Mr John Remington-Gurney v Aviation Australia Pty Ltd
[2010] FWA 7681
•4 OCTOBER 2010
[2010] FWA 7681
The attached document replaces the document previously issued with the above code on 4 October 2010.
Print Identifier was incorrectly entered
Anne Little
Associate to Deputy President Swan
Dated 14 October, 2010
[2010] FWA 7681 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
Mr John Remington-Gurney
v
Aviation Australia Pty Ltd
(U2009/3645)
DEPUTY PRESIDENT SWAN | BRISBANE, 4 OCTOBER 2010 |
The Application
[1] The applicant seeks relief pursuant to section 643(1)(a) of the Workplace Relations Act 1996 (Cth) (‘the WRA Act’) on the basis that the termination of the applicant’s employment was harsh, unjust or unreasonable.
Jurisdiction
[2] The application falls under the jurisdiction of the WRA Act as it was filed on 1 June 2009 [section 11, Part 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act’)].
[3] From 1 January 2010, the application was transferred to Fair Work Australia (FWA) [section 11 of Schedule 18 to the Transitional Act].
[4] Statement of Agreed Facts
“1. In or around mid-2008, Aviation Australia (“the Respondent”) advertised the position of Instructor – Aircraft Mechanical (‘the Position’) in the Australian Newspaper.
2. Aviation Australia is a registered training organisation. It provides training for people wishing to qualify as aircraft maintenance engineers or flight attendants.
3. Aviation Australia is a registered Australian Proprietary Company.
4. In or around August 2008, Mr John Remington-Gurney (‘the Applicant’) submitted to the Respondent a written application for the Position.
5. On 12 August 2008, the Applicant was interviewed for the position by Mr Colin Jameson, Technical Training Manager (‘Jamieson’) , and Mr Michael Staples, Chief Instructor (‘Staples’).
6. The Applicant was advised that he was not successful because his voice projection was not sufficiently strong.
7. In or around the first week of September 2008, the Applicant underwent a further interview.
8. On 22 September 2008, the Respondent made a written offer of employment to the Applicant.
9. On or about 23 September 2008, the Applicant accepted the offer of employment
10. The applicant commenced in the employ of the Respondent on 29 September 2008 in the position of Instructor – Mechanical within the Respondent’s Technical Training Department.
11. In March 2009 the Applicant underwent a performance review. No performance issues were noted.
The Complaint
12. On Thursday 2 April 2009, Mr Colin Jameson (‘Jameson’) (an employee of the Respondent) approached the Applicant and asked that he attend a meeting.
13 The meeting commenced shortly after that conversation. In attendance was Jameson, Mr Michael Staples (‘Staples’) (also the employee of the Respondent) and the Applicant.
14. Mr Jameson showed the Applicant a copy of a complaint dated 1 April 2009. The Applicant was allowed to read the document, but was not given a copy.
15. At the conclusion of the meeting, the Applicant was informed that a further meeting would be organised for the following day and that, in the intervening period, the Applicant was stood down from teaching duties.
6 April 2009
16. On 6 April 2009 the Applicant attended for work at his usual time of 6.30am.
17. At 7.am, Staples approached the Applicant and advised the Applicant that a meeting was to be held in the office of Terry Ward, General Manager, Training and Operations (‘Ward’).
18. The meeting commenced immediately, and was attended by Staples, Ward, Jameson and the Applicant.
19. At the conclusion of that meeting, the Applicant was given a notice to show cause why his employment should not be terminated.
20. The Applicant was advised that he was suspended on full pay, and was escorted from the Respondent’s premises.
Events subsequent to 6 April 2009
21. On 8 April 2009, the Applicant responded in writing to the show cause notice.
22. On 14 April 2009, the Respondent wrote to the Applicant terminating the Applicant’s employment summarily.
23. On 1 May 2009, the Applicant applied to the Australian Industrial Relations Commission for relief in respect of the termination of his employment.”
The Applicant’s evidence
[5] The Notice of Termination, inter alia, states as follows:
“As an instructor and therefore an ambassador for Aviation Australia you are expected to be able to make decisions in regard to portraying our organisation in an equitable and non-discriminatory manner. The behaviour aforementioned is considered by Aviation Australia to be serious misconduct.”
[6] Around 1 April 2009, a group of students lodged a written complaint containing a number of allegations against the applicant.
[7] The primary allegations were:
- that the applicant ‘threw a huge dictionary’ at a sleeping student;
- that the applicant threatened to report students’ poor performance to their Embassies;
- that the applicant said that the students were a disgrace to their countries.
[8] On 2April 2009, the applicant was asked to meet with Mr Colin Jameson. A copy of the complaint was given to the applicant. The copy contained the names of the students. The applicant was not given a copy of the complaint.
[9] While preparing a response, the applicant was told that he would be removed from his teaching duties and would perform alternative duties until the matter was investigated.
[10] On 6 April 2009, the applicant attended work at 6.30am and was told that a meeting would be held at 7.30am that day.
[11] At that meeting, the applicant was given a notice to ‘show cause’ why his employment should not be terminated.
[12] On 8 April 2009, the applicant provided his written response to the ‘show cause’ notice.
[13] On 14 April, the applicant’s employment was summarily terminated.
[14] The applicant says that the termination of his employment was harsh, unjust or unreasonable on the basis that:
- the applicant did not engage in the conduct alleged against him;
- in the alternative, if the conduct alleged did occur, then it did not constitute grounds upon which to summarily dismiss him;
- further, in the alternative,
- the respondent did not afford natural justice to him resulting in the investigatory process being flawed so much so that the termination was unjust;
- further or in the alternative,
- the termination was otherwise harsh, unjust and/or unreasonable.
[15] The respondent is a registered training organisation, a group training organisation and a registered Australian Proprietary Company.
[16] The respondent provides training for airlines, aerospace companies and regulatory authorities for some countries in the Asia Pacific region.
[17] The training includes training of aircraft cabin crew as well as aircraft maintenance engineering employees.
[18] Upon application for the position, the applicant was required to hold a Certificate IV in Training and Assessment. As the applicant did not hold that qualification, he committed to pay for and complete the Certificate personally.
[19] During his employment, the applicant had expressed various concerns about some of his students, including the following:
- Students were required to attend at least 85% of classes in order to gain a pass grade;
- Many students attended only the minimum number of classes required and
- Many met the attendance requirement but slept through class and/or packed up early [Exhibit 2 – point 55].
[20] The applicant, being concerned that students were barely passing their examinations, sought information from the respondent regarding the history of student pass marks, pass-fail rates and the procedures for addressing re-sitting of examinations should a student repeatedly fail [Exhibit 2 – point 80]. The applicant says that he did not receive any response to his requests.
[21] For most of his employment with the respondent, the applicant was not a Certificate IV Qualified Instructor. Notwithstanding that he had raised the issue of his training with the respondents on a number of occasions, no training was undertaken
[Exhibit 2 – points 89 – 101].
[22] A positive Performance Review of the applicant was conducted by the respondent in March 2009.
[23] In March 2009, the applicant had marked his students’ examination papers and was concerned at the poor pass rate. One student, who had failed the same examination on four occasions, had received a mark of 16%.
[24] The applicant says that he was concerned about the lack of intervention for students who were repeatedly failing their examinations.
The meeting of 2 April 2009
[25] The applicant was asked to attend a meeting with Colin Jamieson [Technical Training Manager] and Mick Staples [Chief Instructor]. The applicant did not know the purpose of the meeting and was not asked by Mr Jamieson if he wanted a support person present with him.
[26] The applicant was advised that students had made allegations against him.
[27] The applicant was shown a document which contained the students’ complaints. [Exhibit 2 – JRG4].
[28] The applicant was asked to respond to the allegations.
[29] The applicant’s immediate responses to the allegations were:
(a) That he had not told students that he would report them to their Embassies. Rather, the applicant said he had told students that “if they were terminated from the course that their student visas would be put in jeopardy and that they may be sent home, as had two members of the class already.” [Exhibit 2 – point 137], and that;
(b) “I’ve never said that the students are a disgrace to their countries. I did say that the 9/11 terrorists were a disgrace to their countries. I told the students that in light of the 9/11 terrorist attacks, the Immigration Department was likely to look seriously at students who had poor attendance or poor results.” [Exhibit 2 – point 138], and that;
(c) “I had never thrown something at a student. I completely deny that.” [Exhibit 2 – point 141].
[30] The applicant says that in May 2009, after he had been dismissed, the respondent provided his solicitors with a handwritten note written by Mr Jamieson in relation to an apparent subsequent conversation the applicant had held with Mr Staples. The note read as follows:
“During an interview with John at which it was explained to him that students had complained about his behaviour in class. John stated that students had been told to shut-up and that he had made the derogatory remarks mentioned in the complaint – however, he stated that these remarks could be justified by the students’ behaviour as they were a nuisance class.
He denied striking any student as described in the complaint.” [Exhibit 2 – JRG 6].
[31] Save for his denial that he had struck a student, the applicant denied any knowledge of the remainder of the content of this note.
[32] The applicant agreed that he had told the class en masse to ‘shut-up’ but had never directed those comments to any individual student.
[33] A further respondent note had been disclosed to the applicant during Discovery prior to the hearing. That note stated that the applicant advised both Colin Jamieson and Michael Staples that he told his students that they were a disgrace to their countries and that the applicant had threatened a group of international students that he would report them to their Embassies. [Exhibit 2 – JRG 7]. The applicant is further alleged to have said that poor student performance caused him frustration in his work and that was to blame for his actions. [Exhibit 2 – JRG 7].
[34] The applicant did not agree with the content of that note.
Meeting of 6 April 2009
[35] On this date, the applicant met with Mr Terry Ward (General Manager), Mr Colin Jamieson and Mr Michael Staples.
• The allegations were raised with the applicant who repeated the denials previously made.
• The applicant said that Mr Terry Ward advised him that some of the students were sons of Ambassadors.
• The applicant alleges that Mr Ward asked why the applicant had been giving his students half marks and that “this is not how we mark papers”. [Exhibit 2 – 172].
• At the end of the meeting, the applicant was given a ‘show cause letter’, giving him seven days to respond to why he should not have his employment terminated.
• The applicant still had not been given a copy of the students’ complaints.
Applicant’s responses to specific allegations
[36] Re a) The alleged ‘throwing of the dictionary’.
• The applicant, in denying this allegation, said he had no particulars of when the dictionary was allegedly thrown or at whom it was thrown.
• Students did not have huge dictionaries. Most used electronic translating devices the size of a pocket calculator or mobile phone.
• The only dictionaries in the classroom were Aviation Dictionaries which are approximately A4 size and 2-3 cms thick. The respondent said that it was an Aviation Dictionary which was thrown at the student. The applicant says that these Dictionaries were only provided to students shortly before he left his employment in April 2009. Prior to being advised of this allegation on 2 April 2009, “no student, fellow employee, or manager for Aviation Australia raised this incident with me at any time prior to 2 April 2009.” [Exhibit 2 - 201
• The only incident the applicant can recall in the classroom was when he “placed something onto a desk in front of a sleeping student, making a noise that was loud enough to wake them up. I believe that this was a training aide I made out of plywood, nuts and washers, which would have made a jingling noise.” [Exhibit 2 – points 204 and 205].
[37] Re b) The alleged “disgrace to their countries” comment
• This was denied by the applicant. The applicant said he was unaware of the particular nationalities of his students and would not have known which Embassy was relevant to particular students.
Other matters
[38] The applicant referred to his lengthy history of training students from varying backgrounds. This work has been undertaken in Wales, Port Headland and with Aboriginal Airlines.
Post dismissal matters
[39] Since May 2009, the applicant has worked three days per week as a volunteer with the Caboolture Aviation Museum.
[40] The applicant has worked one day per week in his wife’s business doing cleaning and similar work.
[41] Since termination of employment, the applicant has been unable to obtain paid employment.
[42] The applicant cited the various businesses where he had applied unsuccessfully for employment in aviation related work. [Exhibit 2 – point 226].
[43] Applications unsuccessfully had also been made to non-aviation businesses. [Exhibit 2 – point 229].
Respondent’s overview
[44] The complaint against the applicant was made by eleven students. The complaint was in writing and signed by all complainants.
[45] The essence of the complaint went to the following issues:
• assault;
• improper threats; and
• racially offensive language.
[46] Upon receipt of the complaints, a staff member of the respondent spoke to the students to “verify the veracity of the matters alleged.” [Outline of Submissions on behalf of the respondent – point 7]
[47] The respondent says that the applicant was made aware of the content of the allegations and “while he denied the actual allegations, he admitted to conduct which the respondent’s representatives were concerned about.” [Outline of Submissions on behalf of the respondent] – point 8]
[48] At the conclusion of the meeting of 2 April, 2009, the applicant was provided with a copy of the respondent’s Dispute Procedure policy informing the applicant that he could have a support person present with him when attending meetings involving disputes.
[49] The respondent remained dissatisfied with the applicant’s responses to the allegations and on 14 April 2009 the applicant’s employment was terminated summarily.
Respondent Witnesses
Mr Fazal Nasurudeen
[50] Mr Nasurudeen is a student from Malaysia. From 23 October 2008 to 7 November 2008, Mr Nasurudeen was taught by the applicant.
[51] Mr Nasurudeen did not remember the date upon which a particular incident happened [the incident], however, he recalls the applicant picking up a book from a student’s (Will) desk and using his left hand to throw the book at another student, Brad.
[52] Mr Nasurudeen could not see where the book had struck Brad because of where he [Mr Nasurudeen] was sitting in the room. Upon throwing the book, the applicant called out “Hey!” and Brad appeared to be startled, but he did not say anything to the applicant.
[53] The book thrown was identified by Mr Nasurudeen as an Oxford Intermediate Learner’s English-Chinese dictionary.
[54] One week after the incident occurred, the applicant told the students that all of them had failed their exam. Mr Nasurudeen said that the students were told that ‘they were a disgrace”. Further, the applicant is alleged to have stated “that we are going to call Immigration and ask them to cancel your visa. After that we are going to call each of your countries embassy and we are going to make a formal statement saying how disgraceful you have been to your country”. [Exhibit 3 – point 10]
[55] Mr Nasurudeen says that Brad advised the applicant that he was not a ‘gentleman’ and particularly so because he had thrown a book at him. Mr Nasurudeen said he heard the applicant respond with “Hey, look, look shut up!”.
[56] Mr Nasuruedden also said that if a student was of Asian origin and asked a question in class, he was often told by the applicant to ‘shut up’ and on one occasion, the applicant told a student to ‘fuck off’. [Exhibit 3 – point 13].
[57] Mr Nasurudeen arranged for all students to sign the letter of complaint regarding the applicant.
[58] After lodging the complaint, Mr Noel Collison attended the classroom and went through each complaint with the students and asked the class to verify each of the matters raised in the complaint, which the students did.
Mr Shi Chang Zhang
[59] Mr Zhang is a student originally from China. Mr Zhang was taught by the applicant from 23 October 2008 to 7 November 2008.
[60] Mr Zhang’s evidence was similar to that given by Mr Nasurudeen. On a particular occasion, Mr Zhang had noticed that Brad was asleep and he saw the applicant take the Dictionary from his desk and throw it at Brad. He did not recall the applicant or Brad saying anything at the time of the incident.
[61] The evidence given by Mr Zhang around the words allegedly said by the applicant to the students when they had failed their exams and the address to the class by Mr Collison was similar to that given by Mr Nasurudeen.
Mr Wing Ho Hau
[62] Mr Hau recalled the incident occurring somewhere around December 2008 or January 2009.
[63] Mr Hau was seated behind Brad and he agreed with the description of events as detailed by Mr Zhang and Mr Nasurudeen. Mr Hau noticed that the dictionary made a sound when it hit Brad’s shoulder.
[64] Mr Hau recalled the applicant saying that none of the students had passed their exam and that the applicant said words to the effect, “What is the reason for the failure. Didn’t you guys study. Why don’t you ask questions during class if you don’t understand. You are an embarrassment to your country”. He also recalled the applicant telling students to “shut up” if they asked questions during class.
[65] Similar evidence was given by this witness to that of the abovementioned students as it related to Mr Collison addressing the class.
Mr Tung Ching Tsai [Brad]
[66] Mr Tsai said it was not unusual for him to doze off during the Modules taught by the applicant as “he found the classes very boring”. [Exhibit 11 – point 6]
[67] During one of these classes, he felt something strike his left shoulder causing him to wake up. He heard the applicant say at that time, “good morning”.
[68] Mr Tsai said that the strike did not hurt him, but merely caused him to wake up.
[69] Mr Tsai said he was not surprised that the applicant had thrown something at him because on a number of occasions he had seen the applicant taking photographs of students sleeping during class.
[70] Upon being told by the applicant that all the students had failed their exam, he recalls the applicant saying words to the effect: “The whole class has failed the exam. You represent your country and you are a disgrace to your country.”
[71] Mr Tsai gave similar evidence to that given by other students as it related to the visit to the classroom by Mr Collison.
Evidence of Mr Noel Collison
[72] Around 30 March 2009, Mr Collison had a discussion with Mr Nasurudeen. Mr Collison said that the comments from Mr Nasurudeen went to issues such as a perceived lack of confidence on the applicant’s part with course materials and the refusal to answer questions posed by students.
[73] Mr Narusudeen also advised Mr Collison that after all the students failed a particular exam, he said the applicant “threatened to report our marks to the immigration department. As a result of Mr Remington-Gurney’s comments, many of the students are concerned about their visas. There has also been a serious incident in the classroom.” [Exhibit 5 – point 4]
[74] Mr Collison was advised by Mr Jameson to speak to the students to verify the comments made and to invite students to make their complaint formally in writing.
[75] Upon hearing from the students, Mr Collison believed all students were in agreement witht the allegations made, however he recalled that only three students verified that the applicant had thrown a dictionary at Brad. Subsequently, Mr Collison received the written complaint. [Exhibit 5 – point 9]
[76] Beyond providing Mr Staples with the letter, Mr Collison had no further involvement in the matter.
Evidence of Mr Staples [Chief Instructor]
[77] Mr Staples recalled the applicant raising with him issues concerning his students’ behaviour in class. This issue was only raised once by the applicant and Mr Staples advised him to seek assistance from either himself or the Senior Instructor who would then consider addressing the class.
[78] Mr Staples’ evidence around the meetings held with the applicant after the receipt of the complaint is similar to that given by Mr Jameson.
[79] Mr Staples recalled the applicant saying that he did threaten the students that they would be reported to their Embassies for not performing well in class.
Evidence of Mr Colin Jamieson [Technical Training Manager]
[80] The applicant had undergone induction courses with the respondent. Teachers were required to complete an induction checklist on an ongoing basis. The applicant had not complied with this request, despite being reminded to do so frequently by Mr Jameson.
[81] Mr Jameson had considered the complaint made by the students and after speaking with Mr Collison, he believed that the students’ concerns were genuine.
[82] Mr Jameson was particularly concerned with the allegation that the applicant had thrown a book at a sleeping student.
[83] Mr Jameson believed that he had undertaken his meetings with the applicant in an appropriate manner. He had let the applicant read the complaint and had provided him with a copy of the Aviation Australia staff dispute policy.
[84] Mr Jameson had not advised the applicant of the purpose of the meeting beforehand. He said that “the purpose of the meeting was to make him aware of the complaint, in accordance with Aviation Australia’s company policy.” [Exhibit 7 – point 10]
[85] The applicant was asked to go through each complaint and provide a response.
[86] The applicant allegedly stated:
“I am not happy about the complaints. I have to do something to
control the class as their behaviour is not good. I have told students to ‘shut up’ and I have made derogatory remarks to the students, however what else can I do to control a class that is such a nuisance.” [Exhibit 7 – point 10]
[87] The applicant denied that he had struck a student with a book.
[88] Mr Jameson advised the applicant that further investigation of the complaints was required and, in the interim, the applicant would be stood down from his teaching duties.
[89] At the meeting on 6 April 2009, the applicant stated:
“I did threaten the students that I would report them to their embassies. I also told the students that in the current terrorist climate the results would be looked on by their countries in a very bad light.” [Exhibit 7 – point 15].
Evidence of Mr Terrence Ward [General Manager]
[90] After being made aware of the students’ complaint, Mr Ward requested that Mr Jameson conduct an interview with the applicant.
[91] Mr Ward confirmed that the applicant had affirmed all components of the students’ complaint, with the exception of the allegation that he had thrown the book at a sleeping student.
[92] On 3 April 2009, Mr Ward determined that a ‘show cause’ letter be drafted and given to the applicant.
[93] On 6 April, 2009, Mr Ward was present at the meeting with the applicant, together with Messrs Jameson and Staples.
[94] The applicant denied throwing a book at a student, however, he did agree that he had told students to “shut up”; that he had not followed the recognised marking guide with his students and that he had not threatened to report the students to their Embassies, but that he was “merely pointing out that there is a spotlight on Muslims in the current climate of terrorism and they might be deported if their academic performance does not improve.” [Exhibit 8 – point 15]
[95] Upon receipt of the applicant’s response to the ‘show cause’ letter, Mr Ward determined that the applicant had not specifically denied the allegations made by students and the decision was made to terminate his employment.
Conclusion
[96] Both parties concede that there are two significant points for determination in this matter. These are:
a) what words were used by the applicant to students when the examination results were brought to their attention, and
b) whether or not the applicant had thrown a book at a sleeping student.
Re a)
[97] The evidence shows that the range of comments alleged to have been said by the applicant to students did, with varying emphasis, occur.
[98] The comments, however, need to viewed within context.
[99] The context is that, after students had performed badly in their exams, the applicant addressed them.
[100] The applicant’s comments may have been the result of frustration on his part because students appeared to be non-responsive to his teaching methods and had performed badly.
[101] Some of the comments made by the applicant were valid – ie comments about a requirement on the part of the respondent to notify the Immigration Department if there was on-going failure by students to complete their studies. There was no requirement, however, on the part of the respondent to make contact with an individual student’s Embassy in light of that student’s failure.
[102] The applicant’s comments, which I have accepted did occur, about ‘9/11 terrorism’ and Muslims displayed, in my view, a lack of judgement on his part. The comments were not made in a friendly and relaxed atmosphere where a general discussion around topics of that nature might occur. They were made within the context of an address from the applicant to students about their poor performance. That students were upset with these comments is not surprising.
[103] The context in which the comments were made must also include a consideration of the fact that the students were overseas students. There were cultural considerations to be made.
[104] It was clear when the students were giving their evidence that they did not have a strong command of English. That in itself should have signalled to the applicant that there was a need to exercise some caution with general commentary so that misconceptions might not arise.
[105] The evidence shows that students were offended at the reference to them being an embarrassment to their countries. Those comments, in my view, were extreme in nature. The comments also failed to take into account the reality of the respondent’s business and the fact that these overseas students were paying a significant fee to undertake the respondent’s course.
[106] Overall, the commentary made by the applicant to students was intemperate, lacked insight and was inflammatory. The respondent was justified in being concerned about the tenor of those comments.
[107] I have not accepted that the respondent would have or did react adversely to any request from the applicant for assistance in dealing with the type of behaviour he faced in the classroom.
Re b)
[108] The applicant denies throwing a book at a sleeping student.
[109] The evidence of the students affirms that a book was thrown at Brad while he was sleeping.
[110] Brad’s evidence is that the incident was of little consequence to him. He felt something on his shoulder and he woke up. He had not made any complaint about the incident and it appears only to have arisen as a topic of interest when other complaints were made about the applicant by students.
[111] In all, I accept the evidence that an incident of this nature occurred. I have also accepted that it is possible that the applicant could have forgotten the incident. Brad did not view it as being of significance and that supports the applicant’s view that it was not of any moment as between himself and Brad.
[112] The respondent, however, upon hearing of this incident, viewed it as the catalyst for the charge of misconduct against the applicant.
[113] While Brad did not complain abut the incident, the incident itself is of a serious nature. Throwing anything at a student displays serious lack of judgement on the part of a teacher. The respondent was entitled to view that incident seriously and to view it within the category of the type of behaviour which could constitute misconduct.
[114] In BiLo v Hooper[1994] 53 IR 224, the Full Bench of the South Australian Industrial Relations Commission stated:
“Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereby; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available to it at the time that the employee was guilty of the misconduct.”
[115] In the circumstances of this case, the evidence shows that the respondent conformed to the principles enunciated in the above decision.
The Legislation
[116] Workplace Relations Act 1996
652 Arbitration
(3) In determining, for the purposes of the arbitration, whether a
termination was harsh, unjust or unreasonable, the Commission
must have regard to:
Minimum entitlements of employees Part 12
Termination of employment Division 4
Section 653
(a) whether there was a valid reason for the termination related
to the employee’s capacity or conduct (including its effect on
he safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to
any reason related to the capacity or conduct of the
employee; and
(d) if the termination related to unsatisfactory performance by
the employee—whether the employee had been warned about
that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer’s undertaking,
establishment or service would be likely to impact on the
procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource
management specialists or expertise in the undertaking,
establishment or service would be likely to impact on the
procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant.
Re (a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees);
[117] A valid reason for the termination of employment existed. The reason related specifically to two particular allegations:
• The first allegation related to the comments made by the applicant to employees which went to a range of issues identified above.
• The second allegation related to an alleged assault made by the applicant on a student.
[118] I have found that the commentary, alone, made by the applicant to the students may not of itself have constituted misconduct on the applicant’s part. However, the commentary showed a serious lack of judgement on the applicant’s part, sufficient for the respondent to have issued a strong warning to him.
[119] However, the applicant’s throwing of the book at the student did constitute misconduct sufficient for the respondent to dismiss the applicant’s employment summarily.
[120] The overall actions of the applicant constituted, as well, a serious risk to the reputation of the respondent’s business.
Re (b) whether the employee was notified of that reason;
[121] The applicant was notified for the reason for the termination of his employment.
Re (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee;
[122] While the applicant was shown the letter of complaint by the students, he was not given a copy of the document. No reason has been proffered by the respondent in making that decision save for its inexperience in handling matters of this nature.
[123] I accept that the applicant was given an opportunity to respond to the specific allegations labelled against him on more than one occasion and then through a ‘show cause’ process. However, in my view, the applicant should have been given the document.
[124] While this is an impediment to the approach taken by the respondent, I accept that the applicant was fully aware of the specific issues which the respondent relied upon to dismiss him. To these allegations, the applicant accepted the general thrust of one limb of the allegations which related to comments made to students and denied the other – ie that he had thrown a book at a student.
Re (d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination;
[125] Issues of this type had not previously been brought to the attention of the respondent. The issues only emerged upon the production and presentation of a written complaint to the respondent by the applicant’s students.
Re (e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination;
[126] This is not a consideration in this matter.
Re (f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination;
[127] The respondent did not employ the services of a dedicated human resource management specialist. This in some way goes to explain why certain steps which might have been taken were such expertise available, did not occur.
[128] Overall, the process was transparent and there were ample opportunities for the applicant to consider and respond to the allegations made.
Re (g) any other matters that the Commission considers relevant.
[129] The applicant, in my view, failed to appreciate the discrete nature of the work he was required to perform. The students were primarily from outside of Australia and the respondent’s business was dependant upon maintaining appropriate standards to meet the requirements of a culturally diverse student population.
[130] In all, I have determined that the termination of the applicant’s employment was not harsh, unjust or unfair pursuant to s.643(1)(a) of the WRA Act.
[131] The application is dismissed.
DEPUTY PRESIDENT
Appearances:
J. Nolan for the Applicant
J.Dwyer for the Respondent
Hearing details:
2010
Brisbane
21, 22, 23 April.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR502366.>
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0
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