Mr Sean Gamble v Department of Justice

[2015] FWC 61

[2015] FWC 61

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute

Mr Sean Gamble
v
Department of Justice
(C2014/4908)

State and Territory government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 7 JANUARY 2015

Outcome of an investigation in to allegations of misconduct; being assigned a role at a lower classification.

Introduction

[1] Mr Sean Gamble is employed by the Department of Justice (the Department) as a District Supervisor in the Sheriff’s Office. He commenced work in the Sheriff’s Office in October 1989. By letter dated 8 May 2014, Mr Gamble was advised of the final outcome of an investigation into allegations of misconduct. It was decided that, in accordance with clause 19.11.2(f) of the Victorian Public Service Workplace Determination 2012 (the Determination), he would be assigned to a role at a lower classification level or value range. 1 There is no issue that Mr Gamble is a public sector employee and is bound by the Code of Conduct for Victorian Public Sector employees (Code of Conduct).

[2] Mr Gamble notified a dispute about the application of clause 19.11 of the Determination on 13 June 2014. It was stated that the demotion of Mr Gamble from a VPS 4 to VPS 3 was disproportionate to the seriousness of the matter. Several attempts at conciliation failed and the matter was finally listed for hearing on 22 October 2014.

[3] Mr Gamble was represented by Mr Laird from the CPSU, the Community and Public Sector Union (CPSU) and the Department of Justice (the Department) was represented by Mr Maddison.

[4] It is appropriate at this stage to set out the two relevant clauses of the Determination:

19.11 Determination of discipline outcome

19.11.1 The Employer will consider:

19.11.1(a) the findings of the investigator; and
19.11.1(b) the recommended discipline outcome; and
19.11.1(c) any response of the Employee (including any admission of misconduct under clause 19.7); and
19.11.1(d) any prior disciplinary outcomes, and then determine the discipline outcome that is to apply to the Employee. The discipline outcome must not be disproportionate to the seriousness of the matter.

19.11.2 The possible discipline outcomes are:

19.11.2(a) no action;
19.11.2(b) performance management;
19.11.2(c) formal counselling;
19.11.2(d) formal warning;
19.11.2(e) final warning;
19.11.2(f) assignment of the Employee with or without their agreement to a role at a classification level or Value Range lower than the Employee’s current classification level or Value Range;
19.11.2(g) transfer of the Employee with or without their agreement to a different work location at the Employee’s current classification level (which will not preclude the Employee being entitled to payment of any applicable relocation allowance in accordance with clause 30.10); or
19.11.2(h) termination of employment.

19.11.3 The Employer will advise the Employee of the discipline outcome in writing and a copy will be placed on the Employee’s personnel file.

[5] And later

19.13 Disputes

Any dispute arising under this clause may only be dealt with in accordance with clause 11 (Resolution of Disputes) when any of the following are placed on the Employee’s personnel file in accordance with this clause (this may include whether clause 19.6 has been complied with in the Employer coming to a decision):

19.13.1 a record of formal counselling;
19.13.2 a formal written warning;
19.13.3 a final written warning; or
19.13.4 a record of discipline outcome.

[6] As can be seen the Determination specifically empowers the Commission to examine disputes under Clause 19. There is no issue that the proportionality of the outcome is a matter over which the parties have conferred jurisdiction on the Commission.

Background

[7] On 27 March 2012 Mr Gamble was issued with a formal warning in relation to a pattern of conduct which created a risk to another employee’s health and safety (i.e. bullying). At that time Mr Gamble was warned that any future breaches of the Code of Conduct may result in further disciplinary action. To address the conduct the Department organised mediation between Mr Gamble and the other person involved.

[8] The Department also arranged for Mr Gamble to undergo training in relation to respect in the workplace.

[9] On 20 November 2011 a further notice of Investigation into Alleged Misconduct was sent to Mr Gamble. The four allegations were:

Allegation 1 That he spoke in an aggressive and/or inappropriate way to a co-worker.

Allegation 2 That he spoke in an aggressive and/or inappropriate way to a second co-worker.

Allegation 3 That he misled a person.

Allegation 4 That he spoke in an aggressive and/or inappropriate way to a third co-worker.

[10] On 28 November Mr Gamble replied and that in relation to Allegation 1, he stated: “I acknowledge the use of such language is inappropriate, unprofessional and reflects poor verbal skills”. In relation to Allegation 2, he did not recall the comment and challenged the complaint. As to Allegation 3, he denied misleading anyone. Finally in relation to Allegation 4 he denied directing language to the employee concerned and indeed apologised if such was thought to be the case.

[11] In May 2014, Mr Gamble was advised that the Department was appointing an external investigator to continue the investigations into the alleged misconduct. On 14 April 2014, the report was presented to the Department. The findings were that:
Allegation 1 Proven.

Allegation 2 Not proven.

Allegation 3 Not proven.

Allegation 4 Proven.

[12] By letter dated 16 April 2014, Mr Gamble was presented with the findings of the inquiry and invited to comment prior to any final decision. On 2 May 2014 Mr Gamble did respond and raised a number of mitigating circumstances including family health issues and the death of a close friend. He stated that he was emotionally fatigued and struggling towards the end of the year. Mr Gamble added that: “I can see my behaviour and language was hurtful and unnecessary”. 2

[13] Reflecting upon his response, Ms Levine, the relevant Executive Director opined:

He has been offered EAP often, as I’ve said above has had significant coaching with Dr Leigh Gassner, a formal warning (first and final) and formal mediation (in the last 18 months), which haven’t made any impact. These matters have also been addressed through the PDP process without any impact.

Therefore I believe that the option for demotion is the only appropriate one in light of the gravity of the allegations. 3

The evidence

[14] To support his application Mr Gamble gave evidence and called two other witnesses. They were: Ms D. Bianco and Mr J. Blewer.

[15] Ms Bianco’s evidence did not contradict the language used but stated that it was not directed at the person who complained and that swearing in the workplace was very common. Ms Bianco said that she didn’t pay much attention to the matter given it was not significant. Mr Blewer’s evidence was that Sherriff’s do a difficult job and that nobody is pleased to see them. His evidence was that there is swearing in the workplace and that it is not directed at anybody but usually an outlet. Mr Blewer did not witness any of the incidents. Both Ms Bianco and Mr Blewer have Mr Gamble as their supervisor.

[16] The Department called two witnesses: Mr J. Barclay (Workplace Advisor for the Department of Justice) and Ms A. Hunt-Sturman (General Manager, Safety and Wellbeing in the Department of Justice). The evidence of Mr Barclay went to the process adopted by the Department in receiving and investigating the complaint made against Mr Gamble together with the information used to reach the final decision. Ms Hunt-Sturman’s evidence went to the training received by Mr Gamble (and others) about the Departments desire for respect in the workplace. I observe that this is a comprehensive training package.

The submissions

[17] To begin, Mr Laird submitted that the author of the report into the conduct of Mr Gamble was not called by the Department nor was the decision maker from the Department. In this connection the Commission was entitled to conclude that their evidence would not have assisted the case of the Department [see Jones v Dunkel (1959) 101 CLR 298]

[18] Mr Laird said that there were errors of fact in the decision making and that insufficient weight was given to the mitigating circumstances effecting Mr Gamble. He submitted that anyone can have a bad day and this applied to Mr Gamble on that day, given the other private circumstances facing him. It was submitted that swearing needed to be seen in context and that conduct is not committed in a vacuum. In this connection he referred to the decision in Qantas Airways Limited v Cornwall [(1998) 83 IR 102).

[19] Mr Laird argued that the conduct could not be regarded as misconduct as that commonly involves dishonesty, violence or harassment, offensive behaviour or wilful disobedience [see Quinn v Overland (2010) 199 IR 40 at 84]. He argued that Mr Gamble’s conduct could not been seen in this light.

[20] It was submitted that after 25 years of good and faithful service, Mr Gamble should not be demoted as it would put a major road block in a largely unblemished career.

[21] Mr Maddison submitted that Mr Gamble’s conduct meant that he could no longer be a supervisor as there was a higher level of responsibility in relation to conduct. It was submitted that the Commission should not put itself in the shoes of the employer but should only intervene if something is manifestly unfair and that there is a “huge” breach of process.

Mr Maddison submitted that the investigator had properly carried his remit. In this connection he drew attention to a finding in relation to Allegation 1.

In the investigator’s opinion, although Mr Gamble’s evidence is that he may not have intentionally wished to appear or behave in an aggressive manner when he made the statement in question, and Ms Bianco’s evidence as a bystander is that she did not perceive him to be such, (the employee—name deleted) undoubtedly understood his message to have been delivered in an aggressive, confrontational tone. Mr Gamble stated that he was feeling “fed up” and was “venting” at the relevant time, and had received bad news prior to his interaction with (the employee—name deleted). The investigator therefore believes it is likely that his tone during their conversation reflected those emotions to some extent.

Further, Mr Gamble (and seemingly Ms Bianco) has demonstrated that he considers that it is acceptable to swear when speaking to colleagues in the workplace, as a manifestation of frustration and/or stress, whereas (the employee—name deleted) does not share the same opinion.

In the context of specifically turning to the words: “I don’t give a fuck what you’re doing. It’s none of my business” to someone whom one is not otherwise in conversation at the time, and glaring at that person, staring intently as one did so, and then turning back to recommence the ongoing conversation with another party, constitutes inappropriate and indeed an aggressive way of verbal communication.

[22] Mr Maddison submitted that the Department did consider all relevant matters. It considered the circumstances found to be proven by the investigator, the submissions in mitigation by Mr Gamble, the previous disciplinary outcomes and the training received.

[23] It was submitted that the Commission should dismiss the application.

The approach

[24] Whilst the Commission is being asked to consider the proportionality of the action of the employer, it does not do so in a vacuum. There have been decisions taken by the management of the Department and these must be judged as to whether or not they were fair and reasonable in the circumstances. To this must be added the fairness and the reasonableness of the systems used to reach the conclusion. I don’t agree with Mr Maddison that there must be a huge failure in the system for the Commission to intervene. It is always appropriate for procedural fairness to be followed to ensure that the decision maker has all the relevant facts. Being content that the decision maker has all the relevant fact does add substance to the process.

[25] This is in one sense an appeal against the decision of the employer. Without seeking to place any particular parameters around such an exercise by the Commission, it appears to me that some weight must be given to the decision of management that bears the responsibility of managing the work area. It would be inappropriate to create a situation where managers are too frightened to manage lest it be perceived that the Commission would simply substitute its view for that of the manager. To this end, the decision of management must be within a range of reasonable responses. The Commission must give weight to the view of management which has regard for the dynamics of the workplace. It should only be where the Commission is of the view that the response is not reasonable in the circumstances, can a view be formed that particular action is disproportionate. It is not unlike a situation involving alleged unfair termination of employment where judgement is often required by the employer. 4

[26] It is also proper to consider the context in which the conduct took place and in this connection I agree with Mr Laird.

Conclusion

[27] To begin I find that there was no error in the investigation of this matter. Mr Gamble was given an opportunity to respond to the allegations made against him. I express some disquiet about the time taken to deal with this matter but that is not fatal to the matter at hand.

[28] Given the material provided, it was also not necessary to call either the decision maker or the person who compiled the report. The decision in Jones and Dunkel doesn’t require an adverse finding to be made simply it allows one to be made if it is appropriate in the circumstances. The language used is not in contest, rather it is the surrounding circumstances and the matters in mitigation. The investigator clearly canvassed the various views which were expressed to me in evidence and he had the benefit of speaking to all the witnesses. Much of the evidence before me was consistent with the findings of the investigator. For example whilst it said that Mr Gamble’s swearing was not directed personally, his own evidence was that he was facing the person when he made the comment. 5 I accept the findings of the investigator.

[29] The next matter is whether or not the decision of the Department was disproportionate. The facts were these:

● Mr Gamble was a supervisor;
● Mr Gamble had a previous warning for bullying;
● Mr Gamble had undergone proper training in respect in the workplace;
● Discussions were being had with Mr Gamble as a part of his PDP process in relation to respect for others; and
● Mr Gamble did have personal issues which were said to be in mitigation.

[30] I am satisfied that the background of Mr Gamble’s conduct in his capacity as a supervisor made the possibility of demotion a reasonable option. I am also satisfied that his submissions in mitigation were properly taken into account to the extent that the decision maker had sympathy for his circumstances.

[31] In all I am satisfied that the process and the decision of the Department were reasonable responses and as such I do not propose to intervene.

DEPUTY PRESIDENT

Appearances:

R. Laird on behalf of the applicant.

J. Maddison for the Department of Justice.

Hearing details:

2014.

Melbourne:

October, 22.

 1   See Exhibit DoJ2, Attachment JB-14.

 2   Ibid, Attachment JB-12.

 3   Ibid, Attachment JB-13.

 4   See for example Smith and Others v Pacific Coal - Print PR 925566 at paragraphs 55 and 56.

 5   Transcript PN108-109.

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