Mr Ronald Anderson v Thiess Pty Ltd

[2014] FWC 6568

[2014] FWC 6568 [Note: An appeal pursuant to s.604 ( C2014/6722 was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 30 January 2015 [[2015] FWCFB 478] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Ronald Anderson
v
Thiess Pty Ltd
(U2013/11148)

DEPUTY PRESIDENT ASBURY BRISBANE, 19 SEPTEMBER 2014

Application for unfair dismissal remedy - Arbitration.

OVERVIEW

[1] Ronald James Anderson applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Thiess Pty Ltd (Thiess). Mr Anderson was employed by Thiess at Burton Downs from 30 November 2011 until his dismissal on 17 June 2013. Mr Anderson was summarily dismissed on that date on the ground of serious misconduct.

[2] It is not in dispute that on 17 June 2013, Mr Anderson sent an email from his Thiess email address, which he described as an email “regarding Muslim radicals protesting”. 1 It is also not in dispute that the email comprised a covering statement making assertions about Muslims and some images which were attached. The exact details of the attachments to the email are in dispute, and as the hearing unfolded, it became apparent that some of the managers of Thiess who were involved in the decision to dismiss Mr Anderson had not seen the attachments to the email before making that decision and had based the decision to dismiss Mr Anderson on the covering email only.

[3] Thiess asserts that the email was a serious breach of Company procedures around the acceptable use of email involving Mr Anderson’s use of Thiess’ email system to broadcast an email that was “offensive, inappropriate, and potentially discriminatory and vilifying ...” Thiess further asserts that Mr Anderson had previously been warned about his unacceptable use of its email systems to broadcast non-work related emails and that his conduct in sending the email in question was of such a serious nature that he has destroyed the relationship of trust and confidence that must exist between an employer and an employee.

[4] Mr Anderson claims that his dismissal was unfair on the grounds that he was unaware that forwarding the email would be grounds for his dismissal and that had he been made aware of this he would not have sent the email. Mr Anderson asserts that the email he sent was not offensive and expressed no regret with respect to its contents either in the process which lead to his dismissal or in these proceedings.

[5] Mr Anderson also asserts that he was not the author of the email and that it contained material that was already in the public domain. Mr Anderson points to his lengthy period of otherwise unblemished service with Thiess and maintains that a warning would have been an appropriate penalty. Mr Anderson states that he lacks computer skills and was not trained in the appropriate use of Thiess’ email systems and that other employees including his supervisor, sent similar emails to him using Thiess email systems. Further Mr Anderson states that his dismissal is unfair because he is 65 years of age and will have significant difficulty obtaining other employment. He also asserts that his dismissal involves discrimination on the grounds of age. Mr Anderson seeks reinstatement.

[6] The application was made on 4 July 2013, within the time required in s.394 (2) of the Act. Mr Anderson is a person protected from unfair dismissal as defined in s.382 of the Act. Notwithstanding that Mr Anderson’s annual income exceeds the high income threshold, it is not in dispute that an enterprise agreement applies in relation to his employment. Thiess is not a small business and the dismissal was not a redundancy. The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, having taken into account the matters set out in s.399 of the Act and the views of the parties. Permission was granted for Thiess to be legally represented on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently taking into account its complexity. I also had regard to the fact that Thiess sought to be represented by Ms Clare Brattey of Herbert Smith Freehills who was seconded to Thiess during its preparation for the case and was involved in preparing submissions and statements of evidence.

[7] Mr Anderson gave evidence on his own behalf. Evidence on behalf of Thiess was given by:

● Rodney Stuart Nichols, Maintenance Manager;
● Gus Jorquera, Project General Manager; and
● Danny McCarthy, General Manager.

[8] By asserting that the email he sent was not offensive, Mr Anderson has put into dispute whether he did engage in serious misconduct such that there was a valid reason for his dismissal. If it is found that the email did constitute a valid reason for Mr Anderson’s dismissal, it is necessary to consider whether that dismissal was otherwise unfair on the grounds that it was harsh unjust and unreasonable when the criteria in s.387 are considered.

LEGISLATION

[9] In deciding whether a dismissal is harsh, unjust or unreasonable, the Commission must take into account procedural and substantive matters set out in s.387 of the Act as follows:

(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) and;
(b) Whether the person was notified of that reason; and
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
(e) If the dismissal related to unsatisfactory performance – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) Any other matters the Commission considers relevant.

[10] The Commission is obliged to make a finding about whether or not there was a valid reason for dismissal. 2 A valid reason for dismissal is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”3 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts4, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.5

[11] In matters involving misconduct, the Commission must look at the conduct of the dismissed person and determine on the balance of probabilities what the conduct was and whether it took place. 6

[12] In defending an unfair dismissal application, an employer is entitled to rely on facts that existed at the time of the dismissal, and were not known to the employer at the time the dismissal was effected. 7 In determining whether a dismissal is unfair:

“It is not the [Commission’s] function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...” 8

[13] The matters in s.387 go to both substantive and procedural and substantive fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 9

[14] There is a distinction in the provisions of the Act between “serious misconduct” and “misconduct”. The former term is defined and the latter is not. The term “serious misconduct” is defined in s.12 of the Act and Regulation 1.07 as follows:

“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.”

[15] Regard may be had to this definition to decide whether there is a valid reason for the dismissal of an employee who is alleged to have engaged in serious misconduct. In general terms, misconduct is wrongful conduct. To be properly described as “serious”, misconduct must be: “significantly worse than negligence and serious in its culpable quality as misconduct, as distinct from the results”. 10

[16] Serious misconduct is judged on an objective basis, and it is therefore not necessary that the employee should intend to do wrong. Wilful misconduct carries the additional connotation of intention, or a deliberately reckless course of misconduct, with knowledge that it is wrong. 11 Regulation 1.07 does not require that misconduct be wilful before it is serious misconduct, but provides that serious misconduct includes wilful or deliberate behaviour.

[17] When the matters in s.387 are weighed for the purposes of considering whether a particular dismissal was harsh, unjust or unreasonable, it may be that where the employer demonstrates that the employee engaged in serious misconduct, procedural deficiencies will be outweighed so that on balance, the dismissal is not unfair. An employee who engages in an act of misconduct may also be found to have been unfairly dismissed because the misconduct was not sufficiently serious to outweigh deficiencies in procedural fairness or because of other extenuating circumstances particular to the dismissed employee. Alternatively an act of misconduct which, considered in isolation, would not be a valid reason for dismissal, may become so, when considered in the context of previous acts of misconduct about which the employee had been warned.

[18] The approach of the Commission in cases involving use of an employer’s electronic communication system to store and transmit inappropriate images was set out by a Full Bench of the Commission in Wake v Queensland Rail. 12 In that case, the Full Bench stated that:

“The employer’s right to exercise control over its own information technology systems is undoubted. If that right is exercised unfairly or unlawfully, however, the employee concerned may have a remedy under the Act.”

[19] The Full Bench in that case also went on to reject the proposition that a long term employee with an otherwise unblemished service record is immune from termination for breaching an employer’s policies with respect to use of the employer’s information technology unless guilty of breaches involving large amounts of hard core pornography, holding that an employer is entitled to take a harder line than that. In Wake the Full Bench noted that the employer had a firm and well-publicised policy prohibiting the use of its electronic communication system to store or transmit sexually-related, pornographic or violent material, and had gone to great lengths to alert employees to the policy and to warn them that breaches would result in dismissal.

[20] The Full Bench concluded that it is in the public interest, subject to considerations of fairness, that the Commission’s decisions should support employers who are striving to stop inappropriate email traffic, holding that:

“...The use of company electronic communications systems for storage and transmission of images containing sexually-related, pornographic and violent material is a serious and socially important issue. The appellant, rightly in our view, made sustained efforts over a number of years to make employees aware of its policy and the consequences of breaching the policy. Despite those efforts and repeated warnings the employee breached the policy in a substantial way and on a number of occasions. While appreciating that loss of employment is a bitter blow, we see no proper basis on which the Commission might properly intervene to reverse the employer’s decision in this case.”

CONSIDERATION OF S.387 CRITERIA

Was there a valid reason for Mr Anderson’s dismissal?

[21] Thiess has established a Code of Conduct which includes a statement that all employees will support workplace diversity, respect the values of others and not tolerate racial discrimination, workplace harassment, bullying or sexual misconduct. The Code of conduct also includes a commitment to use Thiess’ assets only for company purposes and to encourage employees to speak against and report unethical behaviour. Thiess also has a Diversity Policy which has as its objectives the development of a diverse workforce that represents a wide range of cultures in the community and to create a workplace environment where all individuals feel respected regardless of age, gender or ethnicity. 13

[22] In addition to giving evidence about the prominence with which these documents are displayed in the workplace, Mr Nichols also gave evidence that when Mr Anderson became a Trainer/Assessor and was given access to Thiess’ email systems, he should have gone through familiarisation with and acceptance of the Company’s information technology policies on the acceptable use of computers. Further, every time a user of the Thiess system logs on, a pop up box appears and there is a requirement to tick it to acknowledge that the policies have been read and understood by the user. The text in the pop up box is as follows:

“Important Notice

You are bound by the TMS Procedure for Acceptable Use of Information System (TM-ICT-PR001) when using Thiess computer systems. If you are unaware of this procedure, then request a copy of it from your Manager or Supervisor. In accordance with TM-ICT-PR001, you are advised that electronic documents and web pages visited may be monitored for inappropriate use. Be careful when using email. Your emails are automatically centrally archived and may be retrieved and viewed by others. Consider using letters or other hard copy for important communications. Important emails should be filed in the project or other appropriate filing system.” 14

[23] Mr Jorquera and Mr McCarthy gave evidence of the extensive training that had been provided to employees of Thiess at Burton Downs in relation to its workplace code of conduct and acceptable behaviour. Mr Jorquera said that there had been a number of incidents at Burton Downs in the Company’s mining operations where some employees had complained of experiencing harassment and victimisation. Thiess responded by educating the whole workforce through toolbox talks conducted over a three to four week period to ensure that all mining, CHPB and maintenance crews were spoken to. Mr Jorquera considered that with all of the presentations setting expectations around discrimination, bullying, harassment and code of conduct, everyone on site was aware of what would and would not be tolerated.

[24] Under cross-examination, Mr Jorquera agreed that the presentations were done on a crew by crew basis and there had been a sign off sheet to ensure that attendance was recorded. Mr Jorquera maintained that he was informed of any employee who had missed the training and had ensured that these persons attended a session. Mr Jorquera further maintained that he was not informed that Mr Anderson had not attended. Mr Jorquera also said in response to a question from the Commission, that employees who were given access to computers also signed off on a document to indicate that they had been trained in the correct use of computers and internet systems.

[25] No documentation regarding Mr Anderson’s attendance at this training or recording that he had been inducted or told about the appropriate use of Thiess email systems was produced. There was no explanation in relation to why such a training record was not produced. Notwithstanding this Mr Jorquera and Mr McCarthy said that regardless of whether or not Mr Anderson attended one of the sessions, he had worked for Thiess for long enough to know what conduct was and was not acceptable.

[26] Mr Anderson said that after working for ten years as a diesel fitter in the workshop and field at Burton Downs he was approached and requested by management of Thiess to take on the position of Workshop Trainer/Assessor, and commenced that role in July 2011. Mr Anderson had no previous full time experience of working in such a role and when he started to perform the role was given no facilities to do so. In particular he had no phone, computer, filing cabinets or work desk and set about working in the crib hut, using crib tables. Later a computer and work desk was provided to Mr Anderson and he was eventually given a workstation back at the workshop.

[27] Mr Anderson maintained that in this time he was not given any induction into the protocols of using a computer or forwarding emails on site. Mr Anderson further maintained that he was not trained in any of the policies or procedures relating to the Code of Conduct or internet usage. He also stated that he could not remember seeing policies and procedures displayed in the workplace and had not noted the pop up box when he logged into the Thiess electronic document system. Mr Anderson also said in relation to policies and procedures that “we get bombarded with so much stuff...it all just blurs after a while.” 15

[28] As previously noted, it is not in dispute that on 17 June 2013, Mr Anderson sent an email from his Thiess email address. The subject matter of the email is “World War 3 – PASS IT ON”. The email was sent by Mr Anderson at 7.37 am on that date to some 43 persons including 27 with Thiess email addresses, two with email addresses from another company and 14 whose email addresses appear to be private addresses.

[29] The email comprises a covering paragraph and a series of attachments. The evidence about precisely what was attached to the covering email is unsatisfactory. Mr Anderson described the email in his Form F2 Application for an unfair dismissal remedy as “an email regarding Muslim radicals protesting”. Mr Anderson also made reference in his outline of submissions to the email containing photographs.

[30] Thiess’ Form F3 Response to Mr Anderson’s application and the witness statements and submission filed by Thiess in these proceedings, did not refer to photographs or other material being attached to the email and set out only a paragraph of text. It was not until Mr Anderson was cross-examining Mr McCarthy - the last witness for Thiess – that it became apparent that the paragraph was in a covering email that also contained a number of attachments. Mr Anderson asked Mr McCarthy a series of questions about images which were attached to the email which he described in his questions to Mr McCarthy as: “photographs of Muslims with signs saying ‘behead the infidels’ and ‘death to those who insult the prophet’.” Mr McCarthy said that he had seen the covering email but did not recall seeing the photographs.

[31] Mr Anderson did not accept that he should have highlighted the fact that the email as it was put into evidence by Thiess was not the full version that he had sent on 17 June 2013. Ms Brattey on behalf of Thiess indicated that until Mr Anderson’s cross examination of Mr Jorquera, she was not aware that the email did contain any images or attachments.

[32] After giving both parties an opportunity to comment on the appropriate course of action, I decided to receive evidence about the full contents of the email. Arrangements were made for the entire email to be recovered from the Thiess email system and forwarded to Ms Brattey so that it could be viewed on her laptop computer. Mr Anderson was recalled and shown each image and document and asked to identify those which had been attached to the email that he sent on 17 June. Mr Anderson identified some photographic images that were attached to the email but did not identify a number of other documents that were also attached. A hard copy of the covering email and attached material was forwarded to the Commission on 30 June 2014 and forms part of the record of the hearing.

[33] Mr Jorquera who decided to dismiss Mr Anderson was recalled and also confirmed that he had only seen the covering email and had not seen photographs and other material attached to it. Mr Jorquera also said that now that he had viewed the photographs and other attached material the email was more offensive than he had originally believed, and that viewing it before deciding that Mr Anderson should be dismissed, would only have confirmed that decision. Mr McCarthy was also shown the attached images and said he had not previously seen them and that viewing them now only reinforced his view that the email was offensive.

[34] I turn now to the email. The covering text of the email is highly offensive to persons of the Muslim faith and I do not intend to give it any air-play by setting it out in this Decision. It is sufficient to state that on any objective view, the email vilifies persons of the Muslim faith and makes a number of assertions intended to incite readers to contact politicians to take action, the nature of which is not specified.

[35] Generally, the attachments to the email are also highly offensive and even if I accept that Mr Anderson genuinely believed that he only forwarded some of those attachments, the attachments that he agrees that he forwarded vilify persons of the Muslim faith. I am also of the view that the attachments are generally offensive to persons who do not wish to have the views expressed in the email foisted on them. It is necessary to note, due to the prominence given to the matter by Mr Anderson, that some of the attachments to the email are photographs depicting persons holding signs that make reference to beheading.

[36] Clearly the email did cause offence, because one of the recipients escalated the matter by reporting it to Mr Nichols. Mr Nichols viewed the email to assess it and then immediately took steps to have it blocked as a matter of urgency before reporting the matter to Mr Jorquera and Thiess’ Human Resources Manager.

[37] Mr McCarthy and Mr Jorquera said that Thiess has many employees who practice the Muslim faith. Further the Company has very close links with Indonesia where the Muslim faith is practiced. Such an email could be perceived as Thiess’ view and cause serious reputational damage. Mr Jorquera said that such an email and the views expressed in it are also contrary to Thiess’ Workplace Conduct Policy which provides that Thiess is committed to ensuring all forms of inappropriate behaviour are eliminated, including harassment, discrimination, victimisation and bullying. Anyone who has access to the Thiess electronic information system can access these policies.

[38] Mr Jorquera also said that employees need to ensure that their behaviour is not discriminatory on the basis of criteria such as religious belief or social origin and that they do not send offensive material by email. Thiess’ values are: trust, passion, excellence and innovation and the culture is about looking after colleagues and leading by example. While everyone has private views on different matters, those views cannot be shared through work related equipment.

[39] Mr Anderson displayed no awareness about the offensiveness of the email or the impact that it could have had on his work colleagues or Thiess’ reputation generally. In his evidence to the Commission, Mr Anderson maintained that he had not been told of any particular person he had offended and had not been asked to apologise. Mr Anderson further maintained that the email was offensive to him because he is an infidel and radical Muslims depicted in the images attached to the email behead him.

[40] Mr Anderson also said that if he had offended a Muslim who was a rational normal person he would be sorry, but that he had no qualms about offending someone who wants to cut his head off and would not apologise to such a person. Further, Mr Anderson maintained that generally, Muslims would not be offended by the email if they were not radical and that radical Muslims would not be offended because they are the ones carrying the signs calling for infidels to be beheaded.

[41] Under cross-examination and in his questioning of witnesses, Mr Anderson took issue with assertions that the email he sent was racist put various propositions to witnesses for Thiess to the effect anti-Muslim views are not racist because Islam is a Religion and not a race. Essentially these points constituted Mr Anderson splitting hairs and did not assist his case. Rather his insistence on debating such issues only served to illustrate his lack of understanding about acceptable conduct in a modern and multicultural workplace and in the context of working for an employer with international operations. It is also clear that Mr Anderson does not consider that persons other than those who are Muslims could be offended by his email. In this respect, he displayed a complete lack of understanding that others may be offended by religious intolerance in circumstances where they do not practice the religion subject of the offending email, or any religion.

[42] Mr Anderson tendered evidence of other inappropriate emails that he contended were circulated in the workplace. In particular Mr Anderson stressed that some of these emails were sent by Thiess supervisors and maintained that as a result of receiving these emails, he was “ushered into an emailing culture that I thought was the norm.” The emails range from being amusing to offensive and inappropriate. They can generally be described as emails containing sexual innuendo, or derogatory of women and persons with particular physical characteristics.

[43] Thiess’ witnesses were shown these emails during cross-examination. Mr Nichols said that he was not included in the distribution of the emails. In response to the proposition that there was a culture of sending such emails, Mr Nichols said that he would not describe it as rampant but there was the odd joke email sent. Mr McCarthy said that he was not aware of the emails being sent and that if they were brought to his attention he would have acted on the basis that no-one is permitted to send offensive and inappropriate emails using Thiess’ email system. Mr McCarthy also said that he has sacked employees in the past for sending such emails.

[44] Mr McCarthy did not accept that there was a culture of sending inappropriate emails and pointed to the fact that the emails he was shown were sent in October 2011. In response to the proposition that such emails were the norm, Mr McCarthy had the following exchange with Mr Anderson during cross-examination:

“...I think if you’re trying to say that because everyone else did it it’s okay, then that’s pretty lame to be honest.

If you - - -?---So my role in the organisation as a GM is to make sure that we uphold the process, policy, protocol and procedure.”

At all times?---At all times. So as soon as something is brought to my attention subject to me being aware of it like the email that was forwarded to me which I acted on within about three minutes, things get shut down. So what I don’t know about I can’t act on. But let me assure you if I do know about it people - - -”

[45] In response to the proposition put to him by Mr Anderson that other employees could send inappropriate emails but only Mr Anderson was dismissed, Mr McCarthy said: “You got caught”. 16

[46] I accept that Thiess has extensive policies and procedures in relation to acceptable conduct in the workplace. I also accept that Thiess employs a multicultural and diverse workforce and endeavours to do so in a way that is free from discrimination and harassment on grounds which include religious belief, and that Thiess operates in a number of countries where a variety of religions are practiced. Further, I accept that for an employee of Thiess to send an email that vilifies persons who practice a particular religion would breach these policies and would create a real risk of serious reputational damage to Thiess.

[47] I do not accept that Mr Anderson was as oblivious to the policies and procedures relating to workplace conduct and an appropriate use of email as he stated in his evidence. It is improbable that Mr Anderson could have been operating a computer which did not have a pop up box when he logged in, in circumstances where computers in Thiess’ workplaces generally do display such a box. I also think it improbable that Mr Anderson can have had no knowledge of the policies and procedures in the workplace with respect to appropriate conduct. I agree with the comment of Mr Jorquera to the effect that Mr Anderson had been around long enough and had enough exposure to Thiess’ policies to know what conduct was and was not acceptable. It is more likely that Mr Anderson simply viewed information about these policies and procedures as bombarding him and tuned out.

[48] It is apparent that in the course of Mr Anderson’s employment, there were other employees sending emails that breached Thiess’ policy. However, I accept the evidence of Mr McCarthy that he was not aware of those emails and I am satisfied that had he been made aware of the emails the offenders would have been dealt with. It is not sufficient to justify a claim of different treatment for the same misconduct, to simply establish that other employees who also engaged in misconduct were not dismissed. What is required to justify a claim of differential and unequal treatment, is that a dismissed employee establish that the employer was aware of misconduct on the part of other employees and failed to apply the same policy and procedure or took disproportionate action against one employee in comparison with the action taken against others for the same misconduct.

[49] This is not such a case. There is no evidence that Mr McCarthy or Mr Jorquera were aware of the other inappropriate emails and condoned the sending of those emails so that it could be said that Mr Anderson had been treated differently to other employees who engaged in the same misconduct.

[50] The fact that Mr McCarthy and Mr Jorquera decided to dismiss Mr Anderson in circumstances where they did not have complete information about the email he had sent, does not in the circumstances of this case, render the reason for the dismissal invalid. The email that Mr Anderson sent contained attachments that made it even more inappropriate and offensive than was appreciated by the managers who made the decision to dismiss Mr Anderson and had they known about the full extent of the email at the point the decision was made, the outcome would not have been different.

[51] It is also the case that despite being given an opportunity in the hearing of his unfair dismissal application to indicate his regret for any offense or distress the email may have caused to any person, or that he understood the potential for the email to damage Thiess’ reputation, Mr Anderson maintained a belligerent and intransigent attitude about the email and its impact. Quite simply, Mr Anderson genuinely holds the views expressed in the email, and his only regret is that he was dismissed for sending it.

[52] Australia is a free country. Australians are free to practice the religion of their choice and to hold whatever views they wish to hold. There is no single religion that has a monopoly on perpetrating acts that members of the community view as violent and evil. Regrettably there are people who use their freedom to disseminate information that incites violence and intolerance against others. Mr Anderson is free to hold whatever views he wishes to hold, however misinformed they might be. He is free to receive and disseminate material expressing those views, provided that he does not break any law in doing so.

[53] What Mr Anderson is not free to do is to receive and disseminate such material on Thiess’ electronic information systems while he is on Thiess’ time. The email Mr Anderson received and forwarded incites intolerance and vilifies others on the basis of their religious belief. It had the potential to offend others and caused offence to at least one person, who reported it to a more senior manager.

[54] The email had real potential to damage Thiess’ reputation in Australia and internationally. Thiess has policies and procedures that prohibit the sending of such emails and has taken reasonable steps to promulgate those policies in the workplace. It is no answer to the allegation of misconduct that the images forwarded by Mr Anderson are seen on television and other forms of media. Thiess is entitled to maintain a workplace where such material is not disseminated on its computer systems. I am satisfied and find that in all of the circumstances there was a valid reason for Mr Anderson’s dismissal.

Was Mr Anderson notified of the reason for his dismissal?

[55] Mr Anderson was called into a meeting on 17 June 2013 and shown the email. Mr Anderson was informed that his conduct in sending the email did not align with Thiess’ Code of Conduct and that an investigation process known as an Accountability and Personal Conduct process would be implemented. Mr Anderson was stood down and the APC process was undertaken between approximately 12.05 pm and 2.30 pm. Following that process Mr Anderson was informed that he was to be dismissed and was handed a letter informing him of this fact. The dismissal letter stated that Mr Anderson was dismissed as a result of a serious breach of Thiess’ policy, code of conduct and values on 17 June 2013. I am satisfied and find that Mr Anderson was notified of the reason for his dismissal.

Was Mr Anderson given an opportunity to respond to the reason for his dismissal?

[56] Mr Nichols tendered notes of the meeting with Mr Anderson on 17 June 2013 at which the email he had sent earlier that day was discussed. Those notes indicate that Mr Anderson was asked why he had sent the email and was told that it had caused some serious concern throughout Thiess. Mr Anderson initially said that the email was meant to be a joke. It became apparent that Mr Anderson was referring to an email that was described as a blonde joke that he had sent earlier that morning.

[57] Mr Anderson was shown the email in question and said: “oh that one”. Mr Anderson was then stood down to allow the APC process to be conducted. The process was completed at around 2.30 pm and it was decided that Mr Anderson would be dismissed. Mr Anderson was called to a further meeting and was asked for an explanation as to why his employment should not be terminated. Mr Anderson stated that he was a good worker and had never taken a sick day. Mr Anderson requested a final written warning in lieu of dismissal. I am satisfied and find that Mr Anderson was given an opportunity to respond to the reason for his dismissal.

Was Mr Anderson unreasonably refused a support person?

[58] Mr Anderson states that he was offered a support person. Mr Anderson also states that he attended the meeting alone because the support person he requested to attend with him declined. Mr Anderson did not seek to defer the meeting to enable him to seek assistance from another person. I am satisfied and find that Mr Anderson was not unreasonably refused a support person to assist him in discussions relating to his dismissal.

Was Mr Anderson warned about any unsatisfactory performance before the dismissal?

[59] Mr Anderson was dismissed for misconduct and the question of whether he was warned is not strictly relevant. However, Mr Anderson states that on a previous occasion, a number of months before his dismissal, Mr Nichols told him to “back off sending those emails about Muslims”. Mr Anderson said that he took this statement to mean that Mr Nichols did not want Mr Anderson to send the emails to him, and subsequently he did not send any more of those emails to Mr Nichols.

[60] Mr Nichols said that on 24 March 2014, he received an email from the Maintenance Superintendent to whom Mr Anderson reported, stating that he would like to temporarily suspend Mr Anderson’s email account due to the large number of non-work related emails Mr Anderson was sending to co-workers, resulting in reduced productivity. 17 The Maintenance Superintendent also spoke personally to Mr Nichols about this matter.

[61] Mr Nichols said that he went to Mr Anderson’s desk and told him that he needed to stop sending non-work related emails. Mr Nichols said that Mr Anderson responded by saying: “Yep, righto” and he thought that the message had gotten through because he stopped receiving such emails from Mr Anderson. Mr Nichols said that he did not refer specifically to emails about Muslims. Mr Nichols also said that the discussion was not a formal disciplinary process. Under cross-examination, Mr Nichols agreed that Mr Anderson may not have picked up on his message but maintained that he did not specifically refer to emails about Muslims.

[62] To the extent that the issue of whether a warning was given is relevant in cases of misconduct, I am not satisfied that Mr Anderson was warned about sending an email of the kind that he sent, in such a way that he could reasonably have understood that his job would be in jeopardy if the conduct was repeated.

Impact of size of Thiess’ enterprise and human resource management expertise

[63] Thiess is a large employer with access to dedicated human resource management specialists and expertise and these factors did not impact on the procedures followed in effecting the dismissal.

Other relevant matters

[64] In my view, there are other matters relevant to the consideration of whether Mr Anderson’s dismissal was unfair. Mr Anderson is 65 years of age. He has worked for Thiess for over 12 years. Prior to sending the email that resulted in his dismissal, Mr Anderson has had no issues raised with respect to his conduct, capacity or work performance. Mr Anderson was employed as a diesel fitter, but when requested by Thiess took on a role as a Trainer/Assessor, involving additional responsibility. Mr Nichols, who was Mr Anderson’s supervisor, said that there has never been any concerns with Mr Anderson’s work ethic and agreed that when Mr Anderson was given tasks to undertake he got on with the job.

[65] It appears that Mr Anderson was given little in the way of support or assistance when he took on the role of Trainer/Assessor and that he had to work out for himself how to undertake the various tasks required of him. Although I accept that Mr Anderson cannot have been oblivious to Thiess’ Code of Conduct and policies relating to acceptable email use, Thiess is unable to produce any documentation to establish that Mr Anderson was trained and inducted with respect to those policies. This is surprising given Mr Jorquera’s evidence that there were specific briefings about the Code of Conduct where every employee at Burton Downs was required to sign an attendance record and that before being given computer access all employees are required to undergo a briefing about appropriate use of email and the internet and to sign a record of accepting those conditions.

[66] It is also the case that by March 2013, the person to whom Mr Anderson reported had such a degree of concern with his use of Thiess’ email system for non-work related purposes, that he reported the matter to Mr Nichol. Mr Nichol’s response was to have an informal discussion with Mr Anderson about the matter rather than to issue him with a formal counselling record or give him a warning.

[67] My observation of Mr Anderson is that he sees and hears only that which is consistent with his own views and that to get a message to him requires a direct approach. On his own evidence, Mr Anderson was told by Mr Nichols to stop sending emails about Muslims. This indicates that the email which gave rise to his dismissal was not the first such email that he had sent. Mr Nichols maintains that he made no specific mention of a particular type of email other than to say that Mr Anderson should stop sending non-work related emails.

[68] I accept that Mr Anderson did not appreciate the meaning of what Mr Nichols was telling him about the Thiess email system, and that the inadequacy of the manner in which Mr Nichols delivered an important message about a matter that would ultimately lead to Mr Anderson’s dismissal, contributed significantly to Mr Anderson’s failure to appreciate what was required of him. Had Mr Nichols dealt appropriately with this issue at the time, there may have been no reason for Mr Anderson to be dismissed. In this regard, I am of the view that there is some likelihood that Mr Anderson would have complied with any direction he was given about not sending non-work related emails, although he may have argued the point and raised the emails that others had sent him and which he tendered in these proceedings.

[69] It is also relevant that Mr Nichols, who originally conducted the investigation into Mr Anderson’s conduct in sending the email, applied the APC process and determined that Mr Anderson should be issued with a final warning. Mr Nichols’ assessment of Mr Anderson’s conduct was that it was wrongful (rather than wilful); that a procedure/instruction was ignored; there were no mitigating circumstances; the severity or potential was medium and the standard of direction/instruction provided to Mr Anderson was clear, concise and consistent. These results lead to Mr Nichols rating the incident as 16 with a result that it was not within the range that would lead to termination or suspension.

[70] Mr Nichols’ assessment was over-ridden by Thiess’ Human Resources Manager, Mr Jorquera and Mr McCarthy. Mr Jorquera said that he had a discussion about the email with Mr McCarthy while Mr Nichols was conducting the APC process. Both Mr Jorquera and Mr McCarthy considered that the situation was very serious and that as Mr Anderson had previously been warned about sending non-work related emails it was appropriate that his employment be terminated. Mr Jorquera, as he is entitled to do under the APC process, reviewed the score that Mr Nichols had given and determined that the conduct of Mr Anderson was wilful rather than wrongful. As a result of this assessment, the score applied to Mr Anderson’s conduct was increased to 17 so that it was within the range that brought the outcomes of suspension or dismissal into play.

[71] The evidence of Mr McCarthy and Mr Jorquera is that they decided to review the APC process conducted by Mr Nichols on the basis of their view that Mr Anderson had previously been warned about sending non-work related emails. For the reasons set out above, this view was wrong, and Mr Anderson had not been warned about this matter in a way that could have provided a proper basis for the conclusion reached by Mr Jorquera and Mr McCarthy that he had offended again after being warned.

[72] I am also of the view that the relatively short time in which the investigation was conducted and the decision taken to dismiss Mr Anderson, resulted in a failure by those who made the decision to take all relevant matters into account. Mr Anderson was stood down at approximately 12.05 pm and by 2.30 pm the process had been completed and a decision taken to dismiss him. While I accept that Mr McCarthy was entitled to take a very serious view of the email sent by Mr Anderson, there was no immediate requirement to dismiss Mr Anderson or to truncate the investigation process. The email had been stopped or blocked by Thiess’ IT specialists. Mr Anderson was confined to camp and there is no indication that there was any danger he would repeat the conduct while an investigation was being conducted. Further, if there was such a concern, steps could have been taken to prevent him from doing so.

[73] Thiess is a large employer with significant human resource management expertise. In the circumstances, I would have expected a more thorough investigation. There was a failure to identify the exact contents of the email. A view was formed that Mr Anderson had been warned about such conduct in the past, in circumstances where a proper investigation would have revealed that this conclusion was questionable.

[74] I am also of the view that had more time been taken to discuss the matter with Mr Anderson, an outcome might have been achieved where he accepted that the contents of the email were inappropriate in the Thiess work environment and apologised for any offence he may have caused. This conclusion is reached with some difficulty given Mr Anderson’s belligerent and intransigent attitude about the contents of the email in the hearing of this case. However, I cannot rule out that with a proper discussion about the matter, a position could have been reached where Mr Anderson indicated his regret for sending the email and its potential impact to the extent where he would not have been dismissed.

[75] Further, I note that there does not appear to have been any consideration of a penalty less than dismissal, in circumstances where the APC process also provides for suspension. It is also the case that Mr Anderson was summarily dismissed and did not receive any payment in lieu of notice. As previously stated, Mr Anderson is 65 years of age and the prospect that he will obtain other employment commensurate to that he had with Thiess is extremely limited.

[76] On balance, notwithstanding that there was a valid reason for Mr Anderson’s dismissal, I am satisfied that the dismissal was unfair on the grounds that it was harsh and unreasonable. The dismissal was harsh because of its consequences for the personal and economic situation of Mr Anderson. It was unreasonable because the conclusion that the misconduct engaged in by Mr Anderson was wilful on the grounds that he had been previously warned about it, was not reasonably open on the material before the employer.

[77] I do not find that the dismissal was harsh. It was not disproportionate to the gravity of the misconduct. The misconduct was extremely serious and had significant potential to damage Thiess’ reputation. Mr Anderson’s misconduct did provide a valid reason for his dismissal and I do not find that the dismissal was unjust.

REMEDY

[78] As required by s.390 of the Act, I am satisfied that Mr Anderson was protected from unfair dismissal and that he has been unfairly dismissed. Mr Anderson should have a remedy for his unfair dismissal. Mr Anderson seeks reinstatement. I am satisfied that reinstatement is not an appropriate remedy in all of the circumstances of this case for the following reasons.

[79] There was a valid reason for Mr Anderson’s dismissal. Mr Anderson sent an entirely inappropriate email vilifying persons on the basis of religious belief. The email caused offence to at least one person and had the potential to offend others regardless of whether or not they practice any particular religion. The email also had the potential to cause reputational damage to Thiess in terms of its position as an employer of a multicultural workforce and its international operations.

[80] Mr Jorquera submits that to reinstate Mr Anderson will send a message that this kind of email is acceptable. Mr McCarthy states that it is not appropriate that Mr Anderson be reinstated because he has breached Thiess’ value of trust and clearly does not respect his colleagues. Mr McCarthy further states that Thiess has a large number of Indonesians working in its business who are Muslims and that Mr Anderson has no respect for their beliefs. Mr McCarthy does not want someone with Mr Anderson’s values in Thiess’ business.

[81] I accept Mr McCarthy’s evidence on this point. I am also of the view that Mr Anderson’s complete lack of contrition and his refusal to accept any culpability for his actions or the serious implications that sending the email had, militates against reinstatement. This is compounded by Mr Anderson’s unwavering belief that the contents of the email he disseminated are true and that he is the one who should be offended. In all of these circumstances it is not appropriate to reinstate Mr Anderson.

[82] Given my finding that Mr Anderson’s dismissal was unfair, albeit that he was dismissed for a valid reason, I am satisfied that an order for the payment of compensation is appropriate in all of the circumstances of the case. Section 392 of the Act provides as follows in relation to the remedy of compensation:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[83] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket 18. In accordance with that approach, and s.392 of the Act, I calculate compensation as follows.

[84] At the point he was dismissed, Mr Anderson had been employed for over 12 years. Other than sending the email on 17 June 2013 there was no evidence of any issue being taken with his conduct, capacity or work performance in that period. At the point this application was heard, the job Mr Anderson held was still being performed and had been filled by another employee.

[85] In my estimation, but for his dismissal, in a manner and upon grounds which made the dismissal unfair, Mr Anderson would have remained in employment for a period of at least a further twelve months and for that period would have received a base salary of $114,314.72 in accordance with the relevant enterprise agreement, under which his weekly base rate at the point he was dismissed was $2198.36.

[86] Mr Anderson has not obtained alternative employment. His evidence is that he has attempted to do so and has made a number of phone calls to his contacts to see if anyone is hiring and has been unsuccessful. Mr Anderson also points to the fact that his age will make it difficult for him to obtain other employment. Mr Anderson has taken some steps to mitigate his loss, but I am not satisfied that he has done all that he reasonably can in this regard.

[87] In relation to discounting for contingencies, I have concluded that the level of discount should be 50% in this case. Mr Anderson’s employment could have ended for any number of reasons and given the attitude that he displayed in this hearing and his refusal to accept any responsibility for his conduct, had the decision been made to issue Mr Anderson with a final warning in June 2013 there was a prospect that he could have been dismissed for another reason after that warning was given. Applying a 50% discount for contingencies, reduces the amount of $114.314.72 to $57,157.36.

[88] For the reasons set out above, I am satisfied and find that Mr Anderson made a significant contribution to the situation he found himself in on 17 June 2013, and I have concluded that the amount of compensation awarded to him should be adjusted by 50% for that reason. Making that adjustment results in an amount of $28,578.68. That amount, less taxation deductions required by law, is to be paid to Mr Anderson within 14 days of the date of release of this decision. An Order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Mr Anderson on his own behalf.

Ms C. Brattey on behalf of Thiess Pty Ltd.

Hearing details:

2014.

Mackay:

June 25.

 1   Form F2 Application for unfair dismissal remedy filed by Ronald James Anderson on 4 July 2013.

 2   Edwards v Giudice 94 FCR 561.

 3   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 4   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 5   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 6   Farrugia v Transadelaide SAIR 6.

 7   Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; Concut v Worrell 176 ALR 693.

 8   Walton v Mermaid (1996) 142 ALR 681 at 685.

 9   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

 10   Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 42 per Derrington J.

 11   Ibid at 42.

 12   PR974391 AIRC 663.

 13   Exhibit 2 Witness Statement of Rodney Stuart Nichols Annexure RN-A

 14   Exhibit 2 Witness Statement of Rodney Stuart Nichols Annexure RN-1.

 15   Transcript of proceedings 25 June 2014 PRN 186-187.

 16   Transcript of proceedings 25 June 2014 PRN 1365.

 17   Exhibit 2 Witness Statement of Rod Nichols, Annexure “Rn-3”.

 18 (1998) 88 IR 21

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