Mr Philip Dempster v Top End Mental Health Consumers Organisation T/A Temhco Inc

[2013] FWC 3059

[2013] FWC 3059

FAIR WORK COMMISSION

DECISION

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

Mr Philip Dempster
v
Top End Mental Health Consumers Organisation T/A TEMHCO Inc
(U2012/14718)

DEPUTY PRESIDENT BARTEL ADELAIDE, 15 MAY 2013

Termination of employment

Introduction

[1] Phillip Dempster (the applicant) was dismissed from his position of Manager on 26 October 2012 after approximately 2 years of service. His employer, Top End Mental Health Consumers Organisation (TEMHCO or the employer) is a not-for-profit community organisation, which operates under the supervision of the Top End Mental Health Service (TEMHS). TEMHS is the Northern Territory Government’s mental health clinical services provider and has responsibility for funding non-government mental health services, including TEMHCO, with which it has service agreements. TEMHCO provides support to persons with mental health problems and is governed by a Committee of Management (the Committee).

[2] The applicant was one of two employees. The other paid position was the Recovery Support Worker. The role of Manager is to ensure that clients are presented with a safe environment and are engaged in activities that will assist them towards recovery. Specific functions of the Manager include day to day planning for the organisation, networking with other agencies and the safe supervision of the Recovery Support Worker, volunteers and clients whilst in TEMHCO’s care. 1

[3] The applicant was dismissed because the Committee formed the view that, whilst under suspension, he:

● Interfered with TEMHCO mail by redirecting work emails to his laptop and opened and answered emails.
● Accessed the TEMHCO office computer remotely.
● Continued to have contact with [G]. 2

[4] The Fair Work Amendment Act 2012 modified certain provisions of the Fair Work Act 2009 (the Act) from 1 January 2013, including some of the provisions relating to unfair dismissal in Part 3-2 of the Act. The applicant was dismissed before the amendments came into force, and accordingly the Act as it stood prior to 1 January 2013 applies. However where there has been no substantive change to the relevant provisions of the Act, the amended legislation incorporating the Tribunal’s new name of the Fair Work Commission (the FWC) is cited in this decision.

[5] Section 385 of the Act defines when a person has been unfairly dismissed as follows:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[6] Section 396 of the Act sets out certain matters that the FWC is required to determine prior to considering the merits of the application, and, provides that:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[7] The parties are agreed that the application was filed within the specified period. There is no dispute that TEMHCO is a small business employer; that the applicant had completed the minimum employment period as at the date of his dismissal; or that he was otherwise a person protected from unfair dismissal in accordance with s.382 of the Act. It is also agreed that the dismissal was not a case of genuine redundancy. As such, the matter that falls for initial determination is whether the dismissal is consistent with the Small Business Fair Dismissal Code (the Code). If the dismissal is consistent with the Code, then not all of the preconditions for a determination of unfair dismissal have been met, and the application must be dismissed.

Preliminary issues

[8] In the course of a directions conference on 25 February 2013 3 the FWC granted both parties permission “... to be represented pursuant to s.596(2) of the Act”.

[9] In the week prior to the hearing, the employer, represented at that stage by legal practitioner Peter Mariotto of MSP Legal, filed a Form F4 Objection to Application for Unfair Dismissal Remedy. The application was accompanied by a statutory declaration of Mr Gregory Johnson, the Chairperson of the Committee. 4 The Objection sought the dismissal of the substantive application on the basis that the employer was a small business employer and had complied with the Code.

[10] The substantive hearing was scheduled in Darwin on 10 and 11 April 2013 and the employer’s ‘objection’ was dealt with prior to the commencement of the substantive hearing. At that time, the employer was represented by Mr Mahendra, of counsel, and the applicant was represented by Mr Matarazzo, paid agent.

[11] Mr Matarazzo objected to the employer being represented by counsel. He submitted that the applicant’s initial lack of opposition to the employer being represented by legal practitioner was based on his understanding that Mr Mariotto was the employer’s chosen representative. Mr Matarazzo submitted that representation by experienced counsel would be unfair to the applicant and that Mr Mahendra had failed to establish that his representation of the respondent satisfied any or all of the criteria in s.596(2) of the Act.

[12] Mr Mahendra submitted that the FWC had already granted permission for the employer to be represented by legal practitioner or paid agent and there was no requirement for further permission to be sought. He argued that the Act did not make a distinction between solicitors and counsel and that, permission having been granted by FWC, it was up to the respondent to choose its representative.

[13] I consider that this is a correct interpretation of the provisions in s.596 of the Act in the context of the particular direction issued in this matter. Had I specified that permission was granted for the employer to be represented by Mr Mariotto, then it is arguable that Mr Mahendra would need to make a further application for permission to appear and to satisfy the FWC that one or more of the circumstances set out in s.596(2)(a) to (c) were satisfied.

[14] The employer’s F4 Objection is effectively an application for the proceedings to be conducted in a particular manner. It is uncontroversial that the FWC is required to determine whether the dismissal was consistent with the Code before considering the merits of the application, but how the FWC conducts its proceedings is a separate matter. Mr Mahendra submitted that the proceedings would be conducted more efficiently if submissions were initially limited to the issue of compliance with the Code and that, depending on the FWC’s determination on that matter, the issue of whether the dismissal was harsh, unjust or unreasonable could be heard and determined if necessary. Unsurprisingly, Mr Mahendra contended that the documentation filed with the objection established that the respondent had complied with the Code. He referred to various decisions outlining the requirements of the Code, and in particular Pinawin T/A RoseVi.Hair.Face.Body v Domingo (Pinawin). 5 This decision is discussed later in the decision.

[15] Mr Matarazzo objected to this course of action, submitting that the respondent had failed to comply with the direction to file an outline of argument by the required date and that the application amounted to an ambush. He submitted that the applicant had filed his documents and witness statements in accordance with the Directions issued by the FWC and on the basis that the case would be heard in its entirety.

[16] Having considered the parties’ submissions, I declined the employer’s application and determined that the parties should proceed to put their entire case. There were several matters taken into account, including the late filing of the application and the potential disruption to the applicant’s case. The most persuasive matter in my view however was that the relevant facts may not be able to be isolated to the issues associated with compliance with the Code. I formed the view that proceeding in the manner advanced by Mr Mahendra would likely give rise to substantial argument between the parties as to the relevance of certain evidence and on this ground alone would not be productive of an efficient hearing. This view was reinforced by the ‘scattergun’ approach to the applicant’s case that was the hallmark of the outline of argument filed by Mr Matarazzo.

The evidence

[17] Prior to the hearing Mr Matarazzo applied for orders that Mr Johnson, and Committee members Ms Loraine Davies and Ms Joy Green be summoned to present at the hearing. Mr Mahendra indicated that these persons would otherwise have been called as witnesses for the respondent. Consequently, the evidence of these Committee members was unhelpful and at times damaging to the applicant’s case. As noted earlier Mr Johnson provided a statutory declaration for the respondent.

[18] The first witness for the applicant was Stephen Ward, Systems Engineer with Area 9 IT Solutions. 6 Mr Ward undertook a system check of the respondent’s desk top computer and a lap top computer on 9 November 2012 and prepared a report for TEMHCO dated 12 November 2012.7 His involvement therefore post-dates the applicant’s dismissal and his evidence relating to the audit of the computer is not relevant to the employer’s compliance with the Code, which is concerned with the employer’s reasonable belief at the time of dismissal. For convenience Mr Ward’s evidence will be considered if it is necessary to determine whether the dismissal was harsh, unjust or unreasonable.

[19] The applicant was not a good witness, in thathe became argumentative and defensive during cross-examination. He appeared frustrated at the matters being pursued by Mr Mahendra, believing that there were more important issues relevant to his termination. Nonetheless I am satisfied that he gave his evidence honestly and in this regard he made a number of concessions as to his conduct, albeit at times begrudgingly. These matters are canvassed in the narrative of facts that follows.

[20] Committee members Ms Davies and Ms Green were actively involved in the investigation into the applicant’s conduct. I consider that both witnesses were genuine and considered in the evidence that they gave and that both were reliable witnesses.

[21] I consider that Mr Johnson was also a truthful witness although I have a concern about the reliability of aspects of his evidence where his answers were inconsistent with other evidence before the FWC. For example, Mr Johnson denied having attended the Casuarina Police Station on 26 October 2012, when both the Police Report 8 and the evidence of Ms Green attest to the fact that he was present.9 In most respects Mr Johnson’s evidence was not helpful to either side since Ms Green and Ms Davies could speak in more detail on the circumstances surrounding the applicant’s dismissal.

[22] Documentary evidence will be referred to where relevant in the following section.

The relevant facts

[23] The applicant was suspended on 27 September in the course of a meeting of the Committee 10 which had been convened to consider a complaint by a client of TEMHCO, who will be referred to as ‘K’, against the Recovery Support Worker, who will be referred to as ‘G’. The complaint dated 27 September, alleges that:

● A sexual relationship had developed between K and G;
● When the applicant found out about the relationship, he told K not to say anything.

[24] At the meeting the applicant distributed copies of two incident reports he had prepared dated 14 August 2012 and 17 September 2012. 11 There is a conflict in the evidence as to whether the reports circulated at the meeting were partial or completed reports.

[25] The first incident report dated 14 August 2012 appears to traverse events over some period of time and concerned approaches to the applicant by G, wherein she advised her concern “that the relationship between her and K was becoming uncomfortably close”. The incident report indicates the steps taken by the applicant to reinforce the professional boundaries with both G and K. The incident report notes that K’s mental health was improving and “... [K] was adamant that he knew the deal and was not falling in love ... and [G] stopped any intimate talk immediately...”.

[26] The report stated that “[K] understood that there would never be an intimate relationship [with G] under any circumstances as she has a husband and children”.

[27] The second incident report dated 17 September 2012 recorded the actions of K during the course of that day. It stated that K had made threats toward TEMHCO, directed verbal abuse against G, and at one stage was “... standing over [G] with his fists clenched screaming that she was a cunt and ... [saying to G] ‘I am going to smash you’”.

[28] The second incident report also noted that the applicant had been contacted by the police at approximately 6.30pm that day to advise that K had made a complaint of sexual harassment against G to the police.

[29] The applicant provided copies of the incident reports to G to check for accuracy 12 and this became apparent to the committee at a later stage when it obtained access to the applicant’s laptop.

[30] In the course of the Committee meeting on 27 September the applicant was advised that G would be suspended and, according to the minutes of the meeting, he became angry and expressed the view that the complaint was fabricated. At some later stage in the meeting the applicant was suspended and the minutes record that he was asked to hand over his mobile phone and keys, and told not to have any contact with G or anyone else from TEMHCO.

[31] Correspondence was sent to the applicant on 28 September under Mr Johnson’s signature 13 which alleged that the applicant:

● Had failed to follow incident reporting procedures by not notifying the committee of K’s police complaint of sexual harassment;
● Failed to comply with the Code of Conduct;
● Continued to allow G to carry out home visits with K after he had become aware that G was concerned about the relationship that had developed between herself and K;
● Had returned to the office after he was suspended on 27 September and in contravention of a direction that he not do so; and
● Had met with G and downloaded information from G’s phone to the computer.

[32] The letter stated that the allegations, if proven, would be considered gross misconduct and grounds for instant dismissal. The applicant was advised not to have any contact with staff or clients of the respondent, not to attend the office and that he was not to represent TEMHCO at any functions, meetings or training. The applicant was invited to respond to the allegations, which he did on 8 October. 14

[33] I will not set out the detail here but in essence the applicant denied trying to cover up K’s complaint against G and did not accept that he had acted improperly or in a manner inconsistent with the respondent’s policies and/or directions. It was his view that the relationship between K and G was under control and proceeding appropriately when he wrote the incident report of 14 August. He stated that he intended to notify the committee of K’s police complaint when he received updated details from the police. The applicant refuted that he was told not to return to the office after he was suspended.

[34] In a letter dated 10 October 15 the Committee set out its belief that the applicant had put the health and safety of the client and G at imminent risk and had caused imminent risk to the reputation of TEMHCO by not following the correct reporting procedures. The applicant was invited to attend a meeting on 12 October with a representative of his choice.

[35] The applicant sent a further written response to the Committee. 16 He maintained that he did follow TEMHCO procedure with the incident report of 14 August because the requirement upon him was to categorise the incident and provide feedback to the Committee by way of consolidated reports which he intended to do at the next meeting. He also maintained that the situation between K and G was under control at the time.

[36] The applicant stated that he took full responsibility for not contacting the Committee about the police complaint made by K. In his defence, he stated that both he and the police officer who took the complaint believed K had fabricated the allegation and that K was unwell and had requested to be taken to hospital immediately after making the complaint. The applicant also noted that on 18 September he had been contacted by the General Manager of TEMHS who expressed the view that TEMHS did not need to conduct an inquiry.

[37] He indicated that G initially had some issues with personal/professional boundaries but that this had been rectified through training. It was his view G then adopted a more professional approach and that this had led to K becoming agitated and had resulted in the events of 17 September 2012.

[38] On 12 October 2012 the committee resolved that the applicant would return to work after mediation with K and subject to certain other conditions which were set out in a letter dated 15 October. 17 Seventeen matters were stipulated by the employer that addressed protocols, training, reporting requirements, the development of a client complaints procedure and operating procedures concerning staff contact with clients. The applicant was advised that he would be instantly dismissed if there were any further misdemeanours within the next 12 months.

[39] The applicant accepted these conditions, under protest, on 18 October 2012. 18 No return to work date was set as it was subject to mediation with K.

[40] Ms Davies stated under cross-examination that the Committee decided not to terminate the applicant’s employment because the Committee members weren’t indemnified against costs arising from legal action taken against TEMHCO. 19 I understand that the Committee was concerned that if the applicant challenged his dismissal there may be costs awarded against TEMHCO.

The laptop and hard drive

[41] Committee members had become concerned that they were unable to access emails or a range of files on the work computer. 20 The applicant was asked about password access and advised that there was no change to the computer password and that no password was required to access emails. As the Committee members continued to have access issues, TEMHCO engaged a firm called Terabyte to override the existing password and create a new one.21

[42] Once the computer files could be accessed, it was discovered that a number of the files pertaining to the finance and operations of TEMHCO (excluding client files), were empty. Consequently the employer was unable to conduct the full range of business activities. It was also discovered that no emails had been received. 22

[43] At some stage between 15 October and 24 October, TEMHCO became aware that the applicant had one of the employer’s laptops in his possession. Ms Davies’ stated that members of the Committee thought there may be a connection between this and the difficulties they had, and continued to have with the office computer. 23 After seeking legal advice it was decided that Ms Green and another committee member would attend the applicant’s premises to retrieve the laptop, which they did on 24 October 2012, accompanied by a police officer. No advance warning was given to the applicant of their attendance. The police were involved as a precaution because Ms Green was concerned as to how the applicant may react.24

[44] On attendance at the applicant’s premises the laptop and a portable hard drive were retrieved without incident. The applicant stated that he maintained possession of the laptop during suspension because he was not asked to return it, but acknowledged that he had no reason to retain it in view of the respondent’s directive that he not conduct work on behalf of, TEMHCO. 25

[45] Ms Davies, Ms Green and another Committee member examined the contents of the lap top and hard drive that same day. On the basis of what they discovered, the Committee resolved that the applicant would be dismissed, for the reasons set out in paragraph [3] of this decision. The correspondence emailed to the applicant on 25 October 26 referred to evidence retrieved from the laptop and noted the Committee’s view that he had committed serious misconduct.

[46] The letter gave the applicant the opportunity to resign if he did so by noon the following day and subject to his agreement to maintain confidentiality over the reasons for his resignation and not to denigrate TEMHCO in any way. He was also advised that he would be instantly dismissed if he failed to sign his agreement to these conditions by the specified time.

[47] On 26 October, the applicant provided the respondent with a letter from his psychologist, Ms Hope Rigby. The letter stated that she had been seeing the applicant on a regular basis “... and have assessed him as suffering from extremely severe depression and anxiety”. Ms Rigby stated that the applicant was unable to make any decision concerning whether he resign within the time frame stipulated by TEMHCO. 27

[48] It is agreed that the respondent received this letter prior to the 12 noon deadline, but as the applicant had not accepted the resignation conditions the decision to dismiss was implemented and a letter of dismissal was dispatched to the applicant. 28

[49] It is convenient at this point to also note that, in his oral evidence, Mr Johnson alleged that the applicant had engaged in “unsavoury conduct” with G and that this was one of the matters leading to the applicant’s dismissal. 29 There is evidence that the applicant had developed feelings toward G30 however there is no evidence of an affair between them.

[50] Ms Davies, Ms Green and Mr Johnson variously indicated that the applicant was given no opportunity to respond to the issues identified in the letter dated 25 October because they believed the evidence in their possession was conclusive; the applicant was on a final warning; and the Committee had lost confidence in him such that there was nothing that he could say which would change their position.

[51] In relation to the letter from the psychologist, Ms Davies and Ms Green viewed this as a stalling tactic by the applicant and they did not accept that the applicant was incapable of providing a considered response by the deadline set.

[52] The applicant’s evidence in relation to his actions during suspension and the allegations leading to his dismissal is as follows.

Work emails on the laptop in the applicant’s possession

[53] The applicant accepted that he accessed work emails while on suspension. 31

Conducted business on behalf of TEMHCO while on suspension

[54] The applicant conceded that he had email correspondence with a representative of the local print media, Ms Stanbury in relation to an advertisement being placed by TEMHCO concerning mental health week. In an email to Ms Stanbury dated 28 September 2012, 32 the applicant referred to the fact that he was on suspension; that he had to hand back his phone; and that he had no access to the work computer. He advised Ms Stanbury that he wanted to continue to deal with the advertisement and that he wouldn’t be able to review the proof unless it was sent to his personal email address, which he included in the email.

[55] Under cross-examination the applicant conceded that he was in breach of the employer’s directive. It was his view that the work he undertook was in furtherance of the employer’s interests and that if he didn’t do it then it wouldn’t get done. He conceded that he made no attempt to bring the advertisement to the employer’s attention.

The applicant had contact with G while under suspension

[56] The applicant conceded that he sent personal email correspondence to G while he was suspended. 33 He did not regard the employer’s directive not to contact G as lawful and was of the view that “… some-one had to support [G]”.34 As to the provision of the incident reports to G, the applicant eventually accepted that the employer had a legitimate interest in preventing contamination of his and G’s evidence given the nature of the allegations made by K.

The applicant had remote access to the office computer

[57] The evidence is not clear as to what is meant by this particular allegation. It may pertain to an allegation made in the course of the hearing that the applicant changed the password on the office computer, which he denies. 35 He was not questioned about the content of his hard drive.

The submissions

[58] Mr Matarazzo focussed on what he described as the “harsh, unjust and unfair” suspension of the applicant, and submitted that everything that flowed from the suspension was therefore tainted. He contended that the Committee did not properly consider the applicant’s response to K’s complaint, that K’s mental condition was not given proper weight in assessing the allegations and that this was supported by the fact that K withdrew the allegation against G. 36

[59] It was argued that the suspension of the applicant was one act of bad faith among many taken by the Committee. These include calling the police to the applicant’s house on 24 October without notice when the applicant would have returned the laptop had he been requested to do so; ignoring the psychologists letter and the applicant’s psychological condition when taking the decision to dismiss him; denying the applicant the opportunity to respond to the allegations prior to dismissal; and by assuming that the applicant was having an affair with G without any basis in fact.

[60] Mr Matarazzo submitted that the applicant conceded his misjudgement in not immediately advising the Committee of the sexual harassment complaint made by K to the police. He argued that, to the extent that the applicant undertook work on behalf of TEMHCO in the suspension period, his actions were:

● In the interests of the respondent and in furtherance of its legitimate business; and
● For the most part, undertaken after the respondent and applicant had agreed that he would return to work.

[61] As to the applicant’s contact with G during the suspension period, Mr Matarazzo argued that the directive not to contact G could not lawfully apply to contact concerning a personal matter undertaken in a private capacity.

[62] Mr Mahendra addressed the Code and the definition of serious and wilful misconduct in Regulation 1.07 of the Fair Work Regulations 2009, which is in the following terms:

“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.”

[63] Mr Mahendra argued that Reg 1.07(2)(b)(ii) and (3)(c) are particularly relevant in this case. He noted that the applicant held a position of authority within TEMHCO and that his failure to immediately report the matters that were the subject of the incident reports to the Committee was a serious breach of his responsibilities. The Committee was right to stand down the applicant and it had a responsibility to conduct an investigation into K’s complaint.

[64] Mr Mahendra submitted that, while under suspension, the applicant took a deliberate decision not to follow the reasonable directions of his employer, and in doing so jeopardised the viability and reputation of the employer’s business.

[65] As to the process leading to dismissal, Mr Mahendra submitted that the employer’s failure to give the applicant an opportunity to respond to the allegations against him was not fatal to its defence of the claim. He argued that the key issue under the Code was the quality of the investigation undertaken by the respondent and whether it had a belief based on reasonable grounds that the applicant had committed serious and wilful misconduct. Mr Mahendra argued that the Committee had reasonable grounds to believe that the applicant had changed the computer password, impeded the respondent’s access to vital information and disobeyed a reasonable instruction that he was not to conduct business on behalf of TEMHCO or have contact with G.

Consideration

[66] The Code provides as follows:

“Small Business Fair Dismissal Code

Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[67] In Pinawin T/A RoseVi.Hair.Face.Body v Domingo 37 (Pinawin) the Full Bench discussed the requirements of the “Summary dismissal” section of the Code, and stated:

“[29] ... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

[68] The Full Bench in Pinawin also considered the fact that no discussions had taken place with Mr Domingo about the implications of his conduct for his future employment. However it was held that, in the particular circumstances of the matter, the respondent’s conclusion that Mr Domingo’s actions justified dismissal was based on reasonable grounds. The principles outlined in Pinawin have been cited with approval in Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine. 38

[69] I am satisfied that the respondent had a belief on reasonable grounds that the applicant had committed the alleged misconduct. Other than the allegation of remote access to the office computer, the relevant facts of the applicant’s conduct are largely agreed or conceded. That is, that he redirected TEMHCO emails to his laptop, that he conducted business on behalf of TEMHCO while under suspension, that he sought to direct correspondence concerning TEMHCO business to his private email address and that he had contact with G while under suspension.

[70] The main issue between the parties is whether the respondent was correct to characterise the applicant’s actions as serious and wilful misconduct.

[71] The respondent’s directions to the applicant while under suspension were reasonable in the circumstances and he provided no sound basis for disregarding them. The evidence before the FWC indicates that his representation of TEMHCO while under suspension was consistent with his employer’s interests but that does not address the fact of his breach of a lawful directive.

[72] I have not formed a concluded view on whether the applicant deliberately blocked the respondent’s access to emails and computer files on the office computer. I do however consider that the access problems experienced by the Committee were most likely as a result of the applicant redirecting emails to his laptop and backing up the computer files on his hard drive, given the temporal connection between these events. The applicant’s actions indicate a level of premeditation in his disregard of the employer’s directives. The effect of his actions was to undermine the employer’s ability to conduct its business and protect its interests.

[73] It appears that the applicant lost sight of his professional responsibilities as Manager from at least August 2012 when he dealt inappropriately with the professional boundaries issues raised by G. At the hearing he still believed that he had been dealt with harshly by the Committee when they suspended him and then issued a final warning. His failure to appreciate the significance of his actions in the context of TEMHCO’s responsibilities as an employer and as an organisation facing a complaint from a vulnerable person it is supposed to be assisting, is concerning.

[74] The procedure adopted by the employer in terminating the employment without providing an opportunity for the applicant to respond to the allegations cannot be condoned, especially where, as in this case, no sound reason has been advanced as to why such an opportunity was denied. In many, if not most cases such a fundamental denial of natural justice would have serious consequences for an employer’s defence of an unfair dismissal claim. However in this case the investigation conducted by the employer was thorough and the information that the Committee obtained from the applicant’s lap top was compelling. On the basis of this information and the fact that the applicant was on a final warning, I am satisfied that the employer’s loss of confidence in his continued employment was soundly based. There was nothing that the applicant could have put which would have restored the respondent’s confidence in his ability to undertake the role of Manager.

[75] The applicant was effectively terminated on 25 October 2012 when he was given the opportunity to resign under threat of dismissal. The letter provided by the applicant’s psychologist on 26 October 2012 indicated that the applicant was unable to make a decision whether to resign or not. It is arguable that in the circumstances the employer should have provided more time, however the applicant’s fate was already sealed by this stage. TEMHCO’s denial of an extension of time for the applicant to consider whether to resign or not, is not a matter relevant to compliance with the Code.

[76] I am satisfied that the applicant’s conduct constituted behaviour that was inconsistent with the continuation of the contract of employment and that the respondent has complied with the Small Business Fair Dismissal Code. The application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

L Matarazzo, Agent for the applicant

D Mahendra, of counsel, with permission for the respondent

Hearing details:

2013

Darwin

April 10, 11

 1   Ex R2 paras 6 and 7

 2   Ex A2, Appendix I

 3   This was confirmed in Direction no. 6 issued to the parties on 26 February 2013.

 4   Ex R2

 5   [2012] FWAFB 1359

 6   Mr Ward also appeared in accordance with an order of the FWC that he attend the proceedings

 7   Ex A1

 8   MFI A3

 9   PN1955

 10   Minutes of meeting 27 September 2012, Ex R2 Annexure E

 11   Ex A2. Annexure A

 12   PN737, 1815,1888

 13   Ex R2, Annexure F

 14   Attachment to Ex A6.

 15   Ex A2, Appendix G

 16   Ex A2, Appendix F (undated)

 17   Ex R2, Annexure K

 18   Ex R2, Annexure L

 19   PN1892

 20   Ex R2, para 23

 21   PN1738, 1768

 22   PN1881, 1770

 23   PN1770

 24   PN1771, 1960

 25   PN950, 951, 957.

 26   Ex A2, Appendix I

 27   Ex A2, Appendix J

 28   Ex A2, Appendix K

 29   PN1648, 1675

 30   Ex R3

 31   PN1108

 32   Ex R1

 33   PN725, Ex R3

 34   PN896-902

 35   PN1107

 36   K withdrew his complaint on 17 October 2012, PN1827

 37   [2012] FWAFB 1359

 38   [2013] FWCFB 1943

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