Mr Tetteh Akpey v Perth Re Pty Ltd T/A Perth Re

[2018] FWC 5699

[2018] FWC 5699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 —Unfair dismissal

Mr Tetteh Akpey
v
Perth Re Pty Ltd T/A Perth Re
(U2018/6028)

DEPUTY PRESIDENT BEAUMONT PERTH, 27 SEPTEMBER 2018

Application for an unfair dismissal remedy – jurisdictional objection upheld - Small Business Fair Dismissal Code complied with – lawful and reasonable instruction.

[1] On 5 June 2018, Perth Re Pty Ltd (Perth Re) summarily dismissed Mr Tetteh Akpey (Mr Akpey) on the grounds of serious misconduct. Mr Akpey applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act) (the Application).

[2] Perth Re, a reinsurance company, submitted that it was a small business employer within the meaning of s 23 of the Act, having only six employees at the time of Mr Akpey’s dismissal. It raised a jurisdictional objection to the Application on the ground that it had complied with the Small Business Fair Dismissal Code (Code) with the result that Mr Akpey’s dismissal was consistent with the Code.

[3] There were various reasons provided for Mr Akpey’s dismissal. These included a refusal to carry out lawful and reasonable instructions during the course of an investigation, and acting in a wilful and deliberately aggressive manner toward Mr Rajai Wahhab, Director and General Manager of Perth Re (Mr Wahhab). It was further said that Mr Akpey had insulted and humiliated Mr Wahhab in front of colleagues, by saying that Mr Wahhab was unable to manage his company, and Mr Akpey had refused to communicate in a professional manner to Mr Wahhab.

[4] The parties expressed their view that a determinative conference was preferred. The issues requiring consideration appeared to be:

•  what was the reason (or reasons) that gave rise to the dismissal;

•  did Perth Re comply with the Code which is directly linked to the reasons that gave rise to the dismissal, how those reasons fit within the Code, and whether the employer genuinely held the relevant belief about the conduct and its impact;

•  if not consistent with the Code, what was the actual conduct of Mr Akpey based upon evidence before the Commission, and was the dismissal harsh, unjust or unreasonable (unfair); and

•  if unfair, should any remedy in the form of compensation be granted and if so how much.

[5] While it was the case that I did not find that Mr Akpey insulted, humiliated, or acted aggressively toward Mr Wahhab, I have nevertheless arrived at the conclusion that Perth Re complied with the Code in relation to Mr Akpey’s dismissal. As a consequence, Mr Akpey has not been unfairly dismissed within the meaning of s 385 and it follows that the Application must be dismissed. An order dismissing the Application is separately issued. My reasons for this decision follow.

Background

[6] Mr Akpey commenced work with Perth Re in or around 4 July 2016 as a Reinsurance Broker/Technician. His income was said to be $45,000.00 per annum, which neither party disputed. Up until 31 May 2018 his employment with Perth Re had, by all accounts, been uneventful.

[7] On 31 May 2018, Mr Akpey presented for work and found Mr Wahhab in the office. 1 Before this date Mr Akpey had informed Mr Wahhab that emails had been sent from his work email, the content of which had informed clients to deposit funds into an unknown bank account. In response to this information Mr Wahhab had reported the incident to the Australian Cybercrime Online Reporting Network and gave evidence that he changed all of the employees’ email passwords and added a two-factor authentication for email access.2

[8] Mr Akpey expressed to Mr Wahhab that he had not sent the emails although they had been sent from his work email account. Mr Wahhab instructed Mr Akpey not to log onto his email and later invited Mr Akpey into his office to enable Mr Akpey to show him the emails with the unknown bank account details. 3

[9] During the day of 31 May 2018, Mr Wahhab initially gave Mr Akpey some work to do and later in the day he asked Mr Akpey for his personal email address to enable the installation of an anti-virus program on Mr Akpey’s computer. 4 Mr Wahhab instructed Mr Akpey to install the anti-virus program on his computer and to do the same on his colleague’s computer.5

[10] Subsequent to installing the anti-virus program, Mr Wahhab called Mr Akpey into a meeting room and asked him about the unknown bank account details. 6 According to Mr Wahhab and Mr Akpey, Mr Firas Wahhab, fellow Director of Perth Re (Mr Firas), attended the meeting. Neither Mr Akpey nor Mr Wahhab called Mr Firas to give evidence in the proceedings.

[11] Mr Akpey said that in response to Mr Wahhab’s enquiry he informed him that he would rather put his statement in writing than answer the question verbally. 7 Mr Akpey’s evidence is that Mr Wahhab started to shout at him that he should answer the question.8 Mr Akpey said that Mr Wahhab and Mr Firas started yelling at each other in Arabic and Mr Firas subsequently left the meeting room.9 According to Mr Akpey, Mr Wahhab again asked him to tell him about the unknown bank details and again Mr Akpey said that he would want to put his statement in writing.10 Mr Akpey said that Mr Wahhab continued to yell and asked whether Mr Akpey knew what a Microsoft Server was, to which Mr Akpey responded he did not know. Mr Akpey’s evidence was that Mr Wahhab then said he was going to sack Mr Akpey because of the emails.11 The discussion is said to have ended when Mr Firas re-entered the meeting and instructed Mr Akpey to leave and accompanied him to a nearby bar or cafe.12

[12] When asked whether he had informed Mr Wahhab for the reason why he declined and thereafter continued to decline, to provide a verbal response to Mr Wahhab’s question about the bank account details, Mr Akpey’s evidence was that he had not. 13 Further, Mr Wahhab and Mr Akpey were in agreement that at no time did Mr Wahhab accuse Mr Akpey of causing or producing the ‘fraudulent’ emails.

[13] Mr Wahhab’s account of the meeting on 31 May 2018 differs to that of Mr Akpey because his account frames Mr Akpey as the antagonist. According to Mr Wahhab, within 20 seconds of opening the meeting Mr Akpey began shouting and hitting the table and subsequently pointed his finger at his face. 14 Mr Wahhab said that Mr Akpey’s behaviour was completely unacceptable especially in front of other staff members, but it is not apparent that anyone else was in the meeting room at the time, with the exception of Mr Firas.15

[14] Mr Wahhab said that he was unable to calm Mr Akpey down and that he had tried to make Mr Akpey understand that he wanted to solve the problem by going through it in person. Mr Wahhab was of the view that it was unnecessary for Mr Akpey to put it in writing when the matter could simply be discussed in person.

[15] Both Mr Wahhab and Mr Akpey were in agreement that Mr Firas walked Mr Akpey out of the meeting room and took him to a local pub or café. Mr Akpey said that he was crying and was most upset. 16 On Mr Akpey’s return, Mr Wahhab instructed Mr Akpey to take the day off and later in the day Mr Wahhab said that he sent Mr Akpey a text instructing him to have the next day off and return after the long weekend.17

[16] Mr Akpey confirmed that he received a text from Mr Wahhab that read ‘Tetteh as discussed earlier, you are on paid leave. See you in the office on Tuesday. Rajai’. 18 Mr Akpey said that his response to Mr Wahhab’s text was ‘Thanks Rajai. Please send me this message to my personal email as we don’t communicate employment issues through text. I would also appreciate if you can explain the reason for such action and confirm that is not part of my mandatory leave….’.19

[17] Mr Wahhab’s explanation for his instruction to Mr Akpey not to attend work was that he observed that Mr Akpey was angry and he was not acting right. When asked whether he had provided reasons for the instruction in the text message, Mr Wahhab said that he had not but he had observed that Mr Akpey was angry, not acting right or behaving right and needed to go home and settle down.

[18] Mr Wahhab’s evidence was that he scheduled the meeting on 5 June 2018 with the hope that Mr Akpey would regret his behaviour and Mr Wahhab would give him a second chance. 20

[19] Mr Akpey said that he presented for work on the morning of 5 June 2018 but was yelled at by Mr Wahhab to go home and return at 2.00pm. Mr Wahhab denies yelling. Mr Akpey said that he complied with that instruction, returned at 2.00pm and met with Mr Wahhab. 21 Mr Akpey said that Mr Wahhab started the meeting by asking him to explain his behaviour on 31 May 2018. Mr Akpey said that he responded by stating that ‘I was having a conversation with him when his brother entered the room and asked me to go out with him’.22 Mr Wahhab then asked Mr Akpey why he had failed to assist the company in investigating an issue with regards to his email account.23 Mr Akpey said that he responded by stating to Mr Wahhab that he was ‘willing to assist the company but only in writing’.24

[20] According to Mr Akpey it was at this point that Mr Wahhab started yelling at him and the following dialogue occurred:

Rajai started yelling at me and pointing his finger at me saying that I did not allow him to talk to me about the issue or send an email to me about the issue. He said that this was his kingdom and that he was the ruler. Rajai said he decides the way things are run in Perth Re. I kindly told Rajai that if he is yelling at me to get me to respond verbally I would not. I would prefer to put my statement in writing. Enraged at my statement, Rajai then told me to go back to my desk and that he would call me in a few minutes to go through with me the status of my employment and if there is anything I wanted to say about my misconduct on Thursday, 31 May, 2018, I am welcome to discuss it with him. In my reply, I kindly told him again, I would prefer to put my statement in writing. 25

[21] Mr Wahhab’s evidence was that he was surprised because Mr Akpey denied wrongdoing and then proceeded to shout and act aggressively. 26

[22] Mr Akpey said that Mr Wahhab proceeded to inform him what it was that he had done wrong, regarding his conduct in the meeting on 31 May 2018. According to Mr Akpey, Mr Wahhab said that his tone was inappropriate, he had not allowed Mr Wahhab to speak, or send or drop him an email, and that he had jumped to conclusions on the matter. Apparently, while Mr Wahhab explained this to Mr Akpey, Mr Wahhab was shouting and pointing his finger. 27

[23] The discussion is said to have continued with Mr Wahhab reportedly making comments to Mr Akpey that ‘he was going to deal with me in his own way’. Mr Wahhab instructed Mr Akpey to return to his desk and that he would call him back to the meeting room in a few minutes. 28 Mr Wahhab subsequently called Mr Akpey back to the meeting room and informed him that because Mr Akpey was disrespecting him by not following his orders in the investigation he was going to terminate his contract effectively immediately.29

[24] Subsequent to the meeting there was discussion between Mr Akpey and Mr Wahhab concerning the return of company property, and Mr Akpey asked for $100.00 for a taxi to go home and collect the company mobile and keys. 30 Mr Akpey admits that he told Mr Wahhab that he could not manage the company at that point.

[25] Mr Wahhab gave evidence that on 5 June 2018, he met with Mr Akpey to discuss both the emails and Mr Akpey’s conduct on 31 May 2018. Mr Wahhab said that Mr Akpey denied any wrongdoing insisting what he had done was normal, and then he began to shout and act aggressively toward Mr Wahhab. 31 Mr Wahhab said that he asked Mr Akpey for his assistance to work and solve the matter but Mr Akpey asked for everything to be put in writing.32 Mr Wahhab said that he considered when it came to problem-solving the initial step was to have a conversation with the employee to address the issue but Mr Akpey had refused to have a verbal conversation in the meeting on 31 May and 5 June 2018.33 Mr Wahhab said that he ended the meeting by asking Mr Akpey to return to his desk and not perform any tasks.34 Mr Wahhab considered what to do next and subsequently called Mr Akpey back into his office and terminated his employment for serious misconduct.

[26] Mr Spiros Scliros (Mr Scliros) was working as an intern with Perth Re on 5 June 2018. He gave evidence that he heard an interaction between Mr Akpey and Mr Wahhab where their voices were getting louder in a meeting room. He could not remember the date of the meeting. At some point the meeting room door opened and he observed Mr Akpey was rising and heard him state that Mr Wahhab did not know how to run his business. Mr Scliros heard Mr Wahhab tell Mr Akpey to sit at his desk and not do any work. After that occurred Mr Scliros’ recollection was that Mr Wahhab told Mr Akpey he could go home and that Mr Akpey asked for $100.00.

[27] Ms Amanda Dudgeon, a former employee of Perth Re (Ms Dudgeon), gave evidence that she recalled there being a meeting between Mr Akpey and Mr Wahhab on a Tuesday afternoon in which voices were raised.

Initial matters

[28] Section 396 provides that, before considering the merits of an application for unfair dismissal remedy order, the Commission must determine some other initial matters which include:

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

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

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

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

Small Business Fair Dismissal Code

[29] A person has not been unfairly dismissed where the dismissal is consistent with the Code. It is useful to set out s 388:

388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small

Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair

Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair

Dismissal Code in relation to the dismissal.

[30] The Code is only relevant if the employer is a small business as defined in s 23.

[31] The Code provides:

Summary Dismissal

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

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[32] The ‘Summary Dismissal’ section of the Code clearly applies to dismissals that have ‘immediate effect’ as that term is understood by reference to the decision in Ms Li Li Chen v Australian Catering Solutions Pty Ltd T/A Hearty Health, 35 and are not dismissals on notice.36

[33] Without being exhaustive, in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services (Ryman) the Full Bench provided a useful synopsis of the proper approach to the construction and application of the Summary Dismissal aspect of the Code and its interaction with Regulation 1.07 of the Fair Work Regulations 2009 (Cth) (Regulations).

[34] In Ryman the Full Bench considered the meaning of ‘summary dismissal’ and said that it referred to a dismissal without notice arising from ‘a breach of an essential term of the employment contract, a serious breach of a non-essential term or the contract, or conduct manifesting an intention not to be bound by the contract in the future on the part of the employee’. 37

[35] However, it is not the case that under the Code the Commission has to be satisfied that serious misconduct was the basis for the dismissal. 38 Rather, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal and one must also consider whether that belief was based on reasonable grounds.39 This element, which has been described as the second element,40 incorporates the concept that the employer has carried out a reasonable investigation into the matter.41 It is not necessary to determine whether the employer was correct in the belief that it held.42 Whether the employer had ‘reasonable grounds’ for the relevant belief is of course to be determined objectively.43

[36] The focus on ‘serious misconduct’ must be taken as identifying the subject matter and it appears to be accepted that this term gleans its meaning from s 12 of the Act and thereafter Regulation 1.07. 44

[37] In applying these requirements, I must also have regard to the procedural matters highlighted within the Code.

[38] If Mr Akpey’s dismissal was consistent with the Code, it cannot be considered to be unfair within the meaning of the Act. If it is inconsistent with the Code then I must turn my attention to whether the dismissal is ‘unfair’ as that term is understood in s 385 and s 387.

Agreed matters

[39] I am satisfied that Mr Akpey was protected from unfair dismissal 45 and that his Application was made within the required period as prescribed in s 394(2).

[40] Having considered the evidence, I am also satisfied that Perth Re is a small business employer as defined in s 23 observing that Mr Akpey did not advance an argument to the contrary.

[41] There was no dispute that Mr Akpey had not received notice on termination but rather was summarily dismissed on 5 June 2018.

Matters in dispute

[42] The initial issue is whether Perth Re was compliant with the Code at the time of Mr Akpey’s dismissal. Given Mr Akpey’s dismissal was effective immediately the focus quite rightly rests on the Summary Dismissal aspect of that Code. If Mr Akpey’s dismissal was not compliant with the Code, then attention will turn to whether his dismissal was ‘unfair’.

[43] Perth Re advanced it instructed Mr Akpey to participate and assist in the investigation of an alleged unauthorised use of the work email affecting emails sent from Mr Akpey’s work account.

[44] Mr Akpey submitted that he did participate and assist in the investigation, and did not decline to respond to Mr Wahhab’s question but simply asked to put his response in writing. Mr Akpey advanced that he doubted Mr Wahhab’s instruction regarding the emails was lawful and reasonable, because it potentially exposed him to great liability and criminal liabilities. Further, in the insurance industry it was customary practice if exposed to any form of liability to put a statement in writing.

[45] Mr Akpey denies that his behaviour, as purported by Mr Wahhab, was aggressive, intimidating or that he yelled at Mr Wahhab. Mr Wahhab’s version of events paints a picture to the contrary.

Compliance with the Code

[46] Mr Wahhab cites several reasons for Mr Akpey’s dismissal but in short the reasons arose from Mr Akpey’s conduct toward Mr Wahhab on 31 May 2018 and subsequently on 5 June 2018.

[47] On 31 May 2018, Mr Akpey is said to have engaged in aggressive and intimidating conduct, and failed to follow a lawful and reasonable instruction that was given twice. On 5 June 2018, Mr Akpey similarly is said to have engaged in conduct that was aggressive, intimidating and insulting, and declined to answer questions verbally, insisting that any response be placed in writing.

[48] Reliance on the Code for a summary dismissal requires the employer to hold a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. The belief must be based on reasonable rounds, which are to be determined objectively.

[49] The consideration of whether an instruction is lawful and reasonable will usually fall within the ambit of determining whether there is a valid reason for dismissal. But, consideration of whether Mr Wahhab’s instruction was lawful and reasonable is a relevant factor here. Mr Wahhab’s belief that Mr Akpey’s conduct was sufficiently serious to justify immediate dismissal must be based on reasonable grounds and those grounds are be determined objectively.

[50] Mr Akpey held the view that the instruction was not lawful and reasonable because it exposed him to criminal liability. However, Mr Wahhab submitted it was customary to verbally enquire with an employee concerning a matter that arose in an attempt to initially problem solve an issue.

[51] An employee’s obligation to comply with a lawful and reasonable direction issued by the employer is uncontroversial. The test for whether such an instruction is reasonable and lawful is set out in R v Darling Island Stevedoring and Lighthouse Ltd; Ex parte Halliday and Sullivan 46 where Dixon J stated:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. Accordingly, when the award was framed, the expression “reasonable instructions” was adopted in describing the employees' duty to obey. But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. 47

[52] It has been held that the failure to comply with an unreasonable direction does not provide a valid reason for the termination of a person's employment. In Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries 48 Beazley J stated:

In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct. 49

[53] Conversely the failure to follow a lawful instruction which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee's employment. 50

[54] Mr Wahhab’s instruction related to the subject matter of employment. Mr Wahhab said he considered it important to chat to Mr Akpey about the email so he could draw from Mr Akpey information that could help investigate the matter and pin point when and where the issue started. 51 Mr Wahhab said that he wanted Mr Akpey’s assistance so he could provide facts to the police about any potential hackers.52

[55] From the outset it was apparent that Mr Akpey remained firm in his resolve that he was not going to respond to Mr Wahhab’s instruction to provide a verbal response. However, it was equally apparent that at no time did Mr Akpey explain to Mr Wahhab the rationale for his resolve. 53 When asked whether he explained to Mr Wahhab the reason why he wanted to provide responses in writing to the questions asked, Mr Akpey stated, ‘No. He did not want to listen to me. His insistence was I should just answer his questions’.54
[56] While Mr Akpey may have had sound reason to decline to respond verbally, albeit shortly I find that not to be the case, at no point did Mr Akpey convey to Mr Wahhab why he would only respond in writing. I am unconvinced that an opportunity did not arise for Mr Akpey to provide to Mr Wahhab the rationale behind his insistence to respond in writing.

[57] Mr Akpey gave evidence that in the meeting on 31 May 2018 he declined to provide a response verbally although he had been instructed twice to do so. It was after the second refusal to provide a response verbally that Mr Akpey states that Mr Wahhab yelled at him that he would sack him because of the emails. It was therefore not the case that potential disciplinary action was the impetus behind Mr Akpey’s stance.

[58] Mr Akpey’s evidence was that he was concerned about liability with particular reference to criminal liability and that justified his refusal to respond verbally. In the insurance industry, it was usual, according to Mr Akpey to always respond in writing.

[59] However, while it was the case that Mr Wahhab lodged a report to the Australian Cybercrime Online Reporting Network, 55 Mr Akpey was unaware of this at the relevant time. Further, both Mr Akpey and Mr Wahhab acknowledged that at no time did Mr Wahhab accuse Mr Akpey of producing the ‘fraudulent’ emails. There was incontrovertible evidence before me that the business was one with a limited number of employees, it had no internal human resources department and a history whereby employment matters had always been addressed verbally. Further, Mr Wahhab’s investigation was at a preliminary point when Mr Akpey was questioned about the email on 31 May 2018. At this point and at the later meeting on 5 June 2018, there was no evidence to show that Mr Akpey was potentially exposed to liability, criminal or otherwise. Mr Wahhab’s questioning about the emails was prematurely frustrated by Mr Akpey’s refusal to respond verbally.

[60] Much was made of there being aggression, yelling and intimidation by both Mr Wahhab and Mr Akpey in the meeting on 31 May 2018. With the exception of Mr Firas, there appears to have been no other witness to the meeting, and Mr Firas was not called by either party to give evidence in the proceedings. From what has been described by both Mr Wahhab and Mr Akpey, I am left with little doubt that the interactions between them became volatile, fuelled by their respective frustration. Mr Akpey described that he had been crying when accompanied by Mr Firas to the pub/café post the meeting. Mr Wahhab was clearly perplexed that a matter he thought could simply be discussed in person had escalated to one which he perceived to be a time consuming process.

[61] On 5 June 2018, Mr Akpey again declined to respond verbally to enquiry about the emails and denied any wrong doing concerning his conduct on 31 May 2018. Both parties report that their respective behaviour was intimidating and there was shouting. On this occasion both Mr Scliros and Ms Dudgeon gave evidence of hearing raised voices although neither could discern what was said in the meeting room. It is evident that Mr Wahhab asked Mr Akpey to depart the meeting room and sit at his desk for a short period. It was Mr Scliros’ evidence that as Mr Akpey went to return to his desk he stated words to the effect of ‘you don’t know how to run your business’. 56

[62] As observed, it is not the case that under the Code the Commission has to be satisfied that serious misconduct was the basis for the dismissal. 57 In assessing whether there was compliance with the Code, it is necessary first to determine whether Mr Wahhab genuinely held the belief that Mr Akpey’s conduct was sufficiently serious to justify immediate dismissal.

[63] At the time of dismissal, I am satisfied that Mr Wahhab held a belief that he had provided instructions to Mr Akpey to respond verbally to his question about the emails, and on three occasions Mr Akpey refused to do so.

[64] When considering the genuineness of Mr Wahhab’s belief an objective assessment is required. It is important to consider that at no time did Mr Akpey alert Mr Wahhab to the reason for his refusal to provide a verbal response. It was not incumbent on Mr Wahhab to have to accept a written response. Mr Wahhab was permitted to determine whether the response was to be provided verbally, in writing or both. There was no evidence to indicate illegality or that Mr Akpey would be exposed to criminal or other liability. Further, there was no obligation upon Mr Wahhab to enquire why Mr Akpey was non-compliant with the instruction in the first instance. Perth Re was a small business accustomed to addressing issues verbally and as of 31 May 2018 the investigation into the emails as far as Mr Akpey was implicated, was at its preliminary stage. There had been no accusation directed at Mr Akpey that he had caused the emails to be sent.

[65] I am satisfied that Mr Wahhab believed his instructions were lawful and reasonable as far as they concerned the direction to Mr Akpey to respond verbally to questions about the emails. Regarding the meeting on 5 June 2018, I am satisfied that Mr Wahhab held a genuine belief that his instruction on 31 May 2018 regarding responding to questions about the emails was lawful and reasonable, and that Mr Akpey on 5 June 2018 had again refused to provide a verbal response. Mr Akpey stated ‘I kindly told Rajai that if he is yelling at me to get me to respond verbally I would not. I would prefer to put my statement in writing’. 58 While it was the case that Mr Akpey expressed it was a ‘preference’ to provide a statement in writing the evidence presented showed that Mr Akpey was adamantly refusing to provide a verbal response.

[66] Under the Code a ‘Summary Dismissal’ is said to be a dismissal without notice in circumstances where there has been a breach of an essential term of the employment contract. It may have been the case that Mr Akpey held the view that he was not refusing to assist with the investigation by insisting on providing a written response and that he had cooperated with all other requests. However, under the Code the examination required is whether at the time of dismissal Mr Wahhab held a genuine belief that Mr Akpey’s conduct was sufficiently serious to justify immediate dismissal.

[67] The evidence presented was undoubtedly coloured by emotive tension. I am unconvinced that Mr Wahhab presented calmly on 5 June 2018 as purported in his witness statement, given the evidence of Ms Dudgeon and Mr Scliros. The meetings on 31 May 2018 and 5 June 2018 struck me as ones where matters escalated to a heated confrontation. As to whether there is any merit in Mr Wahhab’s assertions that Mr Akpey threatened, intimidated, touched him or humiliated him, I am not satisfied that is the case.

[68] Mr Wahhab faced circumstances where it appeared to him that the integrity of his information technology system had been impacted. Understandably, he sought information with a view to resolving the issue expeditiously. He gave instructions for Mr Akpey to verbally respond to questions about the emails. I am satisfied he genuinely believed the instructions to be lawful and reasonable and that there was sound basis for him to hold a view that Mr Akpey was obliged to obey them. After all an obligation to obey all lawful and reasonable instructions is one of the most important obligations in the employment relationship. Mr Akpey was required to cooperate with the investigation absent the placement of a condition on that cooperation. It is true that Mr Akpey cooperated at other times during the course of events, but with regard to the provision of a verbal response this was not forthcoming and no plausible justification was provided for the refusal. There was then, a sound basis for Mr Wahhab to hold the belief that Mr Akpey had breached an essential term of his employment contract and Summary Dismissal was warranted.

[69] The Code requires the small business employer to afford procedural fairness to the employee during a disciplinary process. On 5 June 2018, Mr Akpey was provided with the opportunity to explain his conduct in the meeting of 31 May 2018. While the notification concerning the meeting on 5 June 2018 did not specify that it was a disciplinary meeting, it was clear that the meeting was to discuss the situation that had arisen concerning the emails and Mr Akpey’s refusal to provide a verbal response. Any deficiency in the notification of the meeting on 5 June 2018 was insufficient to alter my finding that procedural fairness was afforded.

[70] Once Mr Wahhab heard from Mr Akpey, he took some time, albeit short, to consider what steps to take next. He met with Mr Akpey for a third time and Mr Akpey stated he was informed ‘I was disrespecting him by not following his order in the investigation he was going to terminate my contract… effective 5 June 2018’.

[71] In the circumstances set out above, I am satisfied on the evidence that Perth Re complied with the Code in relation to the Mr Akpey’s dismissal. As a consequence, the Applicant has not been unfairly dismissed within the meaning of s 385 of the Act.

[72] It follows that the Application must be dismissed. An order dismissing the Application is separately issued.

DEPUTY PRESIDENT

Appearances:

Mr T Akpey, as the Applicant.

Mr R Wahhab, for the Respondent

Hearing details:

2018.

September 10.

Printed by authority of the Commonwealth Government Printer

<PR700272>

 1   Witness Statement of Tetteh Akpey (Exhibit A4) [16].

 2   Internal incident report with attachments (Exhibit R3).

 3 Exhibit A4 [16].

 4   Ibid.

 5   Ibid.

 6 Exhibit A4 [17].

 7   Ibid.

 8   Ibid.

 9   Ibid.

 10   Ibid.

 11   Ibid.

 12   Ibid.

 13   Transcript PN728.

 14   Witness Statement of Rajai Wahhab (Exhibit R2).

 15   Ibid.

 16 Exhibit A4 [18].

 17   Exhibit R2.

 18   Exhibit A4 [20]; Exhibit A1.

 19 Exhibit A4 [20].

 20   Exhibit R2.

 21 Exhibit A4 [23].

 22   Ibid.

 23   Ibid.

 24   Ibid.

 25 Ibid [24].

 26   Exhibit R2.

 27 Exhibit A4 [25].

 28 Ibid [26].

 29 Ibid [27].

 30   Ibid.

 31   Exhibit R2.

 32   Ibid.

 33   Ibid.

 34   Ibid.

 35   [2017] FWC 3930 [62]-[64].

 36   Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2015] FWCFB 5264 [36].

 37 Ibid [27].

 38   Ibid [37] – [38]; Grandbridge Limited v Mrs Diane Wiburd[2017] FWCFB 6732 [28].

 39   Pinawin T/A RoseVi.Hair.Face.Body v Domingo[2012] FWAFB 1359.

 40 Ibid [29].

 41   Ibid [29] cited in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264 and referred to in Grandbridge Limited v Mrs Diane Wiburd[2017] FWCFB 6732 [39].

 42   Ibid.

 43   Ibid.

 44   Grandbridge Limited v Mrs Diane Wiburd[2017] FWCFB 6732 [28]; Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264 [37].

 45 Exhibit A4 [27].

 46 (1938) 60 CLR 601.

 47   Ibid p 621-2.

 48 (1995) 61 IR 439 .

 49   Ibid 451.

 50   Cox v South Australian Meat Corporation (1995) 60 IR 293..

 51   Exhibit R2.

 52   Ibid.

 53   Transcript PN728.

 54   Transcript PN728.

 55   Exhibit R3.

 56   Witness Statement of Spiros Scliros Exhibit R1.

 57   Grandbridge Limited v Mrs Diane Wiburd [2017] FWCFB 6732 [28].

 58 Exhibit A4 [27].