Mr Theodore Samaras v BoysTown

[2015] FWC 1762

[2015] FWC 1762

FAIR WORK COMMISSION

DECISION

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

Mr Theodore Samaras
v
BoysTown
(U2014/15031)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 18 MARCH 2015

Summary: unfair dismissal - various counts of forgery in relation to client signature approvals - whether conduct warranted dismissal.

[1] This decision concerns an application by Mr Theodore Samaras under s.394 of the Fair Work Act 2009 (“the Act”) in which Mr Samaras is seeking a remedy in relation to his dismissal from BoysTown on 24 October 2014.

[2] Mr Samaras was provided with a letter of termination on 27 October 2014, under the name of Ms Tracy Adams, Chief Executive Officer of BoysTown. The letter of termination read relevantly as follows:

Further to your meeting held with Ann Chandra (Acting Regional Manager) and Kerry-Anne McDavitt (Human Resources Advisor) on Friday 24 October 2014, the decision was made to terminate your employment based on misconduct including:

• Your admission to multiple (13) counts of forged client signatures on client documentation across three (3) separate clients.



• Lack of honesty in disclosing the forgeries prior to discovery presents a breach of BoysTown values and behaviours relating to integrity, honesty and accountability.

Furthermore, serious concerns were raised regarding your ongoing compliance with your case management practices with BoysTown clients.

As a result, your employment was terminated effective from Friday 24 October 2014. Your final pay will include any outstanding hours for this pay period, three weeks salary in lieu of notice as per the BoysTown enterprise bargaining agreement, and any accrued entitlements (annual leave or RDO hours). Your final pay will be processed by Wednesday 29 October 2014.

Mr Samaras’ claims - in summary

[3] Mr Samaras gave evidence that he had been employed by BoysTown for some 3 years and eight months prior to his dismissal. He was employed within the Youth Connections program, in which he assisted young people who were at risk of disengaging from school, as he put it.

[4] Mr Samaras worked in a team of some six people. That team was managed by Ms Kelli Hewton.

[5] Mr Samaras claimed that the work environment had deteriorated under Ms Hewton’s management and had become toxic and stressful owing to her management style.

[6] In the course of what may have been a routine audit in September 2014, Mr Hewton, it appears, became aware that there were discrepancies in Mr Samaras’ reporting. It appears the concerns identified by Ms Hewton were initially conveyed to Mr Samaras in a telephone call at the time.

[7] Mr Samaras claims that when the issues were raised with him, initially he admitted promptly that he had closed a number of client files by falsely signing the signatures of the three clients involved.

[8] A further meeting was conducted on 15 October 2014.

[9] At that meeting (at which Ms Kerry-Anne McDavitt (the HR Advisor) was also in attendance), particulars of the allegations were put to Mr Samaras in writing. Those allegations included the following:

1. It is alleged that you falsified client signatures on client program documents.

2. Breached compliance requirements in maintaining program documents.

3. Have consistently not met practice standards in your casework across Balmoral State High School, Yeronga State High School, and Calamvale Community College.

4. Breached compliance requirements and BoysTown practices in the use of YATMIS and BCIMS: a report going back to June 2014 shows a pattern of you not completing the required YATMIS and BCIMS client entries and actions.

[10] Documentation in relation to the 4 above allegations was provided to Mr Samaras.

[11] The correspondence of 15 October 2014 went on to state that:

Boystown holds serious concerns regarding the described conduct.

• Not in line with BoysTown Values or Behaviours



• Raises concerns regarding honesty, integrity and accountability



• Compliance breaches impact Boystown's ability to meet our contractual obligations with funding providers. (sic)

[12] Mr Samaras claimed that Ms Hewton had also “cobbled [...] together a retrospective complaints dossier for the purpose of supporting my termination.”

[13] Mr Samaras defended his position by claiming that various late data entries in relation to files had never been a significant issue in the organisation. Ms Hewton had made some communications to the team as a whole about the need to maintain timely data entry procedures but bought her concerns to him (specifically) in relation to his practices on one occasion only.

[14] Mr Samaras also argued that he did not consider forging the clients’ signatures in the circumstances as warranting serious sanction. He was closing the files for archiving; the action occurred on one day (during the course of which he had been under pressure); and in any event he had obtained the verbal signatures (of most) of the parents or guardians.

[15] Mr Samaras claimed that his performance record gave no suggestion of a pattern of conduct. Indeed, Ms Hewton - Mr Samaras claimed - had stated in his performance report that Mr Samaras occasionally needed direction to update (his files) “but is always quick to amend this.”

[16] Mr Samaras generally argued that there had been an absence of proper management practices and support in relation to the performance of work at BoysTown, for which Ms Hewton principally appears to have been responsible.

[17] The documentation led in the proceedings indicated that Mr Samaras was given an opportunity to respond to the concerns raised by Ms Hewton. On 19 October 2014 Mr Samaras replied to the claims made against him (on 15 October 2014) in the following (edited) manner:

I am truly sorry for the situation I have created through my act of stupidity.

At no point did I mean to place BoysTown in this position. I had no intention of benefiting from this other than completing client files. It was simply a stupid act of laziness on my behalf at the time.

Firstly I am so sorry to Kelli my coordinator. I love my position within this team and have always praised Kelli’s professionalism and her support as a manager and a friend. Kelli I am embarrassed that I have let you down, I’m so very sorry.

When Kelli asked me if I have done this I told her the truth and asked if I should contact the Young Person and acquire their signature. I was told that it was with HR and I should not do anything towards correcting this issue.

I feel the need to beg for forgiveness, at this act I have done is not the sum of who I am as a worker or as a person. Youth work has for-filled me professionally and I honestly love my job and working for BoysTown.

I beg you to please understand that it was stupid laziness while completing files, not me trying to profit or mistreat our clients or mislead BoysTown.

While completing so many files due to the Youth Connections Program nearing its end, I took the easy way when I noticed incomplete forms.

Although the forms were incomplete, I always spend quality time with all my clients to assist them the very best of my ability over months and years with their different issues and situations. I have never given up on a young person ever.

The thought of being dismissed for this is the worst feeling, and I am kicking myself over it day and night. Such a stupid thing that could have been fixed so easily. I have been so irresponsibly stupid and I am so truly sorry.

In regards to the entry of data over the past six months, I agree I have been behind at times, but I believe I have tried to complete my entries by the end of each week or month when information was needed to be assessed. This is something I can correct immediately and will not allow to happen again [...]. (sic)

[18] Mr Samaras went on in his letter to indicate that he had worked as a youth worker for over nine years and wished to continue to do so.

[19] A further performance management meeting was held on 22 October 2014. The evidence led by BoysTown included a copy of the record of this meeting. That record indicated that Mr Samaras had agreed that he had committed the breaches identified by BoysTown:

Theo advised that he was truly sorry, acknowledged he did the wrong thing. [...] Theo confirmed that Yes he acknowledged [the breaches] and he was very sorry. (sic)

[20] Mr Samaras was offered a final opportunity to put anything to his employer but he claimed “he had nothing” else to add.

[21] Despite Mr Samaras’ response to the above claims in which he apologised for his conduct and sought the goodwill of his employer to overlook the conduct, following his dismissal his perspective on BoysTown and Ms Hewton underwent a change.

[22] Mr Samaras gave evidence in the context of his unfair dismissal application that funding for BoysTown was subject to “successful outcomes” and the organisation manipulated the circumstances to its own benefit. Mr Samaras claimed that he had been instructed “to be creative” and to “think outside the box” when finalising client management outcomes. Mr Samaras argued that this was nothing more than a subtext for a “lie.”

[23] Mr Samaras said that he had been instructed by Ms Hewton to nominate certain migrant children who had been encountered at a swimming competition as being at risk of disengaging from school, even though there was no evidence that they were so disposed. That is, Ms Hewton had suggested that BoysTown fabricate demand for the program for which they were being funded.

[24] Mr Samaras also gave evidence that he had witnessed Ms Hewton instruct another employee to claim false clients in order to generate more funding. Mr Samaras went on to claim that Ms Hewton had also often “discussed another youth worker with BoysTown also claiming outcomes in vast numbers to engage students in [a particular program]” in order to attract funding.

[25] Mr Samaras also claimed that the team atmosphere had been “fractured”; exhibited a “bullying culture” under Ms Hewton; and was “toxic”. In this regard Mr Samaras contended that a special book had been maintained in the workplace that was a record of bullying conduct carried out against particular employees. Ms Hewton was the driving force behind this culture, according to Mr Samaras.

[26] BoysTown was not able to rebut Mr Samaras’ allegations so far as they involved Ms Hewton as Ms Hewton did not appear in these proceedings, as I will further discuss below.

[27] Mr Samaras also claimed that he had contacted the relevant funding body in order to ascertain whether or not his conduct had jeopardised funding. Mr Samaras claimed the funding body confirmed that he had not put the funding at risk.

[28] Mr Samaras also argued - in the context I think of his position that the transgressions did not warrant dismissal - that he was not stood down from work once the allegations had been made. He contended that he had been permitted to continue to access confidential documents despite BoysTown’s concerns with his conduct.

[29] A number of further claims were made by Mr Samaras in relation to utilising redundancy payments to induce or coerce favourable statements from employees, and using dismissal actions as a means of offsetting budgetary constraints. But none of these were matters that went directly to the circumstances affecting his dismissal.

[30] Finally, an email from an employee who had ceased employment with BoysTown in September 2014 formed part of the evidence in this matter. That former employee’s name was Mr Fred Lemalu. Mr Lemalu’s evidence, as it was, constituted an email that had been forwarded to Mr Samaras and was headed, “To to whom it may concern”. The email read relevantly as follows:

I would like to confirm that I have read Theodore’s submission in its entirety and agree that the statement is true and correct.

[31] Mr Lemalu’s viva voce testimony was not to this exact extent. Mr Lemalu in actuality agreed with Mr Samaras as to the general conduct in the East Brisbane office but disagreed that there was any general practice of forging signatures on client files. He expressly commented that he himself had never undertaken such a practice.

[32] Mr Lemalu also claimed that there was an emphasis in BoysTown on obtaining results but expressed some uncertainty as to whether this was a practice that could be described as something that could be said to be unethical or illegal.

BoysTown’s claims - summary

[33] BoysTown sought to rebut the claims made by Mr Samaras through the evidence of Ms Hewton.

[34] But while Ms Hewton provided a written statement in these proceedings, she did not appear to provide sworn testimony in respect of that statement. An order to appear was issued prior to the commencement of the proceedings, but Ms Hewton did not appear even though an opportunity was made available to her to give evidence on the second day of the proceedings.

[35] I am not able to give any weight to Ms Hewton’s written statement, absent having heard her claims tested under cross examination.

[36] Ultimately, it was claimed that Mr Samaras’ conduct was in “serious breach of compliance” with BoysTown’s protocols and organisational values which are meant to reflect a model for young boys.

[37] In this context, the BoysTown Code of Conduct sets out a range of values to which employees are intended to give effect. These include such values as integrity, diligence and confidentiality.

[38] The BoysTown Code of Conduct also requires employees to give effect to prescribed standards of professional skills and performance. But these are rather amorphous in nature (such as the obligation to “contribute to the achievement of best practice and continual improvement in all aspects of our work”).

[39] The BoysTown Code of Conduct is also summarised in a further document “Working With Us”, with which Mr Samaras expressed general familiarity.

[40] Another document, “Being BoysTown” further articulates the core values in a summary manner. Mr Samaras was familiar with this document as it had been distributed to staff.

[41] Ms Samaras agreed under cross examination that his conduct in forging the signatures was inconsistent with the Code of Conduct.

[42] The contract of employment to which Mr Samaras was bound also prescribed certain duties, including:

BoysTown observes various human resource and administration policies and procedures. These policies and practices are varied from time to time by management of BoysTown. All employees are expected to comply with the policies and procedures. Policies and procedures pertaining to your work area and function should be sought from your manager.

[43] The Position Description for Mr Samaras’ position also indicated that he was required to:

Maintain client records

[44] The Youth Connections Program Guidelines oblige a youth worker to complete the relevant client registration consent forms which attest to the voluntary participation of the relevant young person, the awareness of the parent or guardian in respect of such participation and the undertaking to maintain privacy to a standard consistent with the Privacy Act 1988. The Youth Connections Program Guidelines set out the circumstances in which written consent can be substituted for by verbal consent.

[45] The Ethical Code and Practice Policy in Client Service Delivery training materials appear to reinforce the Ethical Code and Practice Policy in Client Service Delivery. This document sets out various expected behavioural standards in relation to providing professional services and interacting with clients. It does not speak specifically to the case in hand other than by setting some broad ethical frameworks such as maintaining “high-quality practice” by demonstrating “competence, reliability, responsible behaviour” etc.

[46] In respect of all of these documents, Mr Samaras indicated that he was aware of the content and had been duly exposed to the materials in the course of his employment. He did not deny that his conduct in forging the signatures in respect of the three clients was a contravention of the Code of Conduct and was carried out in contradiction to the Youth Connections Procedures Manual.

[47] The documentation that was tabled by BoysTown demonstrates that Mr Samaras was afforded extensive procedural opportunity to address the claims made against him. This much was apparent from Mr Samaras’ own evidence.

[48] Ms Katherine Leary, Human Resources Operations Manager, gave evidence in this respect that Mr Samaras had been provided training in relation to the procedures to apply to completing documentation. Mr Samaras was said to have completed training in a variety of modules, including:

• Client information management systems;



• Case management systems;



• BoysTown’s approach to working with clients; and



• Ethical practices in training.

[49] Ms Leary claimed that “it [was] reasonable to expect that any employees, or reasonable person, would understand the gravity of forging signatures on formal documentation.”

[50] Ms Kerry-Anne McDavitt, Human Resources Advisor for BoysTown, gave evidence in relation to Mr Samaras’ claim that he had gained a verbal or written permission from the young clients in relation to closing their files.

[51] Ms McDavitt contended that the Youth Connections Program Guidelines of September 2011 state that if a client or parent does not sign the Client Registration and Consent form:

“the provider must complete and sign a Client Registration and Consent Form (Verbal) which declares that they have explained the Privacy Notice and the young person, or the parent/guardian, has not objected to anything contained in the Privacy Notice.”

[52] Ms McDavitt gave evidence that where Mr Samaras had included the notation, “verbal permission given” he had done so in respect of the parent signatures, not the client or young persons’ signatures (which he forged). Thus, Ms McDavitt argued that Mr Samaras had been dishonest in claiming (as set out earlier) that he had been given verbal permission by clients.

[53] Further, Mr Samaras had not completed the various practice requirements on the documents in which he had given an indication that the parents had the given verbal permission in lieu of obtaining a parental signature.

[54] Ms McDavitt also challenged Mr Samaras’ claim, that he had indeed made, that he had obtained “all of the parent signatures” for the purposes of completing the documentation in question, and this in some manner downgraded the seriousness of the alleged misconduct. Ms McDavitt’s analysis of the various documents involved demonstrated that Mr Samaras had not followed the practices of taking a verbal parental permission in accordance with the various guidelines required by BoysTown. That is, Mr Samaras did not obtain all the parent signatures (by verbal authorisation) as he contended. Examining each of the files in a forensic manner, Ms McDavitt demonstrated that:

[Mr Samaras] did not follow the practices for taking verbal parental permission in accordance with and in compliance with guidelines and policies and practices and the Applicant continued to breach these compliance requirements by signing many program document in the place of clients’ signatures.

[55] Ms McDavitt’s claims must be read in perspective, however. Firstly, notwithstanding the phrasing in Mr Samaras’ written statement, he at all times has maintained that he acted improperly in forging the signatures of the three clients. Secondly, Mr Samaras’ claim in relation to obtaining the verbal authorisation of the parents in each case was predicated on his recollection of the files in question. Mr Samaras did not have access to the files for purposes of the construction of his witness statement. His claims in relation to having obtained all the parents verbal permission must be read reasonably in such a context, and subject to his best recollections. To this I add that the relevant files were not tendered in the course of the proceedings either.

[56] BoysTown also rebutted Mr Samaras’ claims that forging signatures was commonplace or at least not an exceptional practice.

[57] Ms McDavitt gave evidence that following the dismissal of Mr Samaras she had conducted a spot audit and review (in late December 2014) across each of the four BoysTown Youth Connections sites in Brisbane with a sample of 10 client files per site.

[58] Ms McDavitt claimed that the 10 files were chosen at random for the purposes of the audit.

[59] Of the 40 files that were reviewed (by her in the company of Ms Ann Chandra - the acting Regional Manager - SEQ):

[...] No alleged forged signatures were identified.

[60] Ms McDavitt also claimed that she interviewed four relevant managers within the Employment Education and Training Division as to their knowledge about any practices relating to falsifying client signatures within the Youth Connections program:

There were no disclosures from these managers regarding knowledge of practices relating to falsifying client or parent signatures on Youth Connections program documents.

[61] Mr Samaras could not evidence his claims, I add (other than through Mr Lemalu’s evidence, which I have addressed elsewhere in this decision). Mr Samaras claimed that he had heard of the practice of forging signatures in passing discussions. He had never reported such claims, and he did not raise them in his defence when he was subject to disciplinary investigation.

[62] Ms McDavitt also gave evidence that on 15 December 2014 together with the acting regional manager she interviewed the Youth Connections coordinators (including a previous coordinator) regarding their knowledge of any practices relating to falsifying client signatures within the Youth Connections program. The result of those interviews was that:

There were no disclosures from these coordinators regarding knowledge of practices relating to falsifying client or parent signatures on Youth Connections program documents.

[63] Ms Leary gave evidence that she was aware of no prior claims by Mr Samaras or his work colleagues of any bullying incidents, let alone as to the existence of a bullying culture. Ms Leary claimed that the allegations only arose after the three performance meetings had concluded and following Mr Samaras’ written reply to the allegations.

[64] The People and Culture Manager at BoysTown, Ms Cara Benoit, had reviewed the personnel files to determine whether or not Mr Lemalu, who had supported the Applicant’s claims, had ever registered a complaint or raised an issue of concern. Ms Benoit’s evidence was that her enquiries demonstrated that Mr Lemalu, despite his concurrence with Mr Samaras’ claims, had never raised a concern either formally or informally with human resources or senior management of BoysTown.

[65] As to Mr Samaras’ effective claims that his conduct did not warrant him being stood down and therefore his dismissal was out of proportion to the misconduct, Ms Leary claimed that a stand down was not required in the circumstances. Firstly, Ms Leary explained that BoysTown did not seek to prejudge Mr Samaras and a stand down might have given such an indication. In any event, Ms Leary continued that stand downs are applied when there are allegations of inappropriate conduct with a young person or instances of aggression or theft and so forth. Ms Leary claimed that Mr Samaras’ circumstances did not warrant such a course of action.

[66] Ms Leary also countered Mr Samaras regarding him being permitted to access confidential information despite the allegations made against him, by explaining that the handling of confidential information had not been in question. Rather, the issue of concern had been the misconduct by Mr Samaras in relation to forging signatures in the context of completing required documentation.

[67] As to Mr Lemalu’s claims as set out above, Ms Benoit argued that Mr Lemalu’s email should be treated sceptically:

I do not see how Mr Lemalu could have witnessed some of these events as I understand Mr Lemalu concluded employment with BoysTown on 19 September 2014 and during his employment, [his] daily work activities were undertaken at a variety of locations.

[68] That all said, as cited earlier in the termination correspondence of 27 October 2014, Mr Samaras was dismissed ultimately for 13 counts of forging client signatures, and there was no reliance on any other causal factors.

Consideration

[69] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[70] For purposes of establishing a valid reason for the dismissal of Mr Samaras, BoysTown relied upon his conduct in forging client signatures on 13 occasions in respect of three separate clients, along with Ms Samaras’:

lack of honesty in disclosing the forgeries prior to discovery, which was a breach of BoysTown values and behaviours relating to integrity, honesty and accountability.

[71] There is no dispute that Mr Samaras forged the signatures as alleged.

[72] Mr Samaras also was obliged to conduct himself in accordance with his contract of employment, and BoysTown’s various policy and procedures - which had been explained and emphasised by way of training programs in which Mr Samaras had demonstrably participated.

[73] In forging the 13 signatures in relation to the three client files, Mr Samaras revealed a lack of sufficient regard to the professional and ethical framework in which the BoysTown organisation sought to conduct its business.

[74] This is no dispute, and there cannot be any dispute, that Mr Samaras did not alert his employer to his conduct in this regard. That is, rather than bring to his employer’s attention his difficulties in closing the files in the appropriate manner he sought to conceal his conduct until it was disclosed by Ms Hewton.

[75] It is reasonable to expect from Mr Samaras that he would have rendered his services to his employer in an honest way, and not have acted to undermine the integrity of its case management procedures, which is premised on client empowerment.

[76] But Mr Samaras’ conduct must be contextualised.

[77] His actions were not intended to procure a benefit for himself. Or at most, the only benefit that he accrued was being able to conclude the administrative requirements of archiving files more expeditiously than by completing the required procedures. That is, the forging of the signatures saved him some time.

[78] The signatures that were forged were in relation to three clients who had completed the Youth Connections program some nine months previously. The files were inactive, and were being closed, once again, for purposes of archiving.

[79] Mr Samaras’ breaches of procedure appear to be confined to a particular time period - one day it appears - and are not manifest across a wide number of files (but three only). Indeed, Mr Samaras’ conduct extended across some three client files against what was a much larger number for which he had otherwise been responsible.

[80] There was no pattern - or evidence of any further or more widespread - incidences of signatures being forged by Mr Samaras at anytime.

[81] While his employer is right to sanction Mr Samaras’ conduct in this regard, viewed objectively I do not consider the conduct to have been maliciously motivated or to be of such consequence (for the purposes of funding or perceptions by external stakeholders) that it warranted his dismissal. Putting aside the breaches of the policies and procedures, Mr Samaras did not derive a benefit from his conduct, and the files were closed in the manner they were for the purposes of archiving, and were no longer active.

[82] In addition, there does not appear to have been any discernible damage (to BoysTown’s public reputation or its funding prospects) arising from Mr Samaras’ conduct. I will say more in relation to this below, under s.387(h) of the Act.

[83] In essence, Mr Samaras unwisely overlooked his training and the obligations imposed upon him by his contract of employment and his employer’s procedures manuals, and (as he put it) lazily rushed to close a small number of files.

[84] Though not a compelling factor for determining whether an employer’s dismissal decision is based on a valid reason, I do note that upon disclosure of his conduct, the state of the evidence was that Mr Samaras was immediately remorseful.

[85] When viewed in this important, wider context, I do not consider Mr Samaras’ conduct to be of such an extreme nature that it warranted his dismissal. Nor do I consider that the scale and nature of the conduct was such that it on its own was sufficient to sever the bond of trust and confidence between Mr Samaras and BoysTown.

[86] To be sure, BoysTown seeks to manifest a very high regard for procedural accuracy and seeks to ensure a strong reputation for transparency and ethical dealings. Its reaction to Mr Samaras’ conduct is testimony to this corporate-level sensitivity.

[87] But in my view, Mr Samaras’ conduct warranted a disciplinary response short of dismissal. Consequently I conclude that the employer did not have a valid reason for Mr Samaras’ dismissal.

Whether the person was notified of that reason

[88] Mr Samaras was accorded substantial procedural fairness in the process leading towards the communication of his dismissal. He was notified in advance of the decision to dismiss him of the reason the employer was considering his dismissal.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[89] In the course of the various performance meetings that I set out above, it is evident that Mr Samaras was provided ample opportunity to respond to the reasons for the dismissal which related to his conduct.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[90] There are no circumstances in this matter that demonstrate that the employer had unreasonably refused Mr Samaras an opportunity to have a support person present over the course of (what became) the termination discussions.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[91] The allegations made against Mr Samaras related to his conduct and the effect of that on the trust and confidence of his employer and not to the performance of Mr Samaras’ duties otherwise.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[92] BoysTown raised no issue in relation to its size so far as that was a factor that influenced the procedures by which Mr Samaras was dismissed.

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[93] BoysTown is an organisation that has access to human resource management specialists, and this was made clear in the evidentiary case led by BoysTown.

Any other matters that the FWC considers relevant

[94] Upon disclosure of his conduct, Mr Samaras fully accepted responsibility for his actions and was remorseful. He did not deny his training and awareness of the employer’s ethical policies and procedures and guidelines, but sought to take whatever steps were necessary to set things right (such as contacting the clients to confirm their verbal authorisations).

[95] That said, Mr Samaras freely admitted the nature of his conduct and accepted that it contravened his employer’s expectations about his professional conduct and its policies and procedures and Code of Conduct (in which he had been trained and in respect of which he was familiar).

[96] Mr Samaras’ conduct did not cause demonstrated loss or (material or reputational) damage; it yielded no personal benefit to Mr Samaras; it did not jeopardise his safety or the safety of others; and it was not conduct that had occurred over time or exhibited any pattern (being an incident on one day as due dates for archiving were imminent). And in addition, Mr Samaras was remorseful for his conduct as it was revealed to be - which lessens the likelihood (in the context) for future conduct of the same kind.

[97] In my view, when all the circumstances are considered, Mr Samaras was harshly, unjustly or unreasonably dismissed from his employment by BoysTown. Mr Samaras’ conduct warranted sanction through disciplinary measures of one kind or another, but I do not see in the entire circumstances of this matter conduct of such an extreme nature that warranted Mr Samaras’ dismissal.

[98] Having so concluded, I now turn to remedy.

REMEDY

[99] Section 390 of the Act provides as follows:

Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division (2)) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[100] Mr Samaras is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise a discretion as to whether Mr Samaras can be reinstated.

[101] Section 391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

[102] I have concluded above that I do not consider that the nature of Mr Samaras’ conduct warranted his dismissal. Nor do I consider that the conduct of Mr Samaras was of a kind that has inflicted fatal damage to the employment relationship. The necessary quantum of trust and confidence appears to me to remain in place for that reason (and contrary to the concerns of BoysTown). As I said above, in my view Mr Samaras’ conduct was far from being at the serious end of the spectrum - there was no pattern of misconduct (only misconduct on one day in respect of three inoperative files which he was seeking to archive), and Mr Samaras was remorseful for his admitted mistake in taking an administrative short cut.

[103] Mr Samaras made various allegations about BoysTown managerial culture. But this is largely centred around Ms Hewton, who did not appear to rebut or counter Mr Samaras’ claims. In any event, Ms Hewton no longer appears to be an employee of BoysTown.

[104] I must also say that Mr Samaras’ claims about BoysTown’s professional practices were poorly made out, particularly in respect of there being a common practice of forging signatures. In the end Mr Samaras’ viva voce evidence meant little more than he had heard a few references in a small number of discussions over the course of almost four years employment. It was a claim made more as a defensive step to save his position; it never had any evidentiary substance and even Mr Samaras himself did not allow that claim to qualify his open and clear admission of error.

[105] But would such conduct in making such allegations have bearing on the appropriateness of Mr Samaras’ being reappointed to his position or being appointed to another position on terms and conditions no less favourable than those on which he was employed immediately before the dismissal?

[106] Having had the benefit of hearing the evidence, I very much doubt the isolated and contained forgery incident, which has negligible risk of repetition, and any of the subsequent claims made by Mr Samaras - which have been pressed in a mild tone - have so fatally damaged the bonds of trust and fidelity that BoysTown can have no confidence in Mr Samaras as an employee. I appreciate the submission from BoysTown is to the contrary, but when the evidence is viewed objectively and in its full context, it is difficult to conclude similarly.

[107] In saying so, Mr Samaras’ original position in which he was employed at the time of his dismissal no longer exists as the Youth Connections program has ceased to operate. Mr Samaras had been appointed to a new position (which had not yet commenced) at the time of his dismissal.

[108] Therefore, for the purpose of s.391(1)(b) of the Act, I do not discern in the evidence before me an impediment to appointing Mr Samaras to another position with BoysTown on terms and conditions no less favourable than those on which he was employed immediately before the dismissal. I will so order.

[109] Section 391(2) of the Act provides as follows:

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[110] Section 391(2) of the Act invests a discretion in the Commission - once it determines to reappoint an employee - to make any order appropriate to maintain the continuity of the employee’s employment.

[111] In the circumstances of this case, Mr Samaras’ own conduct exclusively was the reason for the decision of the employer to dismiss him. I do not consider that it is appropriate that I reappoint Mr Samaras and maintain the continuity of his employment for the period since his dismissal.

Conclusion on remedy

[112] Mr Samaras is to be appointed to another position with BoysTown on terms and conditions no less favourable than those on which he was employed immediately before the dismissal. An order to this effect will issue along with this decision.

[113] I do not consider that it is appropriate to make an order that Mr Samaras’ continuity of employment be maintained or preserved for the period since his dismissal from BoysTown. This is a reflection on his responsibility for the circumstances that led to his dismissal, and his particular act of singular misjudgement in that respect.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr T. Samaras, Applicant

Ms G. Cleveland, of Mullins Lawyers, for the Respondent

Hearing details:

Brisbane

2015

11 and 12 March

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