave evidence regarding the requirement, when visiting remote communities, for two people to enter a house for safety reasons. Ms Kereopa gave evidence that Mr Peters had instructed a colleague to remain in the vehicle while he visited the tenant in defiance of the policy. Notwithstanding the instruction by Mr Peters, his colleague, Ms Junior joined him when inspecting the house. When this situation of contravening the policy was put to Mr Peters in cross examination, his response was “we are both colleagues. No, I’m not her boss” 12. Put shortly, Mr Peters both ignored and evaded the question of the need to comply with the policy.

[53] Ms Kereopa gave evidence of Mr Peter’s refusal to stay overnight in the Yandeyarra community. The Employer decided that, to clear a backlog of work, staff would be required to remain overnight rather than drive up and return in one day which required a round trip of 300 kilometres. Ms Kereopa gave Mr Peters significant notice of the requirement to stay overnight and asked him to respond on 20 December 2013 as he had previously indicated an issue with such a request 13. Mr Peters’ response was to forward his “union’s concerns”.

[54] The Employer assured Mr Peters that it would not require employees to stay overnight in Yandeyarra, if there was an “inkling of a safety issue”. Further, that the Employer supplies duress alarms. Mr Peters was the only officer with such concerns. Mr Peters did not stay overnight. When it was put to him in cross examination that he refused to stay overnight, his response was “I never refused...show me the evidence” 14.

[55] The Applicant was directed to wash vehicles on a Friday afternoon and not leave work early. In response to the allegation, Mr Peters’ witness statement states “Disagree - As per Law and Job Contract applicant is entitled to one hour break...Again an act of bullying by management” 15. In his witness statement, Mr Peters describes the direction as a breach of “health and safety act”. Having been directed by Ms Loftus to wash the vehicle, he advised her to “put it in writing”16. In oral evidence, Mr Peters agreed that he left work early17 and did not complete a Rostered Day Off (RDO) form for the hours taken at the end of the day.

[56] Having reviewed the email exchanges on a number of issues in the workplace, I am inclined to agree with the Employer that Mr Peters was continually argumentative. The email exchange ends with what ultimately was to be prophetic when he states “I agree ‘rules are rules’ and in future it will be followed without bending” 18.

[57] Mr Peters agreed in oral evidence that the Employer’s vehicles were to be washed on a Friday afternoon 19. When asked why he did not clean the cars, his response was “I didn’t have the gear to do it”20. By proper “gear”, he meant a “long sleeve shirt”21. The extent of Mr Peters’ attitude is that on 10 February 2014, Ms Kereopa went home and returned with her partner’s long sleeve shirt so he could wash a vehicle. This incident does not demonstrate, as Mr Peters attempts, his willingness to follow instructions. In my view, it demonstrates Mr Peters’ belligerence to continually contest and resort to reasons not to carry out an instruction. To the most disinterested observer, the resolution would be for Mr Peters to bring a long sleeve shirt to work on Fridays but instead it was another issue for argument.

[58] On 24 January 2014, Mr Peters was requested by Ms Loftus, Acting Manager, to make preparations for an imminent cyclone. Similar to all her evidence, it was not subject to cross examination. Ignoring Ms Loftus’ direction, Mr Peters went to lunch 22.

[59] When asked in cross examination about the events on 24 January 2014, Mr Peters attempts to obscure the issue by repeatedly referring to the email exchange on 24 January 2014 between Ms Loftus and Ms Green which, as a matter of fact, does not specifically refer to “pallets”. Eventually, Mr Peters gives evidence that he did work as directed 23. As I have previously stated, Ms Loftus’ evidence was not subject to cross examination. I prefer the evidence of Ms Loftus regarding this event.

[60] As a result of Mr Peters not moving the pallets, they were ruined and eventually moved by the CEO 24.

[61] On 14 January 2014, the Applicant was issued with a written warning. Mr Peters makes two complaints about the warning. Firstly, it was written while he was on annual leave and he only collected it on 24 January 2014. Secondly, it was not “descriptive” 25. The written warning pared to its simplest is that, Mr Peters would not carry out reasonable and lawful instructions. It is possible in such circumstances for a simple allegation to be obscured by argument over the detail. However, in my view, the details in the written material provided to the Commission, aptly describe and support the Employer’s contention that the Applicant treated instructions both verbal and written as optional and a source for questioning. Plainly, on the material, Mr Peters’ behaviour and conduct would inevitably journey towards his dismissal. I now turn to that conclusion.

[62] It is not my role to determine each and every contested issue in these proceedings. However, the Applicant’s approach continually, in cross examination, was to assume that the Commission ought to accept his evidence because, in the absence of the Employer having a record of him specifically refusing to obey an instruction, he must have complied with those instructions. I am not persuaded that both those propositions are harmonious. The burden of proof lies with Mr Peters and the utility of denying the allegation and asking for specific proof can only go so far.

Communication with Directors of PMM

[63] I now turn to the “tipping point” which led to Mr Peters’ dismissal and that was the email to Ms Rose. Ms Rose is the chairperson of PMM.

[64] Staff at PMM were provided with an updated Code of Conduct. Point 2 of the updated Code of Conduct states:

“There shall be no direct contact or liaison by PMMRAC [Employer] Representatives with the Board of Directors or elected representatives of the Communities.” 26

[65] “PMMRAC Representative” is a generic term inclusive of employees. Mr Peters signed to say that he read and would abide by the conditions of the updated Code of Conduct on 24 January 2014.

[66] On 31 January 2014, Ms Green conducted a staff meeting to discuss the updated Code of Conduct. Mr Peters was present and the records of the meeting indicate that he specifically asked questions in relation to Point 2 set out above in paragraph [64]. Mr Peters was informed, “it is the Housing Officers roll (sic) to speak to Tenants regarding all tenancy related matters and that is what he must keep his conversations with directors about. All PMMRAC matters stay at PMMRAC and the community. The decision making process stops with the CEO.” 27

[67] Ms Green’s written evidence was an accurate reflection of the documentary evidence of the staff meeting. This evidence was unchallenged.

[68] Mr Peters’ email to Ms Rose includes a chain of emails in which Ms Kereopa describes Ms Rose as “sensitive”. Ms Green describes Ms Rose’s response to having been given Mr Peters’ email as “irate” and “livid”.

[69] Ms Rose, according to Ms Green’s evidence, did not want to speak to Ms Kereopa or Mr Peters ever again 28.

[70] Ms Rose is an “Elder” in the community and has been a Director of PMM since 2009. Ms Green described Ms Rose as “important and highly respected” 29.

[71] I find that not only did Mr Peters breach the updated Code of Conduct and disregard an instruction from his CEO. I also find that he sent a copy of the email and its attachments to Mr Wilson, another Director of PMM Council and a further person who is described as a community leader. This last person has nothing to do with PMM operations. The emails, as Mr Peters conceded, were internal communications between PMM employees. I can only describe Mr Peters’ actions in emailing Ms Rose as deliberate, inexcusable and again contesting the lawful and reasonable direction of the CEO.

[72] Having been dismissed, Ms Green’s evidence is that Mr Peters sought a one-on-one meeting with her. At some point in the meeting, Ms Green felt threatened and concluded the meeting. At this point, Ms Green escorted Mr Peters out of the building and reported the threat to Ms Mas, Human Resources Officer. Ms Green’s written and oral evidence of the circumstances of this one-on-one meeting with Mr Peters remained undisturbed in cross examination.

[73] Mr Peters’ explanation, in oral evidence, was that he did not have a private discussion with Ms Green. Ms Kereopa and Ms Mas confirm and corroborate that Ms Green and Mr Peters had a private conversation. Further, Ms Mas gave evidence Ms Green reported to her that Mr Peters had verbally threatened her. I am satisfied on the evidence, that the act complained of by Ms Green actually occurred.

[74] Before concluding, because of the overwhelming evidence regarding Mr Peters’ conduct, it is not necessary for me to consider the Employer’s allegations regarding his retention and distribution of material confidential to PMM.

[75] In conclusion, I find, taking into account the oral evidence and in particular the detailed quality documentation, that after an accumulation of instances where Mr Peters would not follow reasonable and lawful instructions, he was dismissed for reasons which are sound, defensible and well founded. Over a relatively short period of time, I have a large amount of documentation in which he disobeyed, contested or obfuscated instructions from the Employer. Ultimately, when instructed not to communicate with the directors of the PMM Council, Mr Peters did the opposite and copied emails to Ms Rose, Mr Wilson and another person outside the organisation on matters which should have remained within the organisation. Having been confronted with such a deliberate disregard for the CEO’s instructions and contravention of the updated Code of Conduct, Mr Peters tried to persuade the Commission that the communication was only to Ms Rose as a tenant and he did not know that Ms Rose or Mr Wilson were directors of the PMM Council. I was not remotely persuaded by his proposition or evidence.

[76] I find that the Employer had a valid reason to dismiss Mr Peters.

s.387(b) - notification of the reasons for termination of employment

s.387(c) - opportunity to respond

[77] On 11 February 2014, Mr Peters was asked to attend a meeting with his supervisor, Ms Kereopa, Ms Mas, Human Resource Officer and the CEO, Ms Green.

[78] Ms Mas gave written evidence that, at the meeting on 11 February 2014, words to the following effect were exchanged:

CEO: “John, did you write an email to Nyaparu Rose?”

Applicant: “No, I’m not allowed to do that.”

CEO: “John, I’m going to ask you again. Did you write any communication to Nyaparu Rose?”

Applicant: “I’ve already told you I’m not allowed to, so why would I?”

CEO: “I have that email.”

Applicant: “I’m not allowed to do that.”

[79] Ms Mas continues her written evidence:

“Ms Green gave him a copy of the email, and after that handed him an envelope, into which I had earlier placed the dismissal letter and the annexure.”

[80] The annexure attached to the letter of dismissal sets out some of the reasons for Mr Peters’ dismissal.

[81] The “tipping point” for Mr Peters’ dismissal was his email to Ms Rose. On this issue, Mr Peters was asked whether he emailed Ms Rose and at the time said words to the effect of “No, I am not allowed to do that.”

[82] Similar to other issues when cross examined, Mr Peters’ response as to whether he knew Ms Rose was a director of PMM, he responded, “I don’t know” 30 or “do you have any evidence to say that she’s a board member”31 or “I never had anything to say Margaret is on the board of directors”32.

[83] The Employer is not a large organisation. Ms Rose was a client tenant allocated to Mr Peters for 12 months. Despite these circumstances, Mr Peters gave evidence that he did not know that Ms Rose was a director of PMM.

[84] Having had the opportunity to observe Mr Peters’ oral evidence, I find that his evidence was not based on actual knowledge but on what he preferred his knowledge to be.

[85] I find Ms Mas’ evidence that Mr Peters was given the opportunity to respond to sending the email to Ms Rose (the “tipping point”) and denied that he did until presented with the email by the CEO.

s.387(d) - support person

[86] I am satisfied on the evidence that Mr Peters was advised, by email, that he could have a support person present at the meeting on 11 February 2014 which subsequently led to him being given a letter of termination of employment. Further, I am satisfied that the ability of Mr Peters to have a support person present was also raised at the commencement of the meeting on 11 February 2014. 33

s.387(e) - unsatisfactory performance

[87] It is unnecessary to repeat the details of Mr Peters’ unsatisfactory performance and conduct as significant aspects of it led to his dismissal and are set out under the criterion s.387(a) of the FW Act above. I am satisfied that Mr Peters was given opportunities to remedy his performance.

s.387(f) - size of enterprise

s.387(g) - Human Resources

[88] The Employer is a small employer and I am satisfied that Mr Peters was afforded a fair go all round both during his employment and at the time of his dismissal.

s.387(h) - other matters

[89] There are no other matters in this application which require my consideration.

CONCLUSION

[90] In conclusion, for the reasons set out above, I am satisfied that Mr Peters’ dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

C Peters on behalf of the Applicant.

D White, Solicitor on behalf of the Respondent.

Hearing details:

2014:

Port Hedland,

22 July.

 1   Exhibit R2

 2   Exhibit R4(43)

 3   Exhibit R4(20)

 4   Exhibit R4(21)

 5   Exhibit R4(30)

 6   Exhibit R4 (20)

 7   Exhibit R4

 8   Brink v TWU PR922612 at paragraph [7]

 9   Transcript PN46

 10   Transcript PN43

 11   Transcript PN49

 12   Transcript PN413

 13   Transcript PN15

 14   Transcript PN423 to PN425

 15   Exhibit A3

 16   Exhibit R6 and Transcript PN590

 17   Transcript PN337

 18   Exhibit R4 (16)

 19   Transcript PN352

 20   Transcript PN355

 21   Transcript PN593

 22   Exhibit R8

 23   Transcript PN389 to PN397

 24   Exhibit R5

 25   Exhibit A5

 26   Exhibit R4(48)

 27   Exhibit R4(47)

 28   Exhibit R5

 29   Exhibit R5

 30   Transcript PN456

 31   Transcript PN457 and PN458

 32   Transcript PN460

 33   Transcript PN504 to PN518

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