Mr Martin Green v MSS Security Pty Ltd
[2010] FWA 1822
•14 DECEMBER 2010
[2010] FWA 1822 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Martin Green
v
MSS Security Pty Ltd
(U2009/11754)
COMMISSIONER SPENCER | BRISBANE, 14 DECEMBER 2010 |
Termination of employment - arbitration - whether valid reason.
Introduction
[1] This determination concerns the application made by Mr Martin Green (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), in which he claims his dismissal from MSS Security Pty Ltd (the Respondent) was harsh, unjust and unreasonable. He sought reinstatement as the appropriate remedy.
[2] The application proceeded to conciliation but was unable to be resolved. The matter was then listed for arbitration and Directions were set for the filing of submissions and evidence.
[3] The Applicant was represented by Mr Robert Reed, Counsel, instructed by the Liquor, Hospitality and Miscellaneous Union (the LHMU). The Respondent was represented by Mr Daniel Pratt, Counsel, instructed by Mr Chris Muir of Employer Services Pty Ltd.
[4] All of the submissions and evidence have not been referred to in this decision; however, all of such have been considered in making this determination.
Background
[5] The Applicant was employed as an Access Control Officer by the Respondent and its predecessors for approximately 21 years, in the same position, on the Amberley RAAF Base (the Base). He was employed by the Australian Public Service prior to the position being contracted out to the Respondent. The Applicant was an LHMU delegate for approximately 10 years, until the termination of his employment.
[6] The termination of the Applicant’s employment occurred after he made a remark of a sexual nature to his supervisor, Ms Caroline Graham. The Applicant claimed that the summary termination of his employment was disproportionate to the incident and that the remark, in its context, was not a ground for gross misconduct and thus the termination was unfair. The Respondent claimed that the dismissal was consistent with the implementation of its discrimination and sexual harassment policy (Maintaining a Respectful Workplace), of which the Applicant was aware.
[7] The termination letter 1 signed by Mr Doug Lansley, Defence Account Manager, referred to the Applicant’s inappropriate question of a sexual nature, directed at another employee. The correspondence indicated that the circumstances and Applicant’s explanation for the remark had been considered, however the company concluded that the actions constituted serious misconduct and therefore the Applicant’s employment was terminated effective immediately.
Legislation
[8] The unfair dismissal application was made pursuant to s.394 of the Act. It is set out, relevantly, as follows:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
...
[9] In determining whether a dismissal was harsh, unjust or unreasonable (and therefore unfair), FWA is required to consider certain matters set out in s.387 of the Act, as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
[10] Relevant to this matter is the meaning of serious misconduct, pursuant to Regulation 1.07 of the Fair Work Regulations 2009 (Cth) (the Regulations):
1.07 Meaning of serious misconduct
(1) For the definition of serious misconductin 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.
...
(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.
...
Evidence
[11] The Applicant provided a witness statement and a supplementary statement and underwent cross-examination. Evidence for the Applicant also consisted of a statement and supplementary statement provided by Ms Rosa Micallef (Security Officer), and a statement from Mr David Malley (Members Assist Supervisor, LHMU). Both these witnesses were also cross-examined.
[12] The Respondent’s witnesses included Ms Caroline Graham (former supervisor with the Respondent), Ms Vanita Tarhanoff (Security Officer with the Respondent), Mr Warren Townsend (Supervisor for the Respondent), Mr Douglas Lansley (Defence Account Manager), and Ms Margaret Stinson (Human Resources Manager) who each provided an Affidavit and were cross-examined by Mr Reed.
The incident
[13] The Applicant stated that he was a diligent and loyal employee who had no disciplinary record and no history of warnings or counsellings in respect of performance issues. 2 It was submitted that the Applicant’s role held a high level of responsibility in that Access Control Officers ensure that only authorised persons enter the Base, at permitted times; and that to alleviate this high pressure, employees generally, and the Applicant particularly, engaged in joking behaviour.3 Ms Micallef supported this assertion, that is, that joking was part of the workplace culture.4
[14] The Applicant stated that he had an odd sense of humour, and provided some examples of his alleged jokes, which were in the form of puns and double entrendres. One example, which was raised at the termination meeting, was the Applicant’s use of the reference to “MSS” (from the Respondent’s name) as “Martin’s Sex Service”. 5
[15] In relation to the incident itself, the Applicant provided the following evidence:
“On the previous day, I had a haircut which resulted in my hair being cut much shorter than it had previously been. It was short on the back and sides and I was left with a short fringe at the front.
...
At the time, Carol Graham was working in the pass office where the supervisor’s office is located. From time to time she would walk onto the veranda of the pass office to exercise supervision over my work. She would at those times have been able to hear [other people’s] comments being made about my haircut. I estimate that at least 1 person in 20% of the vehicles entering the Base between 6.00am and 7.00am that morning would have made a comment about my haircut.
At about 7.00am, fellow Access Control Officer Rosa Micallef, moved from the pass office to the gatehouse and I replaced her in the pass office.
Sometime later in the morning, I was standing checking the in-trays near the supervisor’s office. At that time, Carol Graham was sitting at her desk in the supervisor’s office to my right and directly visible through the door of the office. She was about 3 metres away from me and I was standing at right-angles to her.
At that time, I said to Ms Graham “Are you working Sunday?”. She replied “Yes.”
Whilst I was rubbing my hand back and forth over my hair, I then said words to the following effect: “Good, it’s my birthday on Sunday so maybe you can give me a decent head job”.
Ms Graham laughed out loud and said in a light hearted tone to me: “Oh yeah, I’ll give you a decent head job, I’ll bring in some clippers…”. I cannot recall the end of her comment, but I do recall that she was laughing as she said it. By that time, I had turned and was walking back into the office in the opposite direction.
...
Apart from making a joke, the purpose of the comment was also to inform Ms Graham that it was my birthday on Sunday, as she would be working that day. I was also aware that Rosa Micallef was working on Sunday and I thought I would include her in the joke. I picked up the phone in the pass office and rang the gatehouse where Ms Micallef answered. [which was in viewing distance] I said to her, within the hearing of Ms Graham, words to the following effect: “These supervisors or team leaders, or whatever they call themselves, there’s no pleasing them. I’m right for my birthday as Carol is bringing in some clippers and giving me a decent head job.” I heard Rosa laugh and Ms Graham was also laughing. Ms Graham came out of her office and walked in the direction of the window facing the gatehouse and said in a loud voice “Oh yeah, I’ll give him a head job, I’ll bring in a razor and shave his head.” There was more laughter from myself, Ms Graham and Ms Micallef and then everyone went back to work. I estimate that the whole incident took about 45 seconds.” 6
[16] Ms Micallef provided evidence that supported the Applicant’s version of events; that is, that she was telephoned by the Applicant, he conveyed the joke to her, and that she laughed. The Applicant’s evidence was that this call was made immediately after the exchange with Ms Graham. Ms Micallef confirmed under cross-examination that she had not heard the Applicant make the remark to Ms Graham prior to him making the telephone call to her. 7 She also stated that she saw the Applicant pat his head with an up and down motion as he relayed the commentary to her.8 Ms Micallef gave evidence that she saw Ms Graham laughing while making the comment that she would give him a decent haircut and bring in some clippers. She stated that Ms Graham did not display any sign that she was offended.9 Ms Graham’s evidence was in contrast to that of the Applicant and Ms Micallef. She denied laughing or responding to the Applicant or laughing when it was repeated to Ms Micallef.
[17] The Applicant claimed an additional exchange occurred later that same day between the Applicant and Ms Graham. The Applicant claimed this exchange mitigated against Ms Graham’s alleged reaction to his earlier comment in that Ms Graham had not taken any offence at this other comment. The Applicant provided the following evidence on this second exchange:
“I cannot recall having any further interaction with Ms Graham until about 2.00pm on the same day when she came and sat opposite me at the bench situated between the 2 windows in the pass office. Ms Graham was eating a piece of chicken thigh and I was somewhat envious that she had been able to get food while on duty. I made a flippant comment to the effect that: “I wouldn’t mind getting stuck into a nice piece of thigh like that either.” The comment was meant to be humorous and Ms Graham giggled which I thought was somewhat out of character for her. She finished eating the chicken and moved away without making any further comment.” 10
[18] Ms Graham did not record this exchange in her Affidavit.
[19] In respect of his relationship with Ms Graham, the Applicant stated that he regarded her as very competent, ‘not universally popular’, but that he considered they had an extremely good working relationship. 11 The Applicant stated, however, that he had never had this type of exchange with Ms Graham before.12
[20] Under cross-examination, the Applicant stated that he had called Ms Micallef (after the remark to Ms Graham) to “keep her involved in the joke”; 13 and so that she didn’t later think that he and Ms Graham were keeping secrets, as this was an issue that had arisen amongst the staff previously. The Applicant denied that he called Ms Micallef to ensure the remark wasn’t misinterpreted by Ms Graham.14
[21] He also stated that the comments about his haircut that had been made by people entering the Base that morning created a context for the remark. The Applicant stated that five or six people had joked with the Applicant, using the phrase “head job”. He conceded that without the context, the joke was lost. 15 No evidence was brought by the Applicant from any of these people and accordingly it is open to make a Jones v Dunkel16 inference in the absence of such evidence.
Ms Graham’s evidence
[22] Ms Graham provided evidence on the exchange. She was a supervisor of the Applicant. The Applicant stated that he and Ms Graham had a good professional relationship. He regarded his relationship with Ms Graham as friendly. Ms Graham agreed that they got on well. 17
[23] Ms Graham provided the following evidence in relation to the incident:
“Whilst I was working at the computer I heard Martin say, “Carol, are you working Sunday Night?”
I replied “Yes”.
Martin then said “It’s my birthday so you can give me a head job”.
I didn’t reply as I was totally dumbfounded by this inappropriate comment. I was ropable that Martin would say something like that as I believe that a head job refers to a sexual act. How do you process something like that and I thought about going and dropping him but I thought the better of it as it would constitute an assault and I didn’t think it would be appropriate.
I then saw Martin pick up the phone, as he was positioned directly in front of my office door, and say I just asked Carol if she was working Sunday and she said yes and I’ve asked her to give me a head job Sunday night. I believe that he had telephoned Rosa Micallef who was working in the guard box opposite the pass office. He was laughing as he conveyed the conversation to whoever was on the other end of the phone.
I walked out of the office as I thought I wasn’t going there with any other conversation and was upset with what Martin had conveyed to another person.
I drove up to the redevelopment gate where Officer Vanita Tarhanoff and a new employee were working. Vanita asked me when I first walked through the door if I was ok but I was too embarrassed to convey to her what had happened as I was still processing it.” 18
[24] Ms Graham made a complaint about the incident soon after.
[25] The Applicant denied Ms Graham’s version of events. 19 Ms Graham also denied that she said in response to the remark “I’ll give you a decent head job. I’ll bring in some clippers.”20 It was clear from cross-examination that Ms Graham’s recollection of some of the surrounding events were not as definite as the Applicant’s; she mentioned a number of times that she couldn’t remember or recall, and stated that she couldn’t recall the Applicant’s haircut.21 The ‘selective memory’ of Ms Graham was raised on behalf of the Applicant, and it was submitted that less weight should be attributed to Ms Graham’s evidence.
[26] However, Ms Graham definitely recalled the remark, described it as a “very offensive remark” and recalled sufficient detail of the day’s events to be a credible witness. The Applicant also conceded that he had made the remark.
[27] In relation to the ‘chicken thigh incident’, Ms Graham did not provide specific reference to this in her statement of evidence. She stated:
“I attended to other duties after visiting and subsequently returned to the pass office with lunch I had purchased after 1400. Martin was still in the pass office. I sat down in the front office to eat my lunch which is a normal practice of mine. I had limited conversation with Martin and focused only on work related issues. I was still upset and feeling very uncomfortable in his presence when our customer, [name withheld], came in and gave me instructions that a fax machine needed to be removed.” 22
[28] Ms Graham was not cross-examined on the chicken thigh remark. These remarks did not form part of the basis for the termination of the Applicant’s employment.
[29] Ms Tarhanoff (a Security Officer with the Respondent) provided evidence that she spoke with Ms Graham twice on the day of the incident (but she could not specify the times), and described Ms Graham as ‘looking very distressed and skittish’. 23 However, Ms Graham did not speak about either incident to her.
[30] Ms Graham rang her direct supervisor, Mr Doug Lansley (Defence Account Manager) on her mobile phone, from the carpark, at approximately 3.20 pm. 24 She recounted the incident with the Applicant to him.25 Mr Lansley stated that he suggested to Ms Graham to stay where she was, and that he would arrange for Mr Townsend to commence his shift earlier. Mr Lansley stated that Ms Graham “sounded subdued but not unduly upset or emotional”.26
[31] Mr Townsend provided evidence that he had been called by Mr Lansley on to the Base on the afternoon of the incident, where Ms Graham told him what had happened. Mr Townsend’s view was that Ms Graham was visibly upset. He said she was teary, pale, shaking and stammering. Mr Lansley then called Mr Townsend, informing him to suspend the Applicant, upon completion of the Applicant’s shift.
[32] Ms Graham followed up her complaint in an email to Mr Lansley, which was attached to her affidavit. In that email, Ms Graham stated “I thought about dropping him where he stood, but I thought if I did this I would then have to explain...why I had assaulted a co-worker”. 27 She also stated that “I do not want to work in the same work environment as Martin given I believe he will continue along the same lines or make it difficult for me to work with him as his supervisor”.28 It arose during evidence that Ms Graham no longer worked for the Respondent, and that she had resigned as a result of the incident with the Applicant and the events that followed. She stated ‘too much conflict, too much hassle, so I just walked away’.29
[33] Ms Graham stated in evidence that she suffered from migraines three or four times a year, and that those migraines were stress-related. At the time of the incident, and the subsequent few weeks, she stated:
“MR REED: Well, they [the migraines] weren’t related to anything that the applicant had done were they?
MS GRAHAM: It was the lack of sleep that was causing the migraines, so yes.” 30
[34] Ms Graham stated that, prior to the incident, she had cause to speak to the Applicant about saying “Martin’s Sex Service” and other comments. 31 The Applicant denied that Ms Graham had spoken to him about his jokes, or about any aspect of conduct or performance. However, he stated that the Respondent had issued a directive at some stage to employees to stop using phrases for the acronym MSS; in response he stated he stopped immediately.32
[35] Both the Applicant and Ms Micallef described Ms Graham as using robust language, such as ‘fuck’ or ‘fucking’. Ms Micallef described her as ‘rough and ready’. However, Ms Graham denied that she used such language, or ‘very, very rarely’. 33
The circumstances of the dismissal
[36] The Applicant was suspended from duty by Mr Townsend, on the same day of the incident, on the instructions of Mr Lansley. Mr Townsend stated that he spoke with the Applicant and informed the Applicant that he was suspended for “making an inappropriate comment to a staff member”, but did not specify to whom, or what the comments were. 34 The Applicant then spoke to Ms Micallef and another employee about the suspension immediately after it occurred.35 Mr Townsend also stated that the Applicant approached Ms Graham, and that he asked Ms Graham if he’d made an inappropriate comment to her,36 but the Applicant denied this.37 Ms Graham did not provide evidence on this point. Mr Townsend then escorted the Applicant from the office.
[37] Three days after the incident, Mr Lansley forwarded the email complaint from Ms Graham to Ms Margaret Stinson, the HR Manager. Mr Lansley stated that he then arranged a meeting with the Applicant on the following day.
[38] A meeting was convened with the Applicant, attended by Mr Lansley, Ms Stinson and Mr Malley. The Applicant provided evidence that he had not been provided with any details of the allegations against him. He stated that he had assumed it was his statement to Ms Graham in relation to the chicken thigh. Mr Malley stated that they had spoken about both of the incidents prior to the meeting. 38 The Applicant then confirmed he was questioned in relation to the “head job” incident. Mr Lansley confirmed that the allegation was put to the Applicant ‘a couple of minutes’ into the meeting and he confirmed he made the remark.39 Mr Lansley confirmed the Applicant was not invited to provide a statement in relation to the allegations.40
[39] The Applicant stated that he denied the comment contained any sexual reference, and told Mr Lansley and Ms Stinson to contact Ms Micallef. Ms Stinson’s handwritten notes of the meeting confirm this. 41 Mr Lansley and Ms Stinson held the view that the Applicant failed to acknowledge the seriousness of the complaint and he believed that his comments were acceptable in a group situation.42 Ms Stinson stated that the Applicant had commented that it wouldn’t be something that he would say to a child. Mr Lansley denied that the Applicant had characterised the comment as a joke.43 However, Mr Lansley stated that toward the end of the meeting, the Applicant became “emotional, animated and loud”. 44
[40] As part of the investigation, Mr Lansley and Ms Stinson contacted Ms Micallef and asked for her recollection of the events surrounding the comment. Ms Micallef’s evidence was more closely aligned with the Applicant’s than Ms Graham’s account in that she confirmed she heard Ms Graham participate in the joke when the Applicant repeated it to Ms Micallef on the phone. Mr Lansley and Ms Stinson also contacted Ms Tarhanoff later that day, who confirmed that Ms Graham had seen her twice that day, and she stated that Ms Graham seemed “skittish” and “upset”. 45
[41] Mr Lansley and Ms Stinson also contacted Ms Graham on that day. Mr Lansley stated Ms Graham denied making the comment “oh yeah, I’ll give you a decent head job, I’ll bring in some clippers”, in return to the Applicant, and that she had stated that she had not heard any previous comments about haircuts. Mr Lansley further stated that Ms Graham could not recall any other lunchtime conversation in relation to “the chicken thigh” remark.
[42] The Applicant stated, in relation to the Respondent’s policy ‘Maintaining a Respectful Workplace’ that he had seen the policy, but that he did not recall being provided with a copy. 46 He confirmed that he had completed an assessment on this workplace policy less than a year earlier (in which he received one hundred per cent accuracy), which included aspects on sexual harassment.47
[43] A document signed by the Applicant was tendered that showed the Applicant had confirmed receipt of a copy of the policy less than a year earlier. 48
[44] A second interview was conducted with Ms Graham with Mr Nick Samios, Queensland General Manager and his personal assistant present. 49 A formal written statement was taken from Ms Graham.
[45] Mr Malley stated under cross-examination that in relation to the process undertaken by the Respondent, questions were put to the Applicant at the initial meeting, which both the Applicant and Mr Malley had an opportunity to respond to. No decision was taken to terminate the Applicant’s employment at that meeting. 50
[46] Ms Stinson gave evidence that she later discussed the situation with the National HR/IR Manager, Ms Emma Clements and with Mr Samios. After this meeting, Ms Stinson stated that “after reviewing all materials, it was decided at this time that Mr Green’s employment would be terminated”. 51
[47] The following day, Mr Lansley phoned the Applicant to endeavour to schedule a meeting. Mr Malley was invited to attend, but was unavailable. The Applicant confirmed he wished to proceed without Mr Malley, and confirmed that he did not object to the meeting being conducted by the telephone rather than in person. 52
[48] Mr Lansley stated to the Applicant that he could see no other option but to terminate the Applicant’s employment due to the seriousness of the complaint and the effect that his actions had upon Ms Graham. Further, that the Applicant’s actions were contrary to acceptable workplace practices and the policy, in that the comment made by the Applicant could be deemed a request for sexual favours, rather than simply a joke. 53
[49] Ms Stinson stated that the Applicant was advised:
“that his actions were contrary to company policy, a breach of the Workplace Health and Safety Act 1995 and the Anti-Discrimination Act 1991, section 119, in relation to sexual harassment. Further Mr Green was advised that the company had communicated its policy in the form of the Maintaining a Respectful Workplace program in December 2008.” 54
[50] The termination letter was subsequently provided by mail, which confirmed that the Applicant would not receive any payment in lieu of notice, as the conduct was considered to be gross misconduct.
[51] Ms Stinson stated, that Mr Malley subsequently contacted her complaining that the punishment didn’t reflect the crime and sought the Applicant’s reinstatement. He requested a meeting so the Applicant could apologise to Ms Graham in person. Ms Stinson phoned Ms Graham to ascertain whether she would consent to such a meeting. Ms Graham declined, and three ‘Employee Assistance Program’ counselling sessions were subsequently organised for Ms Graham. Ms Stinson responded to Mr Malley, by email, that Ms Graham did not wish to talk to the Applicant. 55
Consideration
[52] There were a series of factual disputes between the evidence of the Applicant and Ms Graham, with respect to the critical incident. There is however no dispute that the Applicant said words to Ms Graham which represented “an invitation or a request for Ms Graham to give the Applicant a ‘head job’”. 56
[53] The Applicant and Ms Graham were the only parties to the conversation. The Applicant’s evidence was that whilst he used those words, he emphasised that they were accompanied by his patting his head. 57 Ms Graham’s evidence was that she did not see the Applicant patting his head, but that she was looking at her computer screen and it was the words that caused her to look up.58
[54] Ms Graham’s evidence was that she met the comment with stunned silence and made no reply because she believed that the comment was inappropriate.
[55] Ms Micallef’s evidence was that when the Applicant relayed the joke to her over the phone she saw the Applicant patting his head. 59
[56] I had the benefit of carefully assessing the Applicant, Ms Graham and Ms Micallef provide their evidence. Ms Graham’s demeanour was consistent with her self-assessment as a no-nonsense sort of person. 60
[57] There were some gaps in Ms Graham’s recollection of the surrounding events, however her evidence was provided in a relatively dispassionate manner. She had, as stated, left her employment as a consequence of this incident. She did not present as being comfortable with having to revisit this episode. She did not demonstrate any vindictiveness towards the Applicant.
[58] Ms Graham’s evidence was clear that she did not use any words in response to the Applicant, and that his remarks were met with silence from her. The Applicant’s actions then in immediately phoning Ms Micallef are commensurate with him recognising her reaction to the comment and then endeavouring, by repeating it to Ms Micallef, to diminish the impact of the words or to explain them by virtue of restating the words to Ms Micallef that his intention was a joke. The Applicant’s actions in confirming to Ms Micallef that he had just made this request to Ms Graham, and as such widening the audience, aware of the remark, caused Ms Graham further embarrassment.
[59] That the Applicant made the remark to Ms Graham is not in dispute between the parties. The issue here is whether the actions constituted a valid reason for dismissal. The termination letter cited an “inappropriate question of a sexual nature directed at an MSS employee” as the reason for the Applicant’s dismissal. The Applicant sought to rely upon Ms Graham’s response to the remark (“oh yeah, I’ll give you a head job, I’ll give you a decent haircut, I’ll bring in some clippers”) to demonstrate that there was no sexual harassment, as Ms Graham could not have taken offence to the remark if she had joined in the ‘joke’.
[60] Furthermore, it was submitted on behalf of the Applicant that he never intended to make a request for a sexual favour. It was submitted that the Applicant’s remarks “might be viewed as clumsy, was a casual comment intended to be, and recognised by Ms Graham as, humorous in a slightly risqué fashion”. 61 It was submitted on behalf of the Applicant that Ms Micallef’s evidence in support of the Applicant was straightforward and honest and should be accepted. However, the Respondent suggested there was collusion in the provision of their evidence, between Ms Micallef and the Applicant.62
[61] The evidence for the Applicant was discredited as reflected in the Respondent’s submissions as follows:
“The applicant’s case embellishes the explanation of the incident and has done so at each point where statements were prepared that supported the “haircut explanation”. On each new round of materials, the applicant’s evidence introduced subtle but significant new details that take his version of events more towards a haircut being the dominant theme of the day and of the incident. For example:
(a) Ms Micallef swore a statutory declaration on 16 September 2009 just prior to the FWA teleconference. In paragraph 10 of the statutory declaration Ms Micallef attributes the following comments to Ms Graham:
“Oh yeah, I’ll give you a head job, I’ll give you a haircut.”
(b) But later, in Ms Micallef’s witness statement filed for hearing of this matter, that string of words has been added such that they now read:
“Oh yeah, I’ll give you a head job, I’ll give you a decent haircut, I’ll bring in some clippers.”
(c) The defining word “decent” did not appear in the statutory declaration, nor was it something Ms Micallef told Mr Lansley or Ms Stinson in the phone interview on 18 August 2009. It has been added later. It is an embellishment. Its late insertion into the statement is designed to change the complexion of the comment in the hope the term “head job” might end up looking a bit more like it was said in reference to a haircut than the more obvious meaning of oral sex.
(d) Likewise, the applicant did not use the defining word “decent” in his interview on 18 August 2009 but the word now appears in his latest witness statement.
(e) The reference to “clippers” is also a new addition. It too is a significant detail added later on in the piece in the hope that it contextualises the comment and conversation alleged by the applicant (denied by the complainant) to have occurred.
(f) The applicant’s witness statement (paragraph 35) claims that he was rubbing his hand back and forth over his hair when he asked Ms Graham for a “head job”. However, this important piece of context giving information was not provided when the applicant was interviewed.” 63
[62] The following submissions for the Respondent also undermine the Applicant’s position in relation to the remark:
“Furthermore, the applicant claims Ms Graham was laughing along and enjoying herself at the time. That it was a group situation at all times. Ms Micallef’s evidence puts a lie to that story. Ms Micallef was not involved in any way (proximally, visually or aurally) until the applicant called her on the phone. But even if Ms Graham was laughing when the applicant made his request (which is strongly denied), then there would be no reason for the applicant to be concerned at the time that he had been misinterpreted. This early admission by the applicant lends a great deal of weight to Ms Graham’s claim that what Ms Graham says happened did in fact occur: a stunned silence. That is the only plausible explanation as to the phone call being made by the Applicant to Ms Micallef, which was made by the quick-thinking applicant having then realised the seriousness of his mistake.
As well, the applicant says that he knew at the time he made the call to Ms Micallef that his comment was of such an unsavoury nature that he did not want customers or children perhaps to hear it (transcript PN139). That is one of the reasons admitted by the applicant to have been motivating his use of the telephone to convey his joke to Ms Micallef. That reasoning is telling. It is very much at odds with the reasoning by the applicant that the comment would be so obviously construed by those who heard it (ms [sic] Graham for example) as to be a reference to a haircut. It is submitted that one simply does not seek to shield the ears of the innocent from something one truly believes to be innocent. The admission by the applicant at transcript PN139 makes it clear that both then and now, the applicant knew his comment was of a most unsavoury nature. It had nothing to do with haircuts at all.
Furthermore, when given the opportunity to do so, the applicant did not express regret. Despite being trained in sexual harassment policy, the applicant argued the appropriateness of his remarks. He effectively suggests that his own personal and subjective view or experience with the term “head job” should be counted higher than that of the reasonable and objective person or indeed the complainant herself.” 64
[63] A number of decisions were referred to by Counsel in relation to the termination. It is clear that there were a number of distinguishing factors between the elements of those cases and the facts of the current matter. All of the circumstances of this matter including the nature of the culture and language of the workplace, that the termination turned on the one incident, and that the terms of the policy were known to the Applicant have been considered against these authorities as raised.
[64] Both Counsel referred to the decision of Raffaelli C in Ramon Bagtas v Sydney Ferries Corporation. 65The Applicant submitted this decision should be distinguished from the present matter as the Applicant in that matter committed a series of acts constituting sexual harassment that were of a more serious nature than that of the Applicant in this matter.
[65] In Brian Brown and Poasa Tyrone Fatialofa v Coles Group Supply Chain Pty Ltd, 66the Respondent submitted that where an employee harasses another employee, even in a situation where rough language is commonplace at the workplace, a valid ground for dismissal still exists where harassment is the result. The Applicant sought to distinguish this decision on the basis that it was bullying in relation to race and religion, and not sexual harassment. Commissioner Whelan in Heard v Australia Post67 also decided that ongoing sexual harassment constituted a valid reason.
[66] The Applicant also referred to the case of New South Wales Attorney-General’s Department v Miller 68, on the basis that in that matter, despite a series of incidents occurring outside of hours, the Applicant was reinstated, as it was relevant that he didn’t understand, or intend for his conduct to amount to sexual harassment.
Section 387
[67] In accordance with s.387 of the Act, FWA is required to consider certain matters when determining whether a dismissal was harsh, unjust or unreasonable.
s.387(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);
[68] It was submitted on behalf of the Applicant that it is not for this tribunal to ‘descend into some sort of forensic examination of whether unlawful sexual harassment occurred’. 69 The Respondent, however, sought to demonstrate that the conduct did amount to sexual harassment and this sexual harassment did amount to a valid reason for the Applicant’s dismissal.
[69] It was also submitted on behalf of the Applicant that it would be odd for a 64 year old man with a lengthy employment period to make an intentionally offensive sexual remark to a fellow employee particularly one in a supervisory position to him. 70
[70] The issue is whether the Applicant’s comment alone constituted a valid reason for termination. The Applicant sought to demonstrate that Ms Graham’s response to the remark confirmed her understanding of the joke and diminished the offensive nature of the comment.
[71] The Respondent argued that the remark, even if it was a joke, did constitute a valid reason. The Respondent relied on the sexual harassment policy to demonstrate that the Applicant was aware that such comments could offend a colleague, and that a breach of that policy could lead to disciplinary action, including termination of employment.
[72] The Applicant had signed to confirm he had received a copy of the relevant workplace policy some eight months earlier. The ‘Maintaining a Respectful Workplace’ 71 identified a general responsibility of “all employees of MSS Security Pty Ltd” to “...ensure we all work in a safe, respectful workplace free from discrimination, harassing and bullying behaviour...” The policy also documents the possible consequences of a report of potential harassment and a variety of processes to deal with such.
[73] In relation to the obligations of employees in relation to sexual harassment, the policy stated the following:
- sexual or racial jokes;
- requests for sex;
- sexually explicit conversations;
“...
Harassment may be unintentional; however, this is not a defence to a grievance.
Harassment can include a wide range of behaviour which causes another person distress. Behaviour which may be acceptable or even welcome in other contexts, e.g. between friends in a social context, can be inappropriate at work. The following are some of the forms (a comprehensive list is not possible) harassment can take at work:
...
...
...”
[74] The Applicant undertook a test on this policy on the day it was provided. He achieved one hundred per cent accuracy on the assessment including answering positively and correctly to the following question:
“A co-worker comes up to you and makes a joke of a sexually orientation nature. You are not in any way offended. Could this still be a form of sexual harassment, and why?” 72
[75] No compelling evidence or references were produced to establish the use of the term ‘head job’ as universally recognised in the Australian vernacular as meaning ‘hair cut’. To the contrary, Australian vernacular recognises the term “head job” as having sexual connotations.
[76] Even if the assessment of the evidence is incorrect and Ms Graham did respond with the remark attributed to her, it does not alter the fact that the alleged misconduct occurred. The Applicant made a sexually offensive remark or request to Ms Graham. As concluded by the Respondent, the Applicant’s conduct was serious misconduct in relation to the “inappropriate question of a sexual nature directed at an MSS employee.” 73 There is no plausible reason why Ms Graham would invent her offence to the remarks. Up until this point, she and the Applicant had a good working relationship.
[77] The behaviour was clearly a breach of the workplace policy and therefore provided a valid reason for the dismissal.
[78] The policy sets out the methods of investigation and the options for informal and formal resolution of alleged harassment. This case was deemed to be serious and given Ms Graham would not speak to the Applicant, informal methods of resolution were not open to the Respondent:
“It is the Company’s policy to investigate each discrimination, harassment or bullying complaint thoroughly and promptly. If an investigation confirms that discrimination, harassment or bullying has occurred, the Company will take disciplinary action up to and including termination.
- A verbal of [sic] written apology from the respondent
- Mediation between the parties
- Training on harassment, discrimination and bullying (or other skills development for one or both parties)
- Moving the respondent to other work assignments so that he/she no longer works with the claimant
- A formal warning
- Temporary or permanent demotion
- Termination of employment in serious instances” 74
...
Any disciplinary action should be appropriate to the nature of the offence - consider whether it is a first or repeated offence, the severity of the behaviour and so on. If the allegation was substantiated, appropriate actions may include some combination of:
s.387(b) whether the person was notified of that reason;
[79] The Respondent notified the Applicant of the reason for his dismissal prior to effecting such. However, the Respondent should have taken additional steps to ensure the Applicant was aware of the allegations prior to the initial meeting. The complaint was conveyed to him at the meeting however it was clearly obvious to the Applicant the exchange that was being referred to.
s.387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[80] The Applicant conceded that he was notified of the reason for his dismissal, however he did submit that the Respondent’s investigation ‘lacked depth’, and that its failure to properly advise him of the allegations in a timely manner undermined the process. However, the Applicant had been made aware of the substance of the complaint at the initial meeting.
[81] It was submitted on behalf of the Applicant that he was denied appropriate procedural fairness he was suspended from duty for allegedly making inappropriate comments to a fellow employee but at that time the fellow employee was not identified and the complaint not particularised. It was submitted that he came to understand the nature of the allegations against him as a result of a series of questions put to him at the meeting with Mr Lansley, Ms Stinson and his Union Organiser, Mr Malley. No apparent prejudice was suffered by him because of this process. At this meeting the Applicant provided an explanation of the circumstances surrounding the joke; and his repetition of it to Ms Micallef. He stated that the comment was intended as a joke with a double entendre and denied that it was meant to contain any sexual reference. The Applicant was given an opportunity to respond to his alleged conduct and such response was taken into account by the Respondent in determining the disciplinary outcome.
s.387(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
[82] The Applicant agreed that he was provided with the opportunity to have a support person throughout the interview process. The support person was from his Union. The Applicant elected to undertake the final meeting by phone without his support person present due to scheduling issues.
s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[83] The Applicant had been cautioned not to refer to the Respondent as “Martin’s Sex Service”. The Applicant stated that he had immediately stopped this behaviour upon employees receiving a general directive not to. Further the Applicant had confirmed he had received the Respondent’s relevant policy that prohibited comments of a sexual nature at the workplace. He had demonstrated his knowledge of this policy via a written assessment that included a test of his knowledge on sexually oriented jokes.
s.387(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
s.387(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
[84] With respect to s.387(f) and (g) of the Act, it was agreed by the parties that the Respondent is a large employer with dedicated human resource specialists, accordingly the procedures used by the Respondent have been assessed against this standard.
s.387(h) any other matters that FWA considers relevant
[85] The Applicant submitted that even if FWA considered the behaviour that led to his dismissal constituted a valid reason, the dismissal was harsh and unreasonable in the circumstances because of his length of service, age and the personal and economic situation of the Applicant; and that the penalty of dismissal was disproportionate to the breach of policy.
[86] It was also argued on behalf of the Applicant that this was a matter where alternatives other than dismissal were available to the Respondent, specifically that this was a matter that could have been mediated and potentially resolved between the parties.
[87] In this regard it was submitted that the Applicant was 64 years of age; had worked in the same position with the Respondent for 21 years; and was a hardworking and diligent employee. He also submitted that he was, during and after the investigation, willing to apologise to Ms Graham for any offence she may have experienced as a result of the remark.
[88] In support of his claim for reinstatement, the Applicant pointed out that the Respondent is a large organisation and it was possible to accommodate his re-employment; and that this would be made easier as Ms Graham was no longer employed by the Respondent. The Applicant also submitted that he had maintained good relationships with other supervisory and management personnel.
[89] Issues also considered were the nature of the comment, the need to maintain the Respondent’s policy and an appropriate code of behaviour across a large workforce.
Conclusion
[90] The Applicant’s conduct was a clear and significant breach of the policy. This was not a matter that could have been informally resolved in terms of the policy given Ms Graham’s reaction to the remark and that she would not speak with the Applicant. The option of returning the Applicant to an alternative position or worksite would have communicated to this large workforce an acceptance of the conduct. The conduct was commensurate with the meaning of serious misconduct (as set out in Regulation 1.07 of the Regulations) in that the Applicant’s conduct was wilful or deliberate behaviour by an employee that was contrary to the workplace policy, and inconsistent with the continuation of the employment contract.
[91] Taking into account both the alleged context of the remark and the mitigating circumstances raised by the Applicant; his conduct was in breach of the Respondent’s policy. This approach to a termination of employment is consistent with that adopted in the Full Bench authority Woolworths Limited (t/as Safeway) v Cameron Brown 75as follows:
“In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.” [referring to Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 per Northrup J] A failure to comply with a direction to do or refrain from doing something in compliance with a employer’s policy will not provide a valid reason for termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or
(b) the policy, or a direction to comply with the policy, is unreasonable.
What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate. As the Full Bench observed in the XPT Case [referring to (1984) 295 CAR 188], albeit in a somewhat different context, it is not the role of the Commission "...to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”” 76
[92] In relation to facts of this breach of policy, the Applicant could not establish any ignorance of the policy or inconsistent or discriminatory application of the policy. 77 The effect of the penalty of termination of the Applicant has been given significant consideration given the length and nature of his service.
[93] Taking into account all of the circumstances of this application as set out, I do not find that the Applicant’s dismissal was harsh or unjust or unreasonable. In line with this conclusion, I dismiss the Applicant’s application pursuant to s.394 of the Act. I Order accordingly.
COMMISSIONER
Appearances:
Mr Robert Reed, of Counsel, instructed by LHMU for the Applicant
Mr Daniel Pratt, of Counsel, instructed by Employer Services Pty Ltd for the Respondent
1 Attachment MG2, Exhibit 1, Statement of Mr Martin Green.
2 Exhibit 1, Statement of Mr Martin Green.
3 Exhibit 1, Statement of Mr Martin Green.
4 Exhibit 6, Statement of Rosa Micallef.
5 Exhibit 1, Statement of Mr Martin Green.
6 Exhibit 1, Statement of Mr Martin Green.
7 PN316, Transcript of Proceedings.
8 Exhibit 7, Supplementary Statement of Ms Rosa Micallef.
9 Exhibit 6, Statement of Ms Rosa Micallef.
10 Exhibit 1, Statement of Mr Martin Green.
11 PN49, Transcript of Proceedings.
12 PN78, Transcript of Proceedings.
13 PN82, Transcript of Proceedings.
14 PN80-113, Transcript of Proceedings.
15 PN158-177, Transcript of Proceedings.
16 (1959) 101 CLR 298.
17 PN492, Transcript of Proceedings.
18 Exhibit 9, Affidavit of Caroline Graham.
19 PN131, Transcript of Proceedings.
20 PN560, Transcript of Proceedings.
21 PN562-565, Transcript of Proceedings.
22 Exhibit 9, Affidavit of Caroline Graham.
23 Exhibit 10, Affidavit of Ms Vanita Tarhanoff.
24 Exhibit 12, Affidavit of Mr Douglas Lansley
25 PN631-658, Transcript of Proceedings.
26 Exhibit 12, Affidavit of Mr Douglas Lansley.
27 CG1, Exhibit 9, Affidavit of Caroline Graham.
28 Exhibit 9, Affidavit of Caroline Graham.
29 PN727-729, Transcript of Proceedings.
30 PN726, Transcript of Proceedings.
31 Exhibit 9, Statement of Ms Caroline Graham.
32 Exhibit 2, Supplementary Statement of Mr Martin Green.
33 PN529-532, Transcript of Proceedings.
34 Exhibit 11, Affidavit of Mr Warren Townsend.
35 Exhibit 1, Statement of Mr Martin Green.
36 PN849, Transcript of Proceedings.
37 Exhibit 1, Statement of Mr Martin Green.
38 PN383, Transcript of Proceedings.
39 PN901, Transcript of Proceedings.
40 PN918-919, Transcript of Proceedings.
41 MS2, Exhibit 13, Affidavit of Margaret Stinson.
42 Exhibit 12, Affidavit of Mr Douglas Lansley and Exhibit 13, Affidavit of Margaret Stinson.
43 PN913, Transcript of Proceedings.
44 Exhibit 12, Affidavit of Mr Douglas Lansley.
45 Exhibit 10, Affidavit of Ms Vanita Tarhanoff.
46 Exhibit 2, Supplementary Statement of Mr Martin Green.
47 PN190-203, Transcript of Proceedings.
48 Exhibit 5, Acknowledgement by Mr Green of Receipt and Completion of the Maintaining a Respectful Workplace Questionnaire.
49 PN931-937, Transcript of Proceedings.
50 PN402-407, Transcript of Proceedings.
51 Exhibit 13, Affidavit of Margaret Stinson.
52 Exhibit 12, Affidavit of Mr Douglas Lansley.
53 PN943-946, Transcript of Proceedings.
54 Exhibit 13, Affidavit of Ms Margaret Stinson.
55 DM1, Exhibit 8, Statement of Mr David Malley.
56 Applicant’s Final Submissions, paragraph [5].
57 Applicant’s Final Submissions, paragraph [7].
58 PN555-556, Transcript of Proceedings.
59 Applicant’s Final Submissions, paragraph [10].
60 Applicant’s Final Submissions, paragraph [3], PN526-527, Transcript of Proceedings.
61 Applicant’s Submissions.
62 Respondent’s Final Submissions.
63 Respondent’s Final Submissions, paragraph [19].
64 Respondent’s Final Submissions, paragraphs [15]-[18].
65 Rafaelli C, [2007] AIRC 693 (4 September 2007).
66 Cargill C, [2008] AIRC 1127 (24 July 2008).
67 Whelan C, Print R1250, 2 February 1999.
68 Wright J President; Harrison DP; Boland J, [2007] NSWIRComm 33.
69 PN1025, Transcript of Proceedings.
70 PN1188, Transcript of Proceedings.
71 MS4, Attachment to Exhibit 13, Affidavit of Ms Margaret Stinson.
72 Exhibit 4, Question 9, Maintaining a Respectful Workplace Assessment.
73 Attachment MG2, Exhibit 1, Statement of Mr Martin Green.
74 MS4, Attachment to Exhibit 13, Affidavit of Ms Margaret Stinson.
75 Lawler VP, Lloyd SDP and Bacon C, PR963023, 26 September 2005.
76 At [34]-[35].
77 Per [36].
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