Mr Ken Mourilyan v James Hardie Australia Pty Ltd
[2010] FWA 9672
•15 DECEMBER 2010
[2010] FWA 9672 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ken Mourilyan
v
James Hardie Australia Pty Ltd
(U2010/1438)
COMMISSIONER ASBURY | BRISBANE, 15 DECEMBER 2010 |
Application for unfair dismissal remedy - employer alleged serious misconduct amounting to fraud - standard of proof - finding that allegations of fraud could not be sustained - dismissal harsh, unjust and unreasonable - reinstatement ordered.
OVERVIEW
[1] This is an application by Mr Ken Mourilyan for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The respondent is James Hardie Australia Pty Ltd (James Hardie).
[2] Mr Mourilyan commenced employment with James Hardie on 5 May 1999 in the capacity of operator-maintainer. Mr Mourilyan was dismissed on 18 August 2010. The reason for the dismissal, as set out in a letter of that date, was said to be fraudulent behaviour in relation to an unplanned absence.
[3] The application for an unfair dismissal remedy was made on 14 September 2009, within the time required in s.394(2). Mr Mourilyan is a person protected from unfair dismissal as defined in s.382 of the Act. James Hardie is not a small business and the question of whether the dismissal was consistent with the Small Business Fair Dismissal Code is not relevant. The dismissal was not a redundancy.
[4] A hearing was conducted on 14 October 2010. Mr Mourilyan gave evidence on his own behalf and evidence in support of the application was also given by:
• Mr Wayne Mills, Organiser with The Australian Workers’ Union,
• Mrs Wendy Mouilyan, Mr Mourilyan’s wife;
• Mr Billy Mourilyan Mr Mourilyan’s son; and
• Ms Carolyn Farmer, Mr Mourilyan’s sister-in-law.
Evidence was given for James Hardie by:
• Ms Debi O’Brien, Human Resources Manager; and
• Mr Michael Hogan, Finishing Manager.
EVENTS LEADING TO THE DISMISSAL
Background
[5] Mr Mourilyan’s wife suffers from Parkinson’s Disease diagnosed in 2007. This disease has slowly progressed to the point that from 2007 Mrs Mourilyan has been unable to work. In October 2008, Mrs Mourilyan was diagnosed with advanced uterine cancer. She undertook treatment including a modified radical hysterectomy and chemotherapy. Mrs Mourilyan is in remission from the cancer but continues to be significantly affected by Parkinson’s disease. Mrs Mourilyan also suffers from severe depression. Mrs Mourilyan’s medical conditions were not in dispute.
[6] Mr Mourilyan’s roster required him to work a roster comprising four days on and four days off. The roster required Mr Mourilyan to work two day shifts of twelve hours each followed by two night shifts of twelve hours each. Mrs Mourilyan’s condition fluctuates and she is not always well enough to be alone at night while Mr Mourilyan is working night shifts. In particular, Mrs Mourilyan has stages in the progression of her Parkinson’s disease where she is prone to falling over, and requires assistance during the night to use the toilet. There was an arrangement whereby Mrs Mourilyan’s sister, Ms Farmer, would stay the night with Mrs Mourilyan to provide any assistance she required, while Mr Mourilyan was working night shifts.
[7] Mr Mourilyan was rostered to work two night shifts, on the nights of Monday 9 and Tuesday 10 August 2010. Those dates fell in the week of the Royal National Show. Some weeks prior to the Show, Ms Farmer informed Mr and Mrs Mourilyan that she would be unable to assist with caring for Mrs Mourilyan, during Show week, as she was planning to assist another sister with a stall at the Show. Mr Mourilyan said that on being informed of Ms Farmer’s unavailability, he had a discussion with his wife and it was decided that she could manage on her own for one night but not two. Mr Mourilyan said that he made a note on his roster to remind himself to take time off to care for his wife during this week. Mr Mourilyan did this by circling the night shift on 10 August 2010 and writing the word “sickie” on his roster. The roster document that Mr Mourilyan made this notation on is his personal copy, which is an A3 sized two page document kept in a bag that Mr Mourilyan took to work.
[8] Mr and Mrs Mourilyan’s son Billy, who is 25 years of age, also resides in the family home. Billy Mourilyan has a separate entrance and his own part of the house, and effectively comes and goes as he pleases. Billy Mourilyan was unemployed at the time that events leading to Mr Mourilyan’s dismissal occurred, and was generally at home during the day. Mr and Mrs Mourilyan both said in their evidence that they do not ask Billy to provide care for Mrs Mourilyan at night, and no request was made to him in relation to 10 August 2010. Billy Mourilyan said, in response to a question in cross-examination, there would not have been a problem if he was asked to care for his mother on 10 August 2010.
[9] Mr Mourilyan said that after making the notation on his roster with respect to the night shift on 10 August 2010, he forgot to fill out an application form in advance to have that shift off. Mr Mourilyan also said that wrote the word “sickie” on his roster, and not “carer’s leave” or some other words, as prior to this incident, he understood that sick leave was available not just for when he was sick but when members of his family were sick and needed to be cared for. Mr Mourilyan also said that the forms supplied by James Hardie for requesting leave provided for various types of leave such as annual leave, long service leave and sick leave. Further Mr Mourilyan said that his payslip only ever referred to sick leave and he treated carer’s leave or personal leave simply as sick leave, and for that reason wrote “sickie” on his roster.
[10] Mr Hogan said that on 6 August 2010, Mr Peter Jones, the Finishing Co-ordinator, gave him a copy of a roster that he and a leading hand, Mr Darren Calahane found on the onloader operator’s table. Neither Mr Jones nor Mr Calahane gave evidence in these proceedings, but it was not in dispute that Mr Jones photocopied the document and put it back where it was found, and that Mr Mourilyan did not know that this occurred until he was shown the copy of his roster on 16 August 2010. No issue was taken up with Mr Mourilyan by any manager or supervisor, about the roster, or anything written on it, until 16 August 2010.
[11] According to Mr Hogan, the word “sickie” was “notated” on the document in relation to 10 August 2010. Mr Hogan said that initially he thought it may have been Mr Mourilyan’s document because Brisbane Lions games were marked on it, and Mr Mourilyan is a huge fan of the Brisbane Lions.
[12] Mr Mourilyan was absent from work for his rostered night shift on 10 August 2010. According to Mr Mourilyan, this absence was as a result of him suffering from an attack of diarrhoea and vomiting, which was attributed to him consuming a meal made by his wife on Sunday 8 August 2010. Mrs Mourilyan said that she sometimes makes meals to store in the fridge and to be eaten later. On Sunday 8 August 2010, Mrs Mourilyan made stir fried chicken and noodles.
[13] On Monday 9 August 2010, Mrs Mourilyan and Billy Mourilyan reheated the stir fry and ate it for lunch. Mr Mourilyan was asleep in preparation for working night shift on that evening. Mrs Mourilyan prepared a container with the stir fried chicken and noodles for Mr Mourilyan to take to work on the evening of 9 August 2010. Mrs Mourilyan said that on the evening of 9 August 2010 she heard Billy vomiting. Later that evening she was sick and also vomited. Mrs Mourilyan was sick and continued to vomit that night and into the next day. Mrs Mourilyan said that she has a limited sense of smell as a result of suffering from Parkinson’s disease, and it was likely that the chicken she used to make the meal may have been off. Early on the morning of 10 August 2010 Mrs Mourilyan took some medication which helped her symptoms, and then went to a Parkinson’s support Group meeting at 9.30 am.
[14] Under cross-examination, Mrs Mourilyan said that she knew that Mr Mourilyan took the chicken to work because she packed it for him and left it in the fridge with his other food and she always made sure that he took his food to work. Mrs Mourilyan said that she could not be sure that Mr Mourilyan ate that meal. Mrs Mourilyan maintained that when she returned from her meeting on 10 August 2010, she saw Mr Mourilyan throwing up and that he was sitting on the toilet with the door to the bathroom open.
[15] Billy Mourilyan confirmed that he and his mother ate the chicken for lunch on 9 August 2010, and that later that night he woke up and was physically sick. This continued during the following day. Billy also said that he was aware that his mother was sick that night. Billy started to recover by lunchtime on 10 August 2010. Further, Billy said that he was aware that Mr Mourilyan took some of the chicken to work with him, but not that he ate it.
[16] Mr Mourilyan said that he started work at 6.00pm on 9 August 2010. At approximately midnight, he reheated the stir fry and ate it as his main meal. Thereafter, Mr Mourilyan worked the remainder of the shift without incident. On Tuesday 10 August 2010, Mr Mourilyan got home after working night shift at approximately 6.15 or 6.20 am. He had a shower, ate some food and went to bed. Later that morning Mr Mourilyan woke up and was suffering from vomiting and diarrhoea, which continued for several hours.
[17] When Mrs Mourilyan returned home from her Parkinson’s support group meeting at around 1.00 pm, Mr Mourilyan was in the bathroom and called out to her that he was sick. Mrs Mourilyan confirmed that Mr Mourilyan complained of diarrhoea and vomiting, and asked Mrs Mourilyan to telephone his Shift Supervisor at James Hardie to advise that he would not be at work that night, so that coverage for his shift could be arranged. Mr Mourilyan said that he then went to bed, and remained there until the following morning, only getting up to sit on the toilet or to throw up. Mrs Mourilyan made the telephone call as requested.
[18] Under cross-examination, Mr Mourilyan said that he asked Mrs Mourilyan to call his supervisor because he was sick and denied that he did this so he would not be asked questions by his supervisor. In response to the proposition that he was well enough to talk to people, Mr Mourilyan said that he was well enough to talk to his wife.
[19] Mr Mourilyan’s next rostered shift was Sunday 15 August 2010, but he had previously arranged to take annual leave on that date. On Monday 16 August 2010, Mr Mourilyan started day shift at 6.00 am. At 6.30 am Mr Mourilyan’s team leader asked him to fill in forms in relation to this absence on 10 August 2010. Mr Mourilyan filled out a form requesting that 12 hours pay be deducted from his sick leave accrual, and another form stating that the reason for his absence was sickness due to food poisoning.
[20] Under cross-examination, Mr Mourilyan said that his wife’s condition was constantly changing and that a few weeks before 10 August 2010, he became aware that she would not require him to take time off to care for her. Mr Mourilyan also said there was no decision about this but they believed that for one night she would be alright by herself, and it happened that he was sick on that particular date and was home and available. Mr Mourilyan had no answer to the question as to why he did not cross the word “sickie” out when he became aware that his wife would not require him to take time off on the evening of 10 August 2010. 1
[21] Later under cross-examination, Mr Mourilyan said that he was required to care for his wife on the night of 10 August but it so happened that he was sick. Mr Mourilyan also said that it became apparent that he would be required on that night, a few weeks beforehand. Mr Mourilyan could not explain the different statements he made in this regard. 2
First Meeting 16 August 2010
[22] At 8.00 am on 16 August 2010, Mr Jones approached Mr Mourilyan and requested that he attend a meeting at 9.00 am. Mr Mourilyan attended that meeting. Present at the meeting were Ms O’Brien, Mr Hogan and Mr Jones. According to Mr Mourilyan’s version of the meeting, Mr Hogan raised a number of issues including:
• Poor performance of compressed finishing;
• Mr Mourilyan was the highest paid operator on site;
• Lack of value for the rate that was being paid to Mr Mourilyan as an operator maintainer;
• The place was a mess;
• Whether Mr Mourilyan was involving himself in maintenance.
[23] Mr Mourilyan responded to these issues by asking if they had been raised with other employees and questioning what he had failed to fix. Mr Mourilyan also pointed out that his role was to fix breakdowns as soon as possible and that if other work was required, he emailed team leaders to request that it be done. Mr Mourilyan also pointed out that he had fixed a breakdown that morning at the request of a supervisor, and that he was not clairvoyant and had not realised that there was a problem in that area until he was told about it.
[24] Mr Jones then passed a photocopy of Mr Mourilyan’s roster to him and asked: “What do you know about this. Is it yours”? Mr Mourilyan said that at first he said the roster was not his because he did not recognise it. Mr Mourilyan did not recognise the document because it was a photocopy and not his “dirty old roster”.
[25] The original version of Mr Mourilyan’s roster, bearing notations made by him was tendered. 3 That document was in Mr Mourilyan’s possession. The original roster document shows significant signs of wear and tear and is stained in a number of places. The word “sickie” is hand written underneath the block of days in which Tuesday 10 August appears. There is a question mark after the word “sickie”. There is a hand drawn circle around the “N” designating the night shift on Tuesday 10 August 2010. Within the circle there is also a mark on the column line between 9 and 10 August 2010. There is a hand drawn line from the word “sickie” to the circled date of 10 August 2010. The word “sickie” has been crossed out, and the word “sick” is hand written beside it.
[26] The photocopy of the document that was shown to Mr Mourilyan at the meeting on 16 August 2010 was also tendered. 4 The photocopy was also A3 size and according to Mr Mourilyan was folded in half when it was shown to him. That document shows the word “sickie” and the question mark in the same place as it appears on the original. The line runs from the question mark to the mark between on the column line between the dates of 9 and 10 August 2010. There does not appear to be a circle “N” designating the night shift of 10 August 2010. Mr Mourilyan, Ms O’Brien and Mr Hogan all referred to a circle being placed around the “N” designating the night shift on 10 August 2010. Strangely, there is no such circle on the photocopy of the document, but there is on the original. Mr Mourilyan did not give evidence about when he placed the various marks on the original of the roster, and what, if any, significance attached to the question mark beside the word “sickie” or the word “sickie” being crossed out and replaced with the word “sick”. Mr Mourilyan was not cross-examined about these matters.
[27] Mr Mourilyan said that he responded to being shown the copy of the roster, by asking where Mr Jones got the document from and whether someone was spying on him. In response to a question from Ms O’Brien about the meaning of the word “sickie” written on his roster, Mr Mourilyan said this was just circumstantial and declined to say anything more. The management representatives at the meeting asked Mr Mourilyan to wait and then left the room. Approximately 5 to 7 minutes later, Mr Jones came back and asked Mr Mourilyan whether he wanted a witness. Mr Mourilyan asked to have his Union representative present and said that it would take some time to contact him. Mr Mourilyan then stated that the meeting was closed until he could contact his Union representative, and returned to work.
[28] It was put to Mr Mourilyan in cross-examination that when shown the roster at the first meeting of 16 August 2010, he falsely denied that the document was his and that he did so because he saw the word “sickie”. Mr Mourilyan said that he did not recognise the document because it was folded in half and when he looked closely at it, he realised that it was a copy of his roster.
[29] Witness statements made by Ms O’Brien and Mr Hogan were essentially identical in relation to what was said at this meeting. Both Ms O’Brien and Mr Hogan said that during the meeting Mr Hogan asked Mr Mourilyan how much he got involved in maintenance duties and Mr Mourilyan responded by asking: “What do you want me to fix”. Mr Jones then showed Mr Mourilyan a copy of the roster he had found and asked Mr Mourilyan if he recognised the document. Mr Mourilyan said: “Never seen it before”. After viewing the document again, Mr Mourilyan said: “Now I am being spied on, it’s not very nice being spied on. This was in my bag where I keep it. Someone has taken it from my bag”. Mr Hogan told Mr Mourilyan that it was a copy of his roster with advance absences, handed in by two team members after being found on the on loader operator station just prior to 9 August.
[30] Mr Hogan put to Mr Mourilyan at the meeting that the copy of the roster clearly marked his intended absence on 10 August in advance of the “notated sickie” circled on the roster. It was then put to Mr Mourilyan that his wife had subsequently notified of his absence on that date. There was a further discussion where Mr Mourilyan continued to insist that he was being spied on.
[31] In response to questions about the day marked “sickie” and his wife ringing in for him to notify of his absence, Mr Mourilyan stated that he was ill and could not make it in. Ms O’Brien reminded Mr Mourilyan that it was his responsibility to ring in personally, unless he is completely incapacitated. Mr Mourilyan responded by saying that it is not very nice to have diarrhoea. There was a discussion about whether Mr Mourilyan’s level of overtime was impeding his ability to be present for all of his rostered shifts, and that this had previously been discussed with Mr Mourilyan.
[32] Mr Hogan also raised the issue that at times Mr Mourilyan withdrew from overtime shifts he had nominated himself for, at short notice. Mr Mourilyan said he believed that he was giving the right amount of notice. Mr Hogan put to Mr Mourilyan that given his circumstances, perhaps shift work was not for him. Mr Hogan also told Mr Mourilyan that a complaint had been made by another team member that he was not pulling his weight on shift. Mr Mourilyan was reminded that he was being paid at a higher rate than any other operator on site, and that as a tradesperson, a higher standard was expected of him. Mr Mourilyan made a comment about others and was reminded that the subject of the conversation was him. The meeting broke for the purpose of James Hardie representatives considering Mr Mourilyan’s responses, and to allow him an opportunity to contact his Union representative.
[33] Under cross-examination, Ms O’Brien said that she was not aware of whether the subject of the meeting was conveyed to Mr Mourilyan before he attended. Ms O’Brien also said that there was no record of the extra shifts that it was alleged Mr Mourilyan cancelled. Mr Hogan agreed under cross-examination that while the issues of Mr Mourilyan not pulling his weight and not attending for shifts was part of the overall decision to dismiss Mr Mourilyan, these matters were not put to Mr Mourilyan as being reasons for his dismissal.
Second Meeting 16 August 2010
[34] Mr Mourilyan said that a few hours after the first meeting on 16 August 2010 ended, Mr Jones came to where Mr Mourilyan was working and asked him to attend another meeting at 1.00 pm on that day. That meeting was again attended by Mr Jones, Mr Hogan and Ms O’Brien. According to Mr Mourilyan, he spoke first and informed the other attendees that he had not been able to contact his Union representative and that he just wanted to say that he had done a pretty silly thing, and should have put a leave form in for this date because he could not get his sister-in-law to help to care for his wife, and that is why he marked that date on his roster. The representatives from management of James Hardie then produced a letter informing Mr Mourilyan that he was stood down. Mr Mourilyan was also told that there would be a further meeting at 10.00 am the next day (17 August 2010) where he could have a witness and the purpose of the meeting would be to discuss dismissal, fraud and serious misconduct.
[35] Ms O’Brien and Mr Hogan said that before anyone spoke at the second meeting, Mr Mourilyan said that he had done something stupid and wasn’t really sick but had to look after his wife. Mr Mourilyan said that his sister in law, who generally looked after his wife, was not available on that night. Mr Mourilyan also said he should not have done what he did and should have put in for annual leave, but did not do so because he did not want to exhaust his annual leave.
[36] Ms O’Brien said that Mr Hogan advised Mr Mourilyan that based on what he had said, he had conducted himself in a fraudulent way and misled James Hardie, which amounted to serious misconduct. Mr Mourilyan was notified that he was being stood down on full pay until 9.00 am the next morning, when there would be a further meeting to consider a written statement by Mr Mourilyan as to why his employment would not be terminated. Mr Hogan said that he told Mr Mourilyan that he acted dishonestly and misled James Hardie, which amounted to serious misconduct.
[37] Under cross-examination, Ms O’Brien agreed that this was the only occasion upon which she asserted that Mr Mourilyan said that he was not sick on 10 August 2010, and that she had no way of knowing whether Mr Mourilyan was sick or not on that evening. In relation to the contention that Mr Mourilyan had admitted that he was not sick, the following exchange took place between Mr Hogan and Mr Broanda on behalf of Mr Mourilyan, in cross-examination:
“So the basis of your decision to dismiss Mr Mourilyan was - and I just deal with these one at a time - he made a notation of "sickie" on his roster?---Correct.
He took sick leave?---Correct.
He put in the return to work forms saying he was sick?---Correct.
You say on the meeting of the 16th he said that he wasn't really sick?---At one point in his statement he - if you look at the paragraph where we return to the meeting at 1 o'clock, where Ken returned to the room and said, "Listen, I've probably done a silly thing, you know, I probably shouldn't have taken that sick leave, I should've arranged to take alternate," that was fairly misleading and to me that indicated that he hadn't actually been sick.
Aside from that - sorry, just let me find that - that's paragraph - - -?---I think it's 17.
Paragraph 17, did he say he'd done something stupid or that he'd done something s.illy or something - - -?---Yes, he'd done a stupid thing.
He said that he'd done a stupid thing?---Mm.
You're certain of that?---Mm.
Is it possible that he'd said he'd done something silly?---It's possible. I do remember him saying, "I've probably done a stupid thing, I shouldn't have done that."
Mr Mourilyan says he never said that he hadn't been really sick. What do you say about that?---He followed that up at a later point with saying he had - he had developed diarrhoea.
Perhaps I'm oversimplifying it, but ultimately what I said earlier to you is true, isn't it? The reason for dismissal was that Mr Mourilyan called in sick, took a sick day on 10 August and ultimately James Hardie don't believe that he was sick on that day?---Well - - -
I understand you say that you've got reasons for it, but ultimately that's the shortened, condensed version, isn't it?---I believe that his reasons for taking the leave were misleading. He gave us the wrong reasons for leave initially.
You say that he wasn't sick?---Yes.”
[38] Mr Mourilyan maintained under cross-examination that he did not state that he was not really sick on the evening of 10 August 2010. Mr Mourilyan also maintained that he did not say that he had to stay at home to care for his wife. Mr Mourilyan said that he did not mention this because the reason he stayed home was that he was sick.
Meeting 17 August 2010
[39] Mr Mourilyan prepared a written statement in the following terms, which he read out at the meeting on 17 August:
“I took the night of August 10 sick leave as I was unwell with food poisoning. This is a coincidence that I had marked on my personal roster the date my sister-in-law, who normally cares for my wife, could not care for my wife, who had been ill in weeks previous, on that night. I had marked it on my roster to remind me that I needed to take that night off to care for my wife, also so I could inform my supervisor. I acknowledge that I failed to notify my supervisor, but this was an oversight not intentional. Why else would I mark my roster for anyone to see?” 5
[40] Mr Mourilyan also tendered a statement from Mrs Mourilyan in the following terms:
“In support of my husband Kenneth Mourilyan I would like to state:
I was diagnosed with Parkinson’s Disease and depression in 1997. Ken and I made the decision to undergo Deep Brain Stimulation in 2006. This is the operation where electrodes are implanted deep into the brain and are connected to neuro stimulators implanted deep into the chest by wires running under the skin. This surgery is not undertaken lightly. In 2007 I was diagnosed with uterine cancer Stage 4 and required a radical hysterectomy.
With Parkinson’s comes depression which I have been on medication for over the past 4 years. Normally when Ken is on night shift my sister cares for me if needed. I have not been well for some time, and my sister had let us know that she would be unable to care for me on Tuesday 10 August until Monday 16 August. Ken had planned to make arrangements to let work know that he would need the night off to take care of me during this time. I was not in a good way and our family had come down with diarrhoea Ken wasn’t able to go to work on that night anyway. I realised on Wednesday 11 August that I had not taken my medication and it was a public holiday. I phoned my GP on Thursday and went to the Chemists to get my medication. This can be verified by the Annerley Medical Practice.” 6
[41] Under cross-examination, Mr Mourilyan said that Mrs Mourilyan’s statement was not indicating that he was required to stay at home on 10 August 2010 to care for her, and that he had not planned this. Mr Mourilyan said that his wife’s statement was in relation to why he marked his roster.
[42] Mr Mourilyan said that his Union representative Mr Mills asked a number of questions including questions about his absenteeism record. Ms O’Brien said that it would take time to get that information, and that the stand down would continue until a further meeting scheduled for 18 August 2010. At that meeting Mr Mourilyan was dismissed without any further discussion about his absenteeism record. Mr Mourilyan maintained that he had not had a sick day for over ten months at the time of his dismissal, and his last payslip indicates a balance of 150 hours of sick leave.
[43] Mr Mourilyan maintained that he did not engage in fraudulent behaviour. It was admitted by Mr Mourilyan that he should have applied for a day off on 10 August 2010, as he knew that he would have to care for his wife on that evening. As it turned out, Mr Mourilyan was genuinely sick on that evening.
[44] Ms O’Brien and Mr Hogan said that Mr Mills stated that Mr Mourilyan’s wife was very ill and that his only oversight was in not notifying and placing an application for annual leave. Mr Mills said that most people don’t know the difference between sick leave, family leave and annual leave, and they just refer to it as “sickies”. Mr Mourilyan had just made a mistake and it was his entitlement to use his sick leave.
[45] Ms O’Brien and Mr Hogan said that Mr Mourilyan’s entitlement to sick leave was not being questioned, but rather his honesty in relation to his absence. The view was also stated that Mr Mourilyan intended to defraud the company with his dishonesty, and that this was why Mr Mourilyan was being asked to provide a good reason why his employment with James Hardie should not be terminated.
[46] According to Ms O’Brien and Mr Hogan, Mr Mills stated at this point that he did not know that termination of employment was being discussed and was told by Ms O’Brien that Mr Mourilyan was aware of this and that was why he had been given time to respond in writing and to have Mr Mills present. Mr Mills pointed out that the Company had the roster document prior to Mr Mourilyan’s absence and should have contacted him then to find out his intentions rather than taking a “wait and see” approach. Mr Mills also said that the Company should consider Mr Mourilyan’s attendance record over the 11 years he had been with the Company and his performance.
[47] Mr Mills said in his evidence to the Tribunal, that he found it strange that the Company knew of the roster document prior to Mr Mourilyan having the night off, and no-one approached him to ask what this was about. Mr Mills also said that he did not make reference to annual leave, as that form of leave is not included in personal leave, as is sick leave and carer’s leave. In relation to the comment that Mr Mourilyan made a mistake, Mr Mills said that he made this comment in the context of Mr Mourilyan using the term “sickie” instead of carer’s leave.
[48] Under cross-examination, Mr Mills said that he understood that Mr Mourilyan was required to stay at home to care for his wife, on the evening of 10 August. Mr Mills also said that it was his understanding that Mr Mourilyan was also ill on that evening so was home in any event.
[49] According to the evidence of Ms O’Brien and Mr Hogan, it was decided to take more time to consider the matters raised by Mr Mills at the meeting of 17 August 2010, and Mr Mourilyan’s written response. Mr Mourilyan was to remain stood down for a further period and the meeting was reconvened for 18 August 2010.
[50] Ms O’Brien and Mr Hogan said that the Company considered:
• The conduct Mr Mourilyan had engaged in;
• The varying explanations for his absence;
• His wife’s illness;
• His attendance record over the history of his employment;
• His work performance; and
• The financial impact of the termination of his employment.
[51] After considering all of these matters, it was decided to terminate Mr Mourilyan’s employment.
[52] Under cross-examination, Ms O’Brien and Mr Hogan agreed that they took notes of the meetings with Mr Mourilyan but did not have copies of those notes with them. Ms Hogan said that she prepared her notes straight after the meetings with Mr Mourilyan.
Meeting on 18 August 2010
[53] According to Ms O’Brien, on 18 August she met with Mr Mourilyan and Mr Mills, together with Mr Jones and Mr Hogan, and handed Mr Mourilyan a termination letter, in the following terms:
“Dear Ken
As per our conversations of Monday (16.8.2010) and Tuesday (17.8.2010) with yourself and Wayne we have taken time to consider your response to the allegation of fraudulent behaviour on your behalf in relation to an unplanned absence.
After taking into consideration all of the information to hand on this matter, including your responses in showing cause, we advise the business has decided to proceed with termination of your employment with James Hardie, effective immediately...”
Other Matters
[54] A blank copy of an employee leave form used by James Hardie for the purposes of employees taking various forms of leave, was appended to Mr Mourilyan’s witness statement. There is a reference on that form to sick leave but no reference to carer’s leave.
[55] Appended to Ms O’Brien’s statement was a previous leave application form where Mr Mourilyan had applied for carer’s leave. That form indicates that on 16 July 2010, Mr Mourilyan applied for a category of leave termed on the form as “special leave” for 31 July 2010. In the space on the form beside that category of leave, Mr Mourilyan wrote “carer’s leave”. In response to a question about the special leave being applied for, Mr Mourilyan wrote: “Personal & carer’s leave. Needed to care for wife due to her being a designated invalid with Parkinson’s disease.”
[56] In re-examination Mr Mourilyan said that he later amended this application for carer’s leave to an application for annual leave, so that he would be eligible for a bonus offered by James Hardie to employees who did not take sick leave.
[57] Ms O’Brien said under cross-examination that employees could choose to take leave from their pool of sick leave or annual leave and if Mr Mourilyan felt that he did not have enough sick leave he could choose to use annual leave. Mrs O’Brien also agreed that employees could change one type of leave to another. Further, Ms O’Brien agreed that there is a bonus system in place for employees who do not take sick leave.
[58] In cross-examination Mr Mourilyan was asked what his understanding of the term “sickie” was. Mr Mourilyan said that he had been in the workforce for 40 years and sick leave was only ever referred to as such. Recently Mr Mourilyan was aware that it included carer’s leave, personal leave and compassionate leave. Mr Mourilyan maintained that there was no difference between the terms sick leave and “sickie”, but agreed he had heard of someone taking a “sickie” when they are not really sick. Mr Mourilyan agreed that at the time in July when he completed the forms, he did understand the difference between sick leave for illness and injury and carer’s leave when someone else in his family or household was ill.
[59] In response to the proposition that he sat in a meeting on 17 August 2010 and let Mr Mills state that he did not understand this distinction, and misled James Hardie, Mr Mourilyan said that he was quiet at the meeting and let Mr Mills speak because he was under stress and felt intimidated.
[60] Mr Mourilyan said that his dismissal has caused him, his wife and his family great distress. He is presently not receiving an income from any source, and is drawing on life time savings to service the mortgage on the family home. Mr Mourilyan has applied unsuccessfully for a number of positions. Mrs Mourilyan is unable to work and has been deeply distressed by the dismissal, requiring an increase in her depression medication to help her to cope with the consequences of Mr Mourilyan’s dismissal.
SUBMISSIONS
Submissions for Mr Mourilyan
[61] It was submitted on behalf of Mr Mourilyan that James Hardie alleged that Mr Mourilyan had engaged in fraud, and FWA was required to consider whether the conduct complained of occurred. If Mr Mourilyan committed fraud, this would amount to criminal conduct, and as such the rule in Briginshaw v Briginshaw 7applies so that the burden to be satisfied by James Hardie is elevated from “balance of probabilities” to “beyond reasonable doubt”. Fraud as defined in s.408C of the Criminal Code 1899 (Qld) requires that a person dishonestly gains a benefit or advantage pecuniary or otherwise for any person, or causes a detriment, pecuniary or otherwise, to any person.
[62] Fraud requires deceit or trickery to gain an unfair or dishonest advantage. At law, fraud is constituted by an advantage gained by unfair means, as by a false representation of fact made knowingly, or without belief in its truth, or recklessly, not knowing whether it is true or false. 8
[63] It was submitted that in the present case, Mr Mourilyan gained no advantage of any sort. Rather he accessed a workplace entitlement to sick leave on account of a genuine illness. Alternatively, Mr Mourilyan did intend to access carer’s leave for genuine purposes, but did not do so due to the situation that developed. Mr Mourilyan has not sought to, nor acted, unfairly or deceitfully. The worst that can be said of Mr Mourilyan’s actions is that he neglected to apply in advance for a day off. This does not amount to fraud.
[64] Mr Mourilyan readily concedes that he made a notation on his roster to remind himself to take the night off on 10 August 2010, and that he forgot to advise his employer in advance of this day that he would not be at work. Mr Mourilyan was genuinely sick on 10 August 2010 and was unfit to present for work. His lack of industrial knowledge regarding the technical difference between “sick leave”, “carer’s leave” or “personal leave”, was added to by James Hardie treating all such leave as sick leave.
[65] Mr Mourilyan denies engaging in the conduct alleged - fraud - and stands by that assertion. In the event that FWA finds inappropriate conduct on his part, it is contended that dismissal is nonetheless harsh in all of the circumstances, as it is disproportionate to the gravity of the conduct. Mr Mourilyan has no history of taking “sickies” and at the time of his dismissal, had 150 hours of accrued sick leave.
[66] Mr Mourilyan has been employed by James Hardie for 11 years and has no previous warnings in relation to his conduct or work performance. He is 61 years old and has limited employment prospects. Following his dismissal, Mr Mourilyan has been unable to source income and has depleted his retirement savings to pay living expenses. The dismissal has caused significant financial hardship to Mr Mourilyan and his family, particularly to his wife who suffers from a variety of medical conditions.
[67] Mr Mourilyan does not press considerations in s.387(b) - (g) of the Act, but relies on the contention that there was no valid reason for his dismissal.
[68] It was submitted that the entire case against Mr Mourilyan rests on the word “sickie” appearing on the roster and an alleged concession that Mr Mourilyan made at a meeting on 16 August. Mr Mourilyan had explained the first matter and had never denied the purpose of making the notation on his roster. Mr Mourilyan also denied that he made the alleged concession, and in this regard, the almost identical statements of Ms O’Brien and Mr Hogan should be given limited weight. The real essence of the case was whether Mr Mourilyan was actually sick on 10 August, and the evidence that this was the case is not able to be refuted, and should be accepted.
Submissions for James Hardie
[69] It was submitted on behalf of James Hardie that it was uncontested that Mr Mourilyan:
• planned in advance to be absent from work on 10 August 2010;
• recorded the intention on his roster by writing “sickie” on it in relation to, and in advance of, that day;
• did not apply in advance of that day for any type of approved, paid leave;
• did not notify his employer in advance of that day that he intended to be absent from work;
• at a time before that date two other employees of James Hardie found the roster marked “sickie”; and
• several hours prior to the time Mr Mourilyan was to commence his night shift, his wife, at his request, contacted his supervisor and told the supervisor that he was sick.
[70] It is contended that Mr Mourilyan offered a series of false explanations for his absence from work on 10 August 2010, thereby engaging in fraud, constituting serious misconduct. It is further contended that the misconduct was so serious that it outweighs the combined mitigating effects of his wife’s illness; his attendance record over the history of his employment; his performance at his job; and the financial impact of the termination of his employment.
[71] Facts in dispute were said to be whether Mr Mourilyan:
• was aware that “carer’s leave” was the appropriate type of leave to apply for in relation to a requirement to care for a sick member of his family;
• planned in advance to be absent from work on 10 August 2010;
• planned in advance to be absent because his wife required care, and her sister, her usual carer when Mr Mourilyan worked night shift, had previously advised that she would be unavailable on that particular night; and
• had a sick leave record that showed an unusual amount of sick or carer’s leave taken.
[72] It was submitted that Mr Mourilyan’s statement that he did not understand that carer’s leave was the appropriate entitlement to apply for was untrue, given evidence that he had previously applied for four hours of carer’s leave in order to care for his wife. Further, Mr Mourilyan’s failure on his return to work to state that not only was he sick from food poisoning but was also required to stay home to care for his wife, was said to be inconsistent with a pre-planned but forgetfully un-notified absence for carer’s leave.
[73] In this regard, Mr Mourilyan completed forms indicating that he was ill from food poisoning, but omitting any reference to a need to stay at home to care for his wife. Mr Mourilyan again failed to mention this when interviewed by Ms O’Brien, Mr Hogan and Mr Jones at 9.00 am on 16 August 2010. It was further submitted that any ambiguity about the deception Mr Mourilyan engaged in was eliminated by his admission to Ms O’Brien, Mr Hogan and Mr Jones at the meeting on 16 August at 1.00 pm. This admission was said to have demonstrated that Mr Mourilyan’s actions had involved deception of James Hardie; had caused his wife to make an untrue statement; and had involved him making untrue statements on the forms submitted to James Hardie and at meetings. It was also submitted that Mr Mourilyan had attempted to falsely deny ownership of the marked roster.
[74] Mr Mourilyan had resurrected the story that he was sick on 10 August 2010, when Mr Mills became involved in representing him and this did not defeat his earlier admission that he was not sick, and adds a further item to the list of deceptive conduct Mr Mourilyan engaged in. It is not alleged on behalf of James Hardie that Mr Mills was aware that Mr Mourilyan’s assertion about being ill was false.
[75] It was also contended for James Hardie that neither Mr Mourilyan, nor any witnesses who gave evidence on his behalf, could offer any explanation as to why Billy Mourilyan could not look after his mother on the evening of 10 August as he sometimes did during the day. Further, it was contended that the evidence does not clearly establish that Ms Farmer was not available on that evening, or that Mr and Mrs Mourilyan had advance notice of this fact. In relation to the submission that Mr Mourilyan did not have a record of taking sick leave, it was submitted that the 150 hour balance referred to by Mr Mourilyan was little more than 20% of the total sick leave he had accrued over 11 years, indicating that he has taken almost 80% of his accrued personal/carer’s leave during that time.
[76] The principle expressed in Briginshaw does apply to proceedings in Fair Work Australia for unfair dismissal where an employee has been summarily dismissed for serious misconduct, but does not require the Tribunal to be persuaded beyond reasonable doubt. Fraud should be given its common, ordinary and natural meaning as understood in everyday language. Central to all definitions of fraud are the concepts of deceit and trickery, and there is no requirement to establish that Mr Mourilyan gained some advantage, or did so unfairly. The essential element of fraud in all its connotations, is dishonesty. In the context of Regulation 1.07 of the Fair Work Regulations 2009, a person engages in fraud if the person makes, or is knowingly involved in the making of, a statement or representation which is untrue or misleading, and that person either:
• knows that the statement is untrue or misleading;
• does not believe the statement or representation to be true; or
• neither knows nor cares whether the statement is true.
[77] It is contended for James Hardie that Mr Mourilyan was fraudulent in the following ways:
• On 10 August causing his wife to telephone James Hardie to advise that he was sick, when he knew that this was not the case;
• On 16 August submitting to James Hardie a leave application form claiming sick leave and a return to work form on which he represented that he had been sick from food poisoning and experienced an unplanned absence from work;
• On 16 August initially telling James Hardie that he was absent from work on 10 August because he had diarrhoea when he did not have it and was not ill;
• Later on 16 August telling James Hardie that he was sick on 10 August but was required to stay home to care for his wife and that he had known about this requirement but forgot to notify of his absence in advance;
• On 17 August through his representative Mr Mills, maintaining an account that he was aware was false and falsely asserting that he was unaware of the fact that he could have applied for carer’s leave.
[78] These matters were said to constitute fraud and a valid reason for summarily dismissing Mr Mourilyan. The fraud is said to be established by the admission at the second meeting that Mr Mourilyan was not sick, supported by the fact that the word “sickie” was notated on Mr Mourilyan’s roster, and his initial denial of the ownership of that roster, (a denial later admitted to be false). The three different and conflicting explanations for the absence were also said to evidence fraud on the part of Mr Mourilyan.
[79] If the Tribunal did not accept that the essential element of fraud is dishonesty, and required some gain on the part of Mr Mourilyan, this was submitted to be an advantage because Mr Mourilyan did not have to reduce his annual leave balance, despite having a planned absence from work. It was submitted that James Hardie had considered the varying explanations for Mr Mourilyan’s absence; his wife’s illness; his attendance record; his work performance and the financial impact of the dismissal.
[80] The issue for which Mr Mourilyan was dismissed was misleading the Company. Even if the Tribunal found that Mr Mourilyan was not dishonest - and this was not conceded - it should be found that at very least, he was vague, prevaricated and caused uncertainty, contributing to the impression gained by the Company that he was dishonest. There had been a breakdown of the employment relationship, and Mr Mourilyan had demonstrated that his word could not be relied on, and the Company had lost trust and confidence in Mr Mourilyan.
LEGISLATION
[81] The issue in dispute is whether Mr Mourilyan has been unfairly dismissed. By virtue of s.385 of the Act, a person has been unfairly dismissed if FWA is satisfied that:
(a) The person has been dismissed;
(b) The dismissal was harsh, unjust or unreasonable;
(c) The dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) The dismissal was not a case of genuine redundancy.
[82] The Small Business Fair Dismissal Code and the issue of genuine redundancy, were not relevant in this case.
[83] A dismissal may be:
• | harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct; |
• | unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or |
• | unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer." 9 |
[84] The criteria that FWA must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, are set out in s.387 in the following terms:
(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 the dismissal; and
(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.
[85] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 10 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts11, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.12
[86] In circumstances where the reason for a dismissal is serious misconduct said to amount to fraud, it is critical that an assessment be made as to whether, on the balance of probabilities, the employee did actually engage in serious misconduct. It is not the case that where fraud is alleged, that the standard of proof to be applied shifts, so that the question of whether the employee did engage in fraud is determined on the basis that it must be established beyond reasonable doubt. As a Full Bench of the Australian Industrial Relations Commission noted in Brinks Australia Pty Ltd v Transport Workers’ Union of Australia:
“It seems to us beyond doubt that the standard of proof to be applied in Commission proceedings is proof on the balance of probabilities. While it is true that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, the standard of proof never changes.” 13
[87] The Full Bench also cited the judgment of the majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others 14 to the effect that a finding should not lightly be made that, on the balance of probabilities, a party in civil proceedings has engaged in fraudulent or criminal conduct, on the basis that there is a conventional perception that members of our society do not ordinarily engage in such conduct.15 However, the need for clear or cogent proof in order for such a finding to be made, does not alter the standard of proof in civil proceedings, to that required in criminal proceedings.
[88] Whether the dictionary definition of fraud or that found in criminal law is applied, the fact remains that the dismissal of an employee on a ground such as fraud, can have a potentially far reaching and catastrophic effect on the employee’s future employment prospects, given the connotations of criminal activity associated with such an epithet. An allegation of fraud should not be lightly levelled and conduct of an employee should not be labelled as fraud without clear and cogent proof.
[89] The nature of serious misconduct is highlighted by Regulation 1.07 Fair Work Regulations2009, which underpins the term serious misconduct for the purposes of the Act:
1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.
[90] Misconduct is wrongful conduct. To be properly described as “serious”, misconduct must be: “significantly worse than negligence and serious in its culpable quality as misconduct, as distinct from the results”. 16 Serious misconduct is judged on an objective basis, and it is therefore not necessary that the employee should intend to do wrong. If the employee knows of a specific relevant risk there may be misconduct depending on its seriousness. If the employee does not know of a specific relevant risk, then the negative element of misconduct requires a disregard or recklessness of possible risk.17 Wilful misconduct carries the additional connotation of intention, or a deliberately reckless course of misconduct, with knowledge that it is wrong.18
[91] Regulation 1.07 does not require that misconduct be wilful before it is serious misconduct, but provides that serious misconduct includes wilful or deliberate behaviour. However, in my view, for a dismissal on the ground of fraud to be fair, requires that the employee is dishonest with the intention of gaining a benefit to which he or she is not entitled, to the detriment of the employer.
CONCLUSIONS
Was there a valid reason for Mr Mourilyan’s dismissal?
[92] I am unable to accept that there was a valid reason for Mr Mourilyan’s dismissal. In reaching this conclusion I am not satisfied that on the balance of probabilities Mr Mourilyan engaged in serious misconduct amounting to fraud. I am also unable to accept that on 18 August 2010, there were reasonable grounds for James Hardie to conclude that this was the case.
[93] The evidence considered by the representatives of the Company is not sufficient to establish serious misconduct amounting to fraud. It was not in dispute that Mr Mourilyan’s wife suffers from a number of serious and chronic medical conditions that would have entitled Mr Mourilyan to take carer’s leave, in the event that she required care. The provisions of the relevant industrial instrument from which any entitlement of Mr Mourilyan to carer’s leave would have been derived, was not in evidence. Generally, a right to carer’s leave is triggered when a family member is ill and requires care. It is not determinative of a right to carer’s leave that care could have been provided by someone other than the worker who claims carer’s leave.
[94] In the present case, it is irrelevant to any consideration of Mr Mourilyan’s unfair dismissal claim or the question of whether Mr Mourilyan genuinely needed to provide care to his wife on 10 August, that Billy Mourilyan believed that he could have provided that care and was not asked to do so. In my view it is entirely understandable that a woman suffering from Parkinson’s Disease, who requires assistance at night to use the toilet, would prefer to get that assistance from her husband rather than her 25 year old son, in circumstances where her sister in law who usually provided that assistance was not available.
[95] It was not contended that the various Managers of James Hardie who were involved in making the decision to dismiss Mr Mourilyan, were not aware that his wife suffered from these conditions. The application for special leave completed by Mr Mourilyan on 16 July 2010 demonstrates that Mr Mourilyan previously applied for carer’s leave. It also demonstrates that he gave as a reason for requiring such leave, that his wife suffers from Parkinson’s disease. It is also the case that at the first meeting of 16 August, Mr Hogan raised with Mr Mourilyan the question of whether, given his circumstances, shift work was for him.
[96] In my view, at the point Mr Mourilyan’s roster was found, management of James Hardie knew, or should reasonably have known that his personal circumstances included the fact that his wife suffers from at least one serious and chronic medical condition. Consideration should have been given to that matter, before the view was formed that Mr Mourilyan was intending to take a sick day that he was not entitled to take, and to thereby engage in fraud.
[97] In circumstances where the condition of Mr Mourilyan’s wife fluctuated, and he knew that his sister-in-law could not provide care for her on 10 August, there is a reasonable explanation for him circling a date on his roster and writing the word “sickie” followed by a question mark. While I accept that the term “sickie” has connotations of an employee claiming a sick day in circumstances where he or she is not sick, it is also the case that a claim for carer’s leave involves the use of sick leave, in circumstances where the employee making the claim is not sick. I also accept that forms of leave are somewhat blurred at James Hardie, given the practice of allowing employees to swap sick leave for annual leave, after they have taken that leave as sick leave.
[98] Quite simply, the notation on the roster did not provide sufficient grounds for management of James Hardie to form the view that Mr Mourilyan intended to take a sick day to which he was not entitled. Clearly this is the view that was formed by Mr Jones and/or Mr Hogan, given that the roster was taken from the place it was found; photocopied and returned; and the matter was not raised with Mr Mourilyan until after the date in question, when he was confronted with allegations of fraud.
[99] I am also of the view that it was not reasonable for Ms O’Brien and Mr Hogan to form the view at the first meeting of 16 August 2010, that Mr Mourilyan was dishonest on the basis that he denied that the document that they showed him was his roster. The document that was shown to Mr Mourilyan at that meeting was a photocopy, and it is not disputed that when it was handed to Mr Mourilyan at the meeting, it was folded in half. The original of that document is, as Mr Mourilyan said in his evidence, a “dirty old roster”. It is torn, covered in stains and contains many notations written in a variety of coloured pens. It is understandable that Mr Mourilyan would not have immediately identified the photocopy that was shown to him at that meeting and his explanation about this matter is reasonable. After looking in more detail at the document, Mr Mourilyan agreed that it was his. It is also understandable that Mr Mourilyan would question how the document came to be in the possession of managers given that he kept it in his bag.
[100] I do not accept that Mr Mourilyan’s wife telephoning on his behalf to advise of his absence, is indicative that he was not really ill on 10 August 2010. The policy of James Hardie with respect to notification of intended absences was not in evidence. It is a reasonable explanation that if Mr Mourilyan was suffering from vomiting and diarrhoea, he would ask his wife to make a telephone call on his behalf to notify of his intention to be absent from work.
[101] I do not accept that at the second meeting on 16 August 2010, Mr Mourilyan conceded that he was not genuinely ill on 10 August 2010. After considering the evidence of Mr Hogan and Ms O’Brien, I am of the view that they inferred that this was the case from Mr Mourilyan’s comment that he had done a stupid (or silly thing) rather than from any admission by Mr Mourilyan that he had not really been ill. It is at least equally probable that Mr Mourilyan was explaining the notation of “sickie” on the roster when he said he had done a silly thing, rather than conceding that he was not really sick on 10 August 2010.
[102] Mr Mourilyan’s comments at this meeting are consistent with him making a notation of his roster prior to 10 August 2010 that he would have to consider accessing his sick leave for the purpose of caring for his wife; failing to make a formal application for carer’s leave; and falling ill on the night in question, obviating the need to take carer’s leave to care for his wife.
[103] Any inconsistencies in what Mr Mourilyan told Ms O’Brien and Mr Hogan, are understandable when it is considered that Mr Mourilyan had no warning that serious allegations were about to be levelled at him; a document which he believed had been in his bag was shown to him causing him to wonder how it came into the hands of Mr Hogan and Ms O’Brien; and he was alone at a meeting with three managers who were accusing him of dishonesty and fraud.
[104] I accept that there is a degree of coincidence involved in the scenario put forward by Mr Mourilyan at the meetings on 16 August to explain his absence from work. However, that explanation was no so improbable that it could reasonably have been concluded that Mr Mourilyan had engaged in fraud.
[105] There was a dedicated Human Resources Manager in all meetings at which the allegations were put to Mr Mourilyan. On any reasonable view, it was at least equally probable that Mr Mourilyan was suffering from vomiting and diarrhoea, in consequence of eating a meal that also made his wife and son ill, as it was that he took sick leave in circumstances where he was not really sick. In those circumstances it cannot be said that there is clear and cogent proof of fraud to justify a finding on the balance of probabilities to support this being a valid reason for the dismissal.
[106] In circumstances where Mr Mourilyan had 11 years of service; an otherwise unblemished record; and his wife was known by James Hardie’s managers to have a serious medical condition; he should have been given the benefit of the doubt. Instead, Mr Hogan and Ms O’Brien leaped to the conclusion that Mr Mourilyan had claimed a sick day in circumstances where he was not sick and in so doing had engaged in fraud.
[107] There were some inconsistencies in the evidence that Mr Mourilyan gave to the Tribunal. On the other hand, the evidence of Ms O’Brien and Mr Hogan was too consistent, in that other than a few words, their accounts were identical. Further, there were no contemporaneous notes produced of the two meetings where Mr Mourilyan was unrepresented, in circumstances where there were three management representatives present. If Mr Mourilyan made a concession that he had engaged in misconduct that Ms O’Brien and Mr Hogan believed amounted to fraud, in circumstances where he was not represented at the meeting where the concession was allegedly made, it is surprising that contemporaneous notes were not taken and that Mr Mourilyan was not asked to sign such notes to verify their accuracy.
[108] On balance, there was insufficient evidence upon which a finding could be made that Mr Mourilyan engaged in misconduct amounting to fraud, as alleged by James Hardie. At worst, Mr Mourilyan was careless and disorganised in ensuring that he applied for time off to care for his wife, and failed to make a leave application when he concluded that this would be required, at some stage prior to 10 August 2010. When events overtook him and he became ill on that date, the need for such an application was obviated. There is nothing irregular about the fact that Mrs Mourilyan made the telephone call to advise James Hardie that Mr Mourilyan was ill. Further, there is no basis for finding that Mr Mourilyan was not genuinely ill on that date as a result of consuming food cooked by his wife. Accordingly there was no valid reason for the dismissal.
Was Mr Mourilyan advised of the reason for the dismissal?
[109] It is not in dispute that Mr Mourilyan was advised of the reason for the dismissal.
Was Mr Mourilyan given an opportunity given to respond to any reason related to the capacity or conduct of the person?
[110] It was not pressed on behalf of Mr Mourilyan that he was not given a reasonable opportunity to respond to the reason related to his capacity or conduct.
Was there an unreasonable refusal by the employer to allow a support person to be present to assist at any discussions relating to the dismissal?
[111] This matter was also not pressed on behalf of Mr Mourilyan. While there was no unreasonable refusal by James Hardie to allow a support person to be present, there were two meetings held with Mr Mourilyan, in circumstances where a view had already been formed that he had engaged in serious misconduct amounting to fraud, without him having a support person. At both meetings, Mr Mourilyan was confronted by three managers in circumstances where he did not have a representative.
[112] It is also the case that Mr Mourilyan was not told that such serious allegations were to be put to him when he was asked to attend the meeting, and was put in the position of having to request a support person after those allegations had been put to him and he had already given a response, that was later relied on to justify his dismissal.
Was any warning given about unsatisfactory performance before the dismissal?
[113] This is another matter that was not pressed on behalf of Mr Mourilyan. However it is one that I am required to consider, and it is in my view relevant that a number of other performance related issues were raised with Mr Mourilyan, which formed part of the overall decision to dismiss him. It is also relevant that there was no evidence that Mr Mourilyan had been warned about any of these matters prior to his dismissal.
The impact of the size of the employer’s enterprise on the procedures followed in effecting the dismissal?
[114] There is no evidence of the relevance of this factor.
Impact of 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?
[115] There was no absence of dedicated human resource management specialists. To the contrary, James Hardie has such specialists and at least one was involved in the decision to dismiss Mr Mourilyan.
Any other relevant matters?
[116] There are in my view, a number of other matters relevant to the determination of whether Mr Mourilyan’s dismissal was harsh, unjust or unreasonable. Mr Mourilyan had 11 years service with James Hardie. There was no evidence of any previous issue being formally raised in relation to his conduct, capacity or work performance. There was evidence of some discussions with Mr Mourilyan about “pulling his weight” but it is not apparent that these had reached the stage of being raised in a disciplinary sense.
[117] Mr Mourilyan is 61 years of age, and responsible for the support of his wife, who suffers from serious and chronic illnesses. He has not gained alternative employment. Given Mr Mourilyan’s age; the circumstances of his dismissal; and his personal circumstances, it is not likely that he will do so in the foreseeable future.
Was Mr Mourilyan’s dismissal harsh, unjust or unreasonable?
[118] After weighing up the relevant criteria, I have concluded that Mr Mourilyan was unfairly dismissed. Mr Mourilyan’s dismissal was harsh, because of its personal and economic consequences. Mr Mourilyan was accused of fraud, and this was recorded in his termination letter. This not only caused distress for Mr Mourilyan but for his family. In particular, the dismissal caused distress to Mr Mourilyan’s wife who suffers from a number of serious medical conditions. Mr Mourilyan has been unable to obtain alternative work, and has suffered economic loss requiring him to access his savings in order to maintain himself and his dependent wife. Mr Mourilyan is 61 years of age, and it cannot be doubted that he will face significant difficulty obtaining other employment.
[119] Mr Mourilyan’s dismissal was unjust because he was not guilty of serious misconduct amounting to fraud, as alleged by James Hardie. The dismissal was also unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before James Hardie. There was quite simply no basis for Ms O’Brien and Mr Hogan to conclude that Mr Mourilyan had engaged in fraud and to dismiss him on that ground.
REMEDY
Legislation
[120] Having found that Mr Mourilyan was unfairly dismissed, the question of remedy must be considered. Mr Mourilyan seeks reinstatement. That is the primary remedy under the Act in circumstances where a person has been unfairly dismissed, as is evident from the requirement that compensation can only be ordered where FWA is satisfied that reinstatement is not appropriate. Relevant legislative provisions are as follows:
390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
Is reinstatement appropriate?
[121] It was submitted for Mr Mourilyan that the appropriate remedy is reinstatement. For James Hardie it was submitted that there had been a breakdown of the employment relationship. It was also submitted for James Hardie that whether or not Mr Mourilyan’s conduct was dishonest or simply vague, his behaviour and manner of speaking identify him as a person whose word cannot be relied on. For this reason he should not be reinstated. Further, it was submitted that Mr Mourilyan’s manner of giving evidence also made it apparent that he is unreliable. For these reasons, there is a loss of trust and confidence on the part of James Hardie, and the Company can no longer rely on what Mr Mourilyan says.
[122] I do not accept the submissions of James Hardie in regard to this matter. It has been pointed out that the employment relationship must be capable of withstanding stresses and strains. 19 As the Industrial Court pointed out in Perkins v Grace Worldwide (Aust) Pty Ltd20the question of whether there has been a loss of trust and confidence is relevant to determining whether reinstatement is impracticable. However, there is an important proviso, that the loss of trust and confidence be soundly and rationally based.21 It is not sufficient for an employer to defeat an order of reinstatement, to simply assert loss of trust and confidence, in circumstances where there has been a finding that the allegations of serious misconduct said to have caused that loss of trust and confidence, are found not to have been made out.
[123] In the present case, there is no basis for a loss of trust and confidence, in circumstances where objectively, Mr Mourilyan is not guilty of the misconduct alleged against him. For the reasons set out above, I have decided to order the reinstatement of Mr Mourilyan to the position he was employed in immediately before the dismissal. I have also decided that it is appropriate to make an order to maintain the continuity of Mr Mourilyan’s employment and the period of his continuous service with James Hardie. Further, I have decided that this is an appropriate case to make an order that James Hardie pay the amount of remuneration lost, or likely to have been lost, by Mr Mourilyan because of the dismissal.
[124] In determining the amount to be paid by James Hardie for the purposes of this order, I have considered that Mr Mourilyan has earned no remuneration from any source, during the period between the dismissal and the making of the order I intend to make for reinstatement. Mr Mourilyan is unlikely to earn remuneration in the period between the making of the order and reinstatement. Accordingly, I consider that it is appropriate that Mr Mourilyan be paid his wages and superannuation for the period between his dismissal and actual reinstatement. Mr Mourilyan was paid four weeks notice on termination of his employment, and that amount should be deducted from the amount to be paid to Mr Mourilyan pursuant to the order that he be reinstated.
[125] I have also decided that an order should be made pursuant to s.391(2) that the continuity of Mr Mourilyan’s employment and the period of continuous service should be maintained. There was a submission that Mr Mourilyan would have been entitled to a bonus for not taking sick leave had he not been dismissed and that any order for reinstatement should include an order for the payment of this bonus. I am unable to accept that submission. The bonus is a contingent amount. Further, there is no evidence about the precise quantum of that bonus and the basis upon which it might have been paid. In those circumstances I do not intend to make an order in relation to the bonus.
[126] An order will be issued giving effect to this decision.
COMMISSIONER
Appearances:
Mr D. Broanda of the Australian Workers Union of Employees, Queensland on behalf of the Applicant.
Mr M. Swan of the Australian Industry Group and Mr B. Farley on behalf of the Respondent.
Hearing details:
2010.
Brisbane:
October 14.
1 Transcript 14 October 2010 PN382 - 392.
2 Transcript 14 October 2010 PN423 - 426.
3 Exhibit 3.
4 Exhibit 4.
5 Exhibit 8 Statement of Debi O’Brien Annexure “DOB2”
6 Ibid “DOB2”
7 (1938) 60 CLR 336.
8 Macquarie Dictionary.
9 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) per Ross VP citing the judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (1995) 185 CLR 410 at 465-468.
10 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
11 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
12 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
13 PR922612 per Giudice J, Acton SDP and Hingley C at [7].
14 (1992) 110 ALR 449
15 Ibid at 449-450.
16 Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 42 per Derrington J.
17 Ibid at 41.
18 Ibid at 42.
19 Regional Express Holdings Ltd T/A REX Airlines [2010] FWA 4230 at 189.
20 (1997) 72 IR 186.
21 Ibid at 191.
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