Mr Shane Stephens v Aerial Capital Group Limited

[2014] FWCFB 2213

[2014] FWC 405 [Note: An appeal pursuant to s.604 (C2014/155) was lodged against this decision - refer to Full Bench decision dated 11 April 2014 [[2014] FWCFB 2213] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr Shane Stephens
v
Aerial Capital Group Limited
(U2013/11538)

COMMISSIONER DEEGAN CANBERRA, 15 JANUARY 2014

Application for relief from unfair dismissal.

[1] On 16 July 2013 Mr Shane Stephens (the applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment by Aerial Capital Group Limited (the respondent). As conciliation in the matter was unsuccessful, directions were issued for the filing of statements and submissions prior to the determination of the matter.

Representation

[2] Prior to the hearing the applicant advised the Commission that it was his intention to object to the respondent being represented by a paid agent at the hearing. A directions hearing was listed to enable the question of representation to be determined in advance of the hearing of the substantive application.

[3] At the directions hearing the representative of the respondent, Mr Bates, argued that there was no requirement for the Commission to grant him leave to represent the respondent at the hearing as, on his submission, he was not a ‘paid agent’ for the purposes of s.596 of the Act. This argument was advanced on the ground that the representative did not intend to charge the respondent, for representation at the actual hearing. The representative did not deny that in all other respects the respondent was being charged for representation.

[4] Having considered the argument I informed Mr Bates that in my view he was a ‘paid agent’ for the purposes of s.596 of the Act. I noted that it was my view that the manner in which the charges were levied was immaterial for the purposes of the section, and if Mr Bates was representing the respondent in the matter before me for a fee, he was, in fact, a paid agent, irrespective of how the fees were apportioned. I then invited Mr Bates to address me on those matters set out at s.596 (2) of the Act so that I might determine whether permission should be granted for him to represent the respondent at the hearing. Mr Bates declined to put any submissions concerning s.596(2).

[5] In the absence of any argument to the contrary, and on the basis of the documentation already filed in the matter, I determined that the matter was not complex and would be able to be dealt with efficiently if the respondent were not represented by a paid agent. No argument was put that the respondent was incapable of representing itself effectively. In all those circumstances and given that the applicant was representing himself, I considered that it would be unfair to allow the respondent to be represented. Permission for Mr Bates to represent the respondent was denied.

[6] At the hearing the applicant appeared in person and the respondent was represented by Mr Phillip Skipper, who is employed as the General Manager of the respondent.

Background

[7] The applicant was employed by the respondent from August 2004 until 11 July 2013. At the time of the termination of his employment he was a Senior Manager. For the majority of the time the applicant was employed, Mr William Bellew was the General Manager of the respondent. In May 2013, shortly before an election was conducted for board members of the respondent, Mr Bellew stood aside and Mr Phillip Skipper initially acted as, and then became, the General Manager. During the relevant time Mr Mark Bramston was the overall manager of the respondent.

[8] During May and June 2013 the relationship between the applicant and the other senior managers deteriorated. On 11 July 2013 the applicant received a letter of termination which indicated that his employment was being terminated as senior management had lost the ‘trust and confidence’ in him necessary for the continuation of the employment relationship. The following incidents were cited as having led to the loss of trust and confidence:

● On 21 June 2013 the applicant posted on his office door a confidential letter of warning which had been issued to him;
● On 26 June 2013 the applicant informed his managers that he had no intention of following an instruction that had been given to him; and
● On 5 July the applicant was unable to reach a resolution with the General Manager, Mr Skipper, about his job description and associated activities and to demonstrate that he could maintain an appropriately productive and professional relationship with the General Manager.

[9] The letter of termination also acknowledged receipt of the applicant’s claim for workers’ compensation for stress.

The Applicant’s Evidence

[10] According to his witness statement 1 the applicant performed a number of roles during his 8 years of employment with the respondent. It was his evidence that over the period of his employment he had been assigned additional duties without additional remuneration. He claimed he had not been subject to any disciplinary action from his employer until he voiced concerns about a criminal conviction against Mr Bellew to Mr Skipper, and attempted to discuss some personal issues he was having with Mr Skipper.

[11] It was the applicant’s evidence that there was a very casual, familiar and informal culture in the respondent’s workplace. 2 The applicant claimed that on a number of occasions he had been put in difficult positions by senior management. In particular the applicant indicated that he had difficulties with Mr Bellew, which had commenced when Mr Bellew had employed the applicant’s father, over the objections of the applicant, and had then required the applicant to supervise him. The applicant claimed that Mr Bellew actively undermined him on a number of occasions.

[12] The applicant also alleged that he experienced more general difficulties with management, beyond the issues he had with Mr Bellew, in seeking to have senior management clarify his role, and in the additional workload he had been required to assume with no additional remuneration. These difficulties, combined with the stress of managing staff had, according to the applicant, led to a deterioration in the applicant’s health which led to a diagnosis of stress and depression in late May 2013.

[13] Following a doctor’s appointment on 30 May 2013 the applicant was given a medical certificate for the period 30 May until 10 June. Despite having a medical certificate, the applicant returned to work that afternoon and also the following day as he was required to interview a prospective employee. On 31 May he attempted to discuss his problems with Mr Skipper but found him ‘hard to speak to’. He did not attend work the following Monday and sent a text message to Mr Skipper in the following terms:

‘Can’t keep doing this shit, tried many times to resolve with you but keep having the same conversation!!! I am not well and will not be in today, Shane.’ 3

[14] The applicant notified Mr Skipper by text on the 4 June that he was still sick and on 5 June advised he would probably not be in for the rest of the week. When he returned to work on 11 June Mr Skipper asked him what his text of Monday 3 June had been referring to. The applicant had responded that it was about ‘the situation...at work’ and the ‘lack of direction and communication with him.’ 4

[15] The applicant stated that he had two discussions with Mr Bramston and Mr Skipper about job descriptions in the days after his return to work on 11 June. The discussions were truncated because of Mr Bramston’s other commitments but the applicant claimed to have been cooperative and offered ideas. He noted that during a later discussion with Mr Bramston on 19 June he advised Mr Bramston that no progress was being made as Mr Skipper would not discuss the matter of job descriptions with him.

[16] According to the applicant Mr Bellew was not at work during the period 11 to 21 June. When Mr Bellew returned he confronted the applicant asking whether the applicant was ever going to talk to him again. When the applicant responded ‘No not at the moment’, Mr Bellew left and returned with Mr Skipper and asked the same question. The applicant responded in much the same manner. When Mr Bellew asked the applicant what his problem was the applicant had answered that he didn’t like the way Mr Bellew treated people.

[17] The applicant also claimed that he attempted to discuss his depression with Mr Skipper at the time, though indicated that Mr Skipper did not comment on the depression. Mr Skipper then asked the applicant to keep a written record of his work the following week. According to the applicant, he told Mr Skipper that he had already gone through the work he did and was still waiting for the revised job descriptions. When Mr Skipper asked if he was refusing to follow the direction the applicant claimed that he replied that he was not refusing but questioning the direction. Mr Skipper reiterated his direction and informed the applicant that he would issue him with a written warning.

[18] When issued with the warning letter the applicant took the decision to post it on the outside of his office door, as Mr Skipper ‘refused to discuss it’ with him and as a result of ‘the stressful events’ that had occurred that day. 5 The applicant decided that his colleagues should be made aware of what Mr Skipper and Mr Bellew were doing. After work the applicant received a text message from Mr Bellew asking what he had done and apologising for it as ‘it must have been pretty bad.’6 The applicant had replied, noting that it was a culmination of matters, and stating that he blamed Mr Bellew for the stress and depression he was suffering. Mr Bellew responded that he was sorry the applicant felt that way and offered to provide professional help for him to deal with his stress and depression. The applicant believed that Mr Bellew had an ulterior motive for the offer.7

[19] On the following Monday Mr Skipper asked the applicant why he had posted the warning letter on his office door. The applicant replied that he ‘felt it was a good idea at the time’ 8 as Mr Skipper would not talk to him about it and he considered that Mr Skipper and Mr Bellew were trying to get rid of him and he wanted other people to know. According to the applicant the matter was not raised again until a meeting with Mr Bramston on 5 July. After the conversation Mr Skipper gave the applicant a written offer of professional assistance for his stress and depression. The applicant did not consider the offer was genuine.

[20] It was the applicant’s evidence that on 25 June he left work early with a migraine. On 26 June he was approached by Mr Skipper and asked if he had been recording the work he had been doing. The applicant replied ‘No, not as yet.’ 9 At this Mr Skipper had stated that the relationship was no longer tenable and made a monetary offer for the applicant to resign. The applicant stated that he would not resign and Mr Skipper reiterated that the relationship would not continue. The applicant did not attend work on 27 or 28 June as he was unwell. On 28 June the applicant received a medical certificate stating he was unable to work until the following Thursday. He informed Mr Skipper, who requested that he provide his password for the computer system. The applicant replied, stating that if Mr Skipper told him what he wanted it for he would provide it.10 On the following Tuesday the applicant found he was unable to access the computer network.

[21] On 5 July, at the applicant’s request, he met with Mr Bramston. The applicant informed him of his stress and depression and Mr Bramston asked about the issue with the warning letter. Mr Bramston then asked if the relationship between the applicant and Mr Skipper was repairable. The applicant said that it was and agreed to meet with Mr Skipper to try and resolve the issues of job descriptions. 11 The applicant tried to arrange a time to meet with Mr Skipper but had difficulty contacting him. When the applicant eventually met with Mr Skipper, Mr Skipper stated that he did not want to discuss the issues until the applicant returned from sick leave, though he did wish to discuss what had happened previously.12 The applicant was upset and asked Mr Skipper to involve Mr Bramston. Mr Skipper, after checking with Mr Bramston, indicated that Mr Bramston did not wish to be involved. The applicant then informed Mr Skipper that he had another doctor’s appointment the following week and may make a workers’ compensation claim. He confirmed this intention by text the next day and on Monday 8 July Mr Skipper advised the applicant to fill out a claim form as the insurer had been notified. He also requested the medical certificate.

[22] On 11 July the applicant received the letter of termination.

[23] When cross-examined the applicant denied that he had left the office on 30 May 2013 without advising Mr Skipper that he was going to a doctor’s appointment. 13 He claimed that he had told Mr Skipper that he had a medical appointment and had made a number of attempts to discuss his stress and depression with Mr Skipper, but agreed that he first advised Mr Bellew of his condition by a text message.14 He stated that he was only diagnosed with stress and depression at the doctor’s appointment on 30 May and was unsure what his problem was until that date.

[24] The applicant confirmed his evidence about the text message he had sent to Mr Skipper at the beginning of June. He agreed that he had provided the doctor’s certificate on his return to work and that Mr Skipper had asked him why he had not provided the certificate immediately for the full period instead of texting each day saying he would not be in. According to the applicant he had worked before when Mr Bellew was aware that he had a doctor’s certificate covering a defined period. 15 The applicant claimed that he hoped to be well enough to work despite the certificate.

[25] The applicant conceded that he had had a good working relationship with Mr Bellew in the past and that Mr Bellew’s conviction had occurred some five years prior to the termination of his employment and that he had had a good working relationship with Mr Bellew during much of that time. He agreed that, about 18 months prior, they had often lunched together or met after work. According to the applicant the relationship deteriorated as a consequence of the management of the call centre and Mr Bellew’s decision to remove the full time manager and have the applicant directly manage the centre.

[26] The applicant conceded that Mr Skipper had requested that he keep a written record of his duties and activities. He refused to concede that Mr Skipper had asked him to keep such a record on a number of occasions prior to the issue of the warning letter claiming that the warning letter would have referred to those occasions if that were the case. He agreed however that it was his view that Mr Skipper’s instruction to record his duties was ‘so minor’ that his refusal to follow it would not be considered serious. 16

[27] When it was put to him that he seemed to consider that he could decide which instructions he would follow the applicant denied this, claiming that he wasn’t given an opportunity to follow the instruction before the warning letter was issued. When it was put to him that he had been asked the following Wednesday if he had followed the instruction the applicant claimed that he had replied ‘no, not as yet,’ rather than ‘no.’ 17

[28] The applicant also denied that he had told Mr Skipper that he would do just enough work to keep his job and once he had another job, he would be gone.

[29] The applicant conceded that both Mr Skipper and Mr Bellew had told him that they had no intention of terminating his employment but stated that their ‘actions showed otherwise.’ 18

[30] The applicant denied that Mr Bramston had asked him to re-engage with the management team and to stop locking himself away in his office. He denied that Mr Bramston was specific about his reasons for arranging a meeting between the applicant and Mr Skipper on 5 July.

[31] The applicant reiterated that he had attempted to discuss his stress and depression on a number of occasions with Mr Skipper but that Mr Skipper did not seem interested. The applicant conceded that both Mr Bellew and Mr Skipper had made offers of help when he referred to stress in his text message on 21 June, and that he had not responded to those offers as he did not believe them to be genuine. He claimed that he was not given an opportunity to do so.

[32] It was put to the applicant that when he met with Mr Skipper on 5 July he insisted on repeating his request for a job description and refused to discuss anything else. The applicant denied this.

[33] When asked about his relationship with another employee, Ms Lowe, the applicant conceded that they had a friendly relationship but that it changed as ‘she was doing a lot of gossiping around the workplace’ about his relationship with another person. 19 He denied ever making any disparaging remarks to Ms Lowe, but conceded that she had overheard him referring to her as incompetent. He denied calling her ‘a lazy bitch’ and being reprimanded by Mr Skipper.20

[34] Finally the applicant agreed that he had made a claim for workers’ compensation which had been denied as it was found that his injury was not work-related.

[35] The applicant also gave some evidence about his post -termination employment. He stated that he had had a paper run for a couple of weeks and had commenced a customer service position on a full-time basis about 6 weeks prior to the hearing. 21

The Respondent’s Evidence

[36] Four witnesses were called for the respondent;

• Mr Phillip Skipper - General Manager



• Mr William Bellew - Operations Manager



• Mr Mark Bramston - Manager



• Ms Kirsty Lowe - Administration Officer

[37] Mr Skipper filed a statement of evidence 22 and was cross examined at the hearing. It was Mr Skipper’s evidence that he was a senior manager with the respondent and had worked with the applicant for three years. He stated that the applicant’s role had changed during his employment and that there had been good working relationship between the senior managers which, in the case of Mr Bellew and the applicant, had included banter and jesting.23

[38] Mr Skipper claimed to have been unaware of the applicant’s stress or depression until advised by Mr Bellew. 24 Mr Skipper made the formal offer of assistance to the applicant upon learning of his problems but noted that the applicant never replied to that offer. It was also his evidence that while the applicant had advised him that he had an appointment on 30 May he did not tell him it was a doctor’s appointment. He noted that despite having a medical certificate that covered him for a week the applicant did not produce it until his return and only advised of his intention not to work each day through the period. Mr Skipper stated that he did not expect employees to work when declared unfit to do so.

[39] According to Mr Skipper, when the applicant returned to work and was asked what he meant by ‘this shit’ in his text message on 3 June, he had mentioned leadership and communication and at no time mentioned stress or depression. 25

[40] It was the evidence of Mr Skipper that the relationship between the applicant and Mr Bellew only ‘fell apart’ in the lead up to the board elections. He denied that Mr Bellew undermined the applicant and was surprised at how ‘bitter and hateful’ the applicant became towards Mr Bellew in the period before the dismissal. Mr Skipper also witnessed the applicant’s bullying of Ms Lowe

[41] So far as the events leading to the dismissal were concerned Mr Skipper claimed that the applicant:

• appeared disinterested in the job redesign discussions;



• requested a job description in the full knowledge that the jobs were being redefined at the time;

• repeatedly ignored requests to record his work and daily activities;



• stated that he would not talk to Mr Bellew unless he had to;



• refused to work in the office with Mr Bellew if Mr Bramston and Mr Skipper were away;



• responded to requests for a record of his work with remarks such as ‘good luck with that’ and ‘it ain’t gonna happen’; and



• on 21 June, responded ‘no’ when asked whether he intended to follow Mr Skipper’s direction to make a record of his work the following week. 26

[42] Despite his concerns about the applicant’s refusal to follow his directions and posting on his office door the warning letter issued as a result, Mr Skipper took no immediate action because he wanted to escalate the matter to Mr Bramston as he had serious concerns about the applicant’s future with the company. He had some discussion with Mr Bramston and then, on Wednesday 26 June asked the applicant if he had been recording his work as directed. The applicant had replied ’no’. 27

[43] According to Mr Skipper he made the offer of resignation to the applicant as the applicant had said how much he hated the place, and that as soon as he had a job to go to he would be gone.

[44] Mr Skipper met with the applicant on the afternoon of 5 July at Mr Bramston’s request and in an attempt to re establish a working relationship with him. He did not believe that it was appropriate to discuss job descriptions in that meeting as the applicant was on sick leave.

[45] Finally, Mr Skipper stated that he was relieved that the applicant had been dismissed as he was ‘unreliable, very disrespectful, unwilling to work co-operatively and not prepared to do his job in an acceptable way.’ Further it was his evidence that he would never work with the applicant again. 28

[46] When cross-examined Mr Skipper stated that he was aware the applicant’s workers’ compensation claim had been rejected. He denied that the applicant’s text message of 3 June contained an inference that he was suffering from stress.

[47] Mr Skipper reiterated that he had initially made allowances for the applicant’s refusal to comply with his request to record his work but conceded that he did not say this to the applicant at the time. Mr Skipper also agreed that he had not discussed the warning letter with the applicant at the time he issued it. He had told the applicant that it was a warning letter and the applicant had not responded.

[48] It was Mr Skipper’s evidence that he was not aware that the applicant wished to speak to him on 5 July until later that afternoon. He stated that he was unaware that the applicant was suffering from stress as his offer of assistance had not received any response. He also agreed that no meetings had been called for the specific purpose of discussing the applicant’s performance.

[49] According to Mr Skipper his concerns about the applicant’s attitude were gradual until he formed the opinion that the situation between the applicant and the company was irreconcilable and it would better for the applicant’s employment to be terminated.

[50] William Paul Bellew, the applicant’s direct manager until about two months before the dismissal, lodged a witness statement 29 for the respondent. It was his evidence that he had worked for the company for about 30 years and until fairly recently had had a good working relationship with the applicant. He stated that the senior managers often had ‘politically incorrect’ discussions between themselves because they knew each other very well and knew no offence was caused.

[51] Mr Bellew’s evidence went to his conviction for an offence that occurred some years earlier. He noted that the senior managers in the company, including the applicant supported him through the process with support and encouragement.

[52] According to Mr Bellew the applicant’s attitude to him changed after an election for the board of the company in late May 2013. It was Mr Bellew’s belief that the applicant thought that, after the election, he would be promoted Mr Bellew’s position of General Manager. 30 According to Mr Bellew it was at that time that the applicant commenced talking about him to other managers in derogatory terms. .

[53] Mr Bellew denied a number of the allegations made by the applicant in particular that the applicant made repeated requests for a job description or was unable to talk to him about the call centre manager position. He noted that he had personally initiated the applicant’s promotions.

[54] According to the witness the applicant had not mentioned that he was suffering from stress or depression until the text message of 21 June 2013. 31 He noted that he responded to that message offering, on behalf of the company, professional help. He claimed that the offer was both genuine and sincere and was followed by a formal letter from the company making the same offer. He refuted the claim by the applicant that his attitude was that stress was ‘made up,’ noting the stress he had endured as a result of the conviction against him and problems suffered by a close family member.

[55] It was the evidence of Mr Bellew that he altered Ms Lowe’s reporting arrangements to remove her from day to day contact with the applicant after he commenced treating her badly after a personal disagreement.

[56] Mr Bellew agreed that the applicant’s evidence about the conversation he had with him on 21 June were essentially accurate. The applicant had made it clear to Mr Bellew and to Mr Skipper that he had no intention of speaking to Mr Bellew unless absolutely necessary. Mr Bellew claimed that although upset by the applicant’s comments he remained calm but informed Mr Skipper that he ‘could not work like this anymore.’ 32

[57] It was the evidence of Mr Bellew that the company did not disturb people who were on sick leave. It was for this reason that he requested the applicant’s password and then had the password reset to get the necessary files.

[58] Finally, Mr Bellew stated that on 11 July he was diagnosed with stress and anxiety which he believed was caused by the applicant’s behaviour prior to his dismissal. He did not believe he could ever work with the applicant again given the things the applicant had said about him both prior to and after his dismissal.

[59] When cross-examined Mr Bellew stated that despite having discussed the applicant’s behaviour with other senior managers and considering it a serious issue, he was unaware that the matter was not raised with the applicant prior to 21 June.

[60] Mr Bellew reiterated that, in the circumstances, he did not consider the request for the applicant’s password unusual and that the password would have been reset on the applicant’s return from sick leave.

[61] Mr Bellew reiterated his belief that the applicant’s attitude toward him changed because he did not get the general manger job after the board election. He conceded that Mr Skipper was appointed General Manager before the election. He also agreed that he had stood aside from the general manager role because of the upcoming election.

[62] When re-examined Mr Bellew stated that he had not been involved in the decision to terminate the applicant’s employment.

[63] Mr Mark Bramston has been a senior manager with the respondent for about 9 years. In his statement of evidence 33 he noted that he had worked with Mr Bellew for 9 years, the applicant for 4 years, and Mr Skipper for 3 years.

[64] It was Mr Bramston’s belief that matters began to ‘go downhill’ with the applicant after the ‘fairly robust’ board election campaign. 34 He also believed that the applicant had been offered a job by a board candidate who failed to be elected and was very upset about missing out on that job. Mr Bramston stated that at the meetings held in the second week of June to discuss job roles and responsibilities the applicant was not cooperative or putting forward ideas as he had claimed. According to the witness the applicant was uncooperative in assigning tasks to himself and his staff and was sullen and moody. It was also his belief that Mr Skipper had, as directed to by Mr Bramston, attempted to discuss and resolve these matters with the applicant but the applicant would not cooperate.

[65] According to Mr Bramston, at the meeting held at the applicant’s request on 5 July the applicant admitted that he had posted the warning letter on his door and refused to follow Mr Skipper’s instructions about recording his work. He denied that the applicant had raised his stress, depression or lack of sleep at that meeting, or claim that his relationship with Mr Skipper was repairable. The applicant was also reluctant to meet with Mr Skipper. Mr Bramston told him that he would be involved in the discussion with Mr Skipper but only if absolutely necessary. When Mr Skipper told him that the applicant wanted him to join the discussion later that afternoon Mr Bramston and Mr Skipper decided that it would not be helpful for him to intervene.

[66] Mr Bramston stated that he approved the termination of the applicant’s employment the following week because he considered his misconduct so serious and persistent that it was impossible to continue to work with him. He no longer trusted the applicant and Mr Skipper could not manage him if the applicant would not follow his instructions. He was also conscious of the animosity the applicant had for Mr Bellew but not the reason for it.

[67] At the hearing it was Mr Bramston’s evidence that during his conversations with the applicant in the lead up to the dismissal he spoke to him on two occasions and advised him to leave his door open and join in the activities within the business. The applicant did not follow the advice. In the meetings about job design the conversation had also focused on a change in behaviour.

[68] When cross-examined Mr Bramston stated that he only had an impression that the applicant had been offered a job by a candidate for the board. When asked why he had not discussed the applicant’s change in behaviour with him, Mr Bramston responded that he had, through the General Manager. He also stated that he did not limit the discussion Mr Skipper had with the applicant on 5 July but merely facilitated a meeting between two people to attempt to resolve a failure to communicate. It was also his view that he did not need to be involved as it was about Mr Skipper’s relationship with the applicant and it was up to Mr Skipper to investigate it.

[69] Ms Kirsty Lowe’s statement of evidence 35 described the deterioration in her working relationship with the applicant and her belief about the reasons for it. She claimed to have been bullied by the applicant who called her a ‘lazy bitch’ within her hearing.

[70] Under cross-examination she reiterated her claims, including that the applicant had called her a lazy bitch on two occasions and constantly found fault with her work. She claimed that this only occurred after the applicant’s affair with another person became known.

Submissions

[71] Both the applicant and the respondent filed written submissions and made further oral submissions at the conclusion of the evidence.

[72] It was the applicant’s submission that his dismissal was unfair because there was no valid reason for it. He put that he was given a warning letter for not following an instruction that he was not due to start following until the next week. He was then ‘in trouble’ for sharing this warning, which he considered he was entitled to do. He submitted that at no time did the respondent ever put to him that termination was being considered and give him an opportunity to respond. He noted that he was only at work for two days between the letter being issued and his dismissal.

[73] The applicant further submitted that the respondent is not a small business and has significant help with its HR responsibilities. He believed that his actions should be seen in light of the culture at the respondent’s workplace, which he claimed was a ‘boys’ club’.

[74] It was put by the applicant that he was seeking reinstatement as he had worked in the taxi industry for a long time and knows it well. Because of the specialised nature of his work and his lack of formal training, according to the applicant, his opportunities for employment at a similar salary are virtually non-existent as there are no other equivalent positions in the taxi industry in Canberra. He argued that despite the respondent’s claims, the applicant could still be an effective member of the team.

[75] Finally the applicant submitted that his alternate employment entailed shift work, including weekends and public holidays, and after tax paid almost $900 less per fortnight than his former role.

[76] On behalf of the respondent, Mr Skipper submitted that the applicant had not established that his dismissal was harsh, unjust or unreasonable as the respondent had a number of valid reasons for dismissing him. The applicant had repeatedly refused to follow reasonable instructions, despite the fact that he was one of the senior managers. He also posted a copy of a warning letter on the office door, which was totally unacceptable and totally reprehensible. In addition the applicant did not follow Mr Bramston's instructions during the final meeting to constructively resolve issues with Mr Skipper.

[77] It was put for the respondent that the applicant was made well aware of the reasons for his dismissal before any final decision to terminate him was made. He was issued with a warning letter for failing to follow reasonable instructions and was told that this was totally unacceptable. He was asked by Mr Bramston to deal with the issues that he was having with the General Manager, and to resolve any conflicts, and to become engaged in the management team once again, which he failed to do. Further it was argued that the applicant had had ample opportunity to respond to the reasons that led to the dismissal during the two meetings he had asked for with Mr Bramston and Mr Skipper on 5 July. It was put that he chose not to offer any meaningful responses on either occasion and did not apologise for any of his actions.

[78] It was the respondent’s submission that a prior warning had been issued to the applicant but despite this he engaged in subsequent acts amounting to serious misconduct, including the posting of the letter on the office door and the subsequent refusal to follow reasonable instructions issued by Mr Skipper.

[79] It was noted that the respondent’s HR function is outsourced.

[80] Finally, it was put that the applicant’s testimony was totally inconsistent with the clear recollections of his three closest work colleagues. His medical condition was not made known to them until he texted Mr Bellew, and at that time steps were taken to offer him professional help. The applicant made no further mention of his medical condition until he made his claim for workers’ compensation which was rejected. It was the respondent’s position that the applicant’s behaviour had become intolerable, particularly given his senior position within the business.

Consideration

[81] I am satisfied that no jurisdictional issues arise in this matter and that, at the time of the termination of his employment, the applicant was a person protected from unfair dismissal. The respondent is a not a small business and there is no claim that the dismissal was a case of genuine redundancy.

[82] Section 387 of the Act sets out those matters that must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable. I will now deal with each of those matters.

Valid reason

[83] Having heard the evidence of the applicant and the evidence of Mr Skipper, Mr Bellew and Mr Bramston I am satisfied that the applicant’s conduct and behaviour over the month of June 2013 provided a valid reason for his termination. I found the evidence of the respondent’s representatives convincing, while the applicant was evasive and non-responsive to the questions put to him in cross-examination. He also altered some of his responses. He claimed to have raised or attempted to raise his depression and stress on numerous occasions with Mr Skipper, but then acknowledged that despite receiving the diagnosis, the first occasion he mentioned it was in his text message to Mr Bellew on 21 June. Where the evidence of the applicant differed from that of the respondent’s witnesses about the events of June 2013, I prefer the evidence of the Mr Skipper, Mr Bellew and Mr Bramston.

[84] I do not accept the applicant’s evidence that the reasons for Mr Bellew’s conviction made it difficult for him to work with or for him. The conviction occurred some years earlier and the applicant was aware of it well before his attitude to Mr Bellew underwent a major change. Those matters raised by the applicant about Mr Bellew’s conduct as a manager also significantly pre-dated his change in attitude to him. In the absence of any other evidence from the applicant which could possibly explain his conduct towards and about Mr Bellew in May and June 2013 I am prepared to accept that it is more likely than not that his change in attitude was a result of thwarted ambition as was the ‘impression’ of Mr Bramston and Mr Skipper.

[85] Clearly the applicant’s conduct became untenable immediately following the board elections and when Mr Bellew stepped aside, and Mr Skipper became the general manager. The complaints made by the applicant about Mr Bellew’s management style related to matters which occurred in the past (such as the employment of his father) or do not appear to have any substance (the complaint about the handling of Ms Lowe).

[86] It is not acceptable behaviour for a senior manager to refuse to comply with reasonable directions given by his manager. I am satisfied on the evidence of Mr Skipper and Mr Bramston that both men were making every attempt to reach a resolution of any concerns the applicant may have had about his role and responsibilities. I also accept their evidence that the applicant was less than co-operative in the process. It is clear from all the evidence that the applicant was under a mistaken belief that he could refuse to follow directions and be as obstructionist as he wished.

[87] As a senior manager, the applicant’s refusal to work constructively with other managers was a valid reason for his dismissal. If his medical condition did not allow this then he should have taken the time off provided by his practitioner and not returned until he was in a position to cope with the workplace. I accept the evidence of Mr Skipper and Mr Bellew that the applicant did not raise any matter of stress or depression until 21 June, and given the context in which it was raised (the applicant’s behaviour over the preceding weeks and his failure to respond to their overtures and offers of help), any scepticism on their part may have been understandable.

[88] While it may be that the manner in which the respondent dealt with the applicant should have been informed by his claim to have been suffering from stress at the relevant time, this does not alter the fact that there was a valid reason for termination given the applicant’s conduct and attitude.

Notified of the reason

[89] The applicant was notified of the reason for his dismissal in the letter of termination dated 11 July 2013.

Opportunity to respond

The applicant was not provided a formal opportunity to respond to the reasons for his dismissal. I accept that at least two of the matters that were relied upon in the termination letter were matters that had been raised with him by various managers over the preceding weeks and that there was an opportunity for him to explain his position to Mr Bramston on 5 July about his failure to follow Mr Skipper’s instructions and the posting of the warning letter on his door. The applicant did not take that opportunity but that was not the purpose of the meeting, as the meeting had been arranged at the applicant’s request. Nevertheless the matters were raised by Mr Bramston at the meeting and the applicant could have explained his position in relation to them had he wished to do so.

Support person

[90] As it cannot be said that there were any discussions that were held for the purpose of discussing the dismissal the question of the support person does not arise in this matter.

Unsatisfactory performance warnings

[91] While the applicant’s work performance as such was not cited as a reason for his dismissal, his conduct and attitude had been the subject of informal counselling by Mr Bramston. The applicant was also warned that failure to comply with instructions given by Mr Skipper could result in disciplinary action.

Size of the employer’s enterprise

[92] The respondent is a large company and I am satisfied that the procedures adopted in effecting the termination were not adversely affected by the size of the organisation.

Absence of dedicated human resource management specialist or expertise

[93] The respondent submitted that it had outsourced its human resource management function. It is apparent on the evidence (the termination letter was prepared and signed by the company supplying the HR expertise) that the respondent had access to dedicated human resource management expertise in dealing with the decision to dismiss the applicant.

Other matters

[94] The applicant was employed by the respondent for a period of nine years. He held a senior management position. Despite his evidence to the contrary I am satisfied that for the majority of that period the applicant enjoyed a reasonable working relationship with senior management of the company, and that the deterioration in that relationship in the months leading to the dismissal came as a surprise to his managers. I am also satisfied that the only person not making an attempt to retrieve the relationships was the applicant.

Conclusion

[95] While I have accepted that there was a valid reason for the termination, I have determined that the manner in which it occurred was procedurally unfair. The applicant should have been given a proper opportunity to respond to those matters in the letter of termination before any termination took effect. I accept that both Mr Skipper and Mr Bramston may have reached the conclusion that there was no point in continuing to attempt to have the applicant change his behaviour but, in my view, and given the fact that his employment was likely to be terminated as a result of his behaviour, the applicant should have been advised of that fact. I take the view that the applicant’s absence from the workplace on sick leave, together with his stated reasons for taking that leave, should have resulted in the respondent dealing with the termination much more carefully. Whether or not the applicant’s condition resulted in a successful workers’ compensation claim is immaterial to the question before me.

[96] In my view, despite the fact that there was a valid reason for the termination, the manner in which the termination occurred rendered the dismissal harsh and therefore, unfair. The dismissal took effect while the applicant was absent on certificated sick leave and in circumstances where he had made it clear to the respondent that he attributed his illness to stress caused by the workplace. In addition, the respondent did not clearly advise the applicant that his conduct was such that termination was being contemplated. I accept that Mr Skipper may have made remarks along these lines at the meeting on 5 July but do not consider that this was sufficient to alert the applicant, in all the surrounding circumstances, that his job was at risk. This is particularly so given that the applicant initiated the original meeting with Mr Bramston on 5 July and met with Mr Skipper at Mr Bramston’s request in an attempt to resolve the problems.

[97] The applicant was, therefore, not given a proper opportunity to respond to the respondent’s concerns about his conduct. It is clear that the human resources consultant engaged by the respondent was consulted about the intention to dismiss the applicant. It is therefore surprising that the respondent was not advised to clearly set out its concerns about the applicant in a letter and request that he show cause why he should not be terminated. A proper opportunity should have been afforded to the applicant to address the respondent’s concerns. Instead the decision was taken to summarily dismiss the applicant for serious misconduct.

[98] While the applicant’s misconduct was sufficiently serious to justify dismissal, in my view it did not amount to ‘serious misconduct’ such that summary dismissal was justified.

Remedy

[99] The applicant seeks reinstatement. I am satisfied that reinstatement is not appropriate in this case. The applicant has found employment, albeit at less pay and with less favourable conditions. Each remaining senior manager of the respondent (in what is a small senior management team) has indicated that he will not work with the applicant and, in my view, each has a legitimate reason for that stance. In all the circumstances of the case, I consider that it is appropriate to make an award of compensation in lieu of reinstatement. Section 392(2) of the Act sets out matters which should be taken into account when determining an amount of compensation. The applicant seeks 26 weeks wages in compensation if reinstatement is not to be awarded. The respondent made no submission about compensation.

[100] There was no submission that any amount of compensation that might be ordered would affect the viability of the employer’s business.

[101] The applicant had been employed by the respondent for almost nine years.

[102] It is my view that, had the dismissal not occurred in the manner it did, it is unlikely that the applicant’s employment would have continued for more than a further two months. If the respondent had adopted a proper procedure in relation to the termination it is unlikely that the outcome would have been any different and that the processes would have taken more than two months to complete. I also accept the evidence that the applicant was not happy in the workplace and had indicated to Mr Skipper an intention to leave if he gained other employment.

[103] I am satisfied that the applicant made reasonable efforts to mitigate his loss. He operated a paper route for a short time and found other permanent employment about late September, at a lesser rate of pay. In all the circumstances I do not believe that the amount I intend to award should be reduced by any remuneration earned by the applicant between the date of the termination and the date of the order.

[104] It is my intention to award as compensation, in lieu of reinstatement, an amount equal to two months of the applicant’s normal salary at termination. However, that amount will be reduced by one month on account of the applicant’s misconduct in accordance with s392(3) of the Act

[105] On the evidence, this amount will not exceed the remuneration cap at s.392(5) of the Act.

[106] An order [PR546868] giving effect to this decision is published separately.

Appearances:

The applicant in person.

Mr Skipper on behalf of the respondent.

Hearing details:

2013.

Canberra:

November 12.

 1   Exhibit S1

 2   See Exhibit S1 Attachment C

 3   Exhibit S1 at 79

 4   Exhibit S1 at 84

 5   Exhibit S1 at 131

 6   Exhibit S1 at 133

 7   Exhibit S1 at 135

 8   Exhibit S1 at 136

 9   Exhibit S1 at 144

 10   Exhibit S1 at 152

 11   Exhibit S1 at 161

 12   Exhibit S1 at 172

 13   Transcript PN 60

 14   Transcript PN65

 15   Transcript PN 74

 16   Transcript PN166

 17   Transcript PN191

 18   Transcript PN228

 19   Transcript PN446

 20   Transcript PN457

 21   Transcript PN494

 22   Exhibit A2

 23   Exhibit A2 at 7

 24   Exhibit A2 at 8

 25   Exhibit A2 at 20

 26   Exhibit A2 at 27 to 49

 27   Exhibit A2 at 42

 28   Exhibit A2 at 51

 29   Exhibit A3

 30   Exhibit A2 at 8

 31   Exhibit A2 at 34

 32   Exhibit A3 at 48

 33   Exhibit A4

 34   Exhibit A4 at 7

 35   Exhibit A5

Printed by authority of the Commonwealth Government Printer

<Price code C, PR546866>