Mr Warren Brook v The Salvation Army
[2011] FWA 1276
•10 MARCH 2011
[2011] FWA 1276 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Warren Brook
v
The Salvation Army
(U2010/1108)
COMMISSIONER CLOGHAN | PERTH, 10 MARCH 2011 |
Unfair dismissal remedy.
[1] On 13 July 2010, Mr Warren Brook (“the Applicant”) made application to Fair Work Australia (FWA) alleging that he was unfairly dismissed from his employment with The Salvation Army (TSA) (“the Employer”) on 29 June 2010.
[2] Mr Brook has made the application pursuant to s.394 of the Fair Work Act 2009 (“the Act”). Mr Brook is seeking reinstatement as a remedy for his alleged unfair dismissal and compensation for an appropriate period since his termination of employment.
[3] Mr Brook’s application was unable to be resolved at conciliation and was subsequently referred to me for arbitration.
[4] Mr Brook advised FWA that he was unable to be present for arbitration until after 14 January 2011. Arbitration took place on 17 and 18 January 2011.
[5] Mr Brook and his wife, Mrs Phyllis Brook, gave evidence in support of the application. For the Employer, Ms Beverley Bonham, former Divisional Manager, Human Resources gave evidence.
[6] To assist the proceedings, both parties provided documentation to the Tribunal which was incorporated into the proceedings. Having received this material, heard submissions and oral evidence and been provided with further exhibits, I reserved my Decision. In reaching this Decision I have considered and given appropriate weight to all the material provided to the Tribunal.
BACKGROUND FACTS
[7] Mr Brook was employed on a fixed term contract of 12 months as a Divisional Envoy on 9 January 2008.
[8] Mr Brook was offered, and accepted, a further fixed term contract of 12 months as a Divisional Envoy on 9 January 2009.
[9] At the expiration of the second contract on 8 January 2010, Mr Brook continued as Divisional Envoy and, by this conduct of the parties, his employment became continuous under the same terms and conditions as the fixed term contract.
[10] Mr Brook’s contract of employment states that he will undertake the duties and responsibilities of a Ministry Assistant and carry out this role as part of the Karratha Corps of TSA. Mr Brook is not an officer of TSA.
[11] Mr Brook’s line manager to whom he reports is Major Dennis Rowe, the Divisional Commander, Western Australia.
[12] On 28 April 2010, Major Rowe forwarded to Mr Brook correspondence, the relevant parts which are as follows:
“Dear Warren
Re: Complaints relating to your conduct and behaviour while employed in the position of Divisional Envoy, Karratha Corps and the expectations of your conduct and behaviour as an employee of The Salvation Army:
I wish to advise that a number of complaints regarding your conduct and behaviour have been brought to my attention. You will be aware that on least two previous occasions I have formally advised you in writing of my concerns with your inappropriate conduct and behaviour and my expectations that you demonstrate appropriate behaviour while you are employed in the position of Divisional Envoy.
...
I now seek a written response from you to this letter addressing each of the following complaints, within five working days.
...
Warren, this letter is a written warning to you to state that the conduct demonstrated by you as outlined in the list of complaints above causes imminent and serious risk to the reputation of The Salvation Army Corps. The Social Programs in Karratha and/or The Salvation Army as a whole. Also the wilful and deliberate behaviour demonstrated by you is inconsistent of the continuation of your employment.
You have been given a summary of each of the complaints against you in this letter with the relevant attachments containing additional information on each complaint.
...
I seek a written response from you within 5 working days addressing the complaints listed above and a commitment from you to demonstrate conduct and behaviour that is respectful and appropriate towards those within The Salvation Army and others.
Your response will be thoroughly investigated and the decision will be made as to whether the matters are capable of resolution.
If the matters are not capable of resolution, you will be given a final opportunity to put information regarding your case further to the Division before a decision of termination of your employment is made.
Yours sincerely
Dennis G Rowe (Major)
Divisional Commander” 1
[13] On 19 May 2010, Mr Brook and his son, Mr Craig Brook, who was his representative, met with Major Rowe and representatives of TSA. The purpose of the meeting was to discuss the matters set out in Major Rowe’s correspondence of 28 April 2010. The meeting was held at the request of Mr Craig Brook.
[14] On 31 May 2010, Major Rowe provided further correspondence to Mr Brook advising that TSA had reached preliminary conclusions in respect to each of the complaints. As a consequence, TSA was considering terminating Mr Brook’s employment and invited him to provide any further information.
[15] On 17 June 2010, Mr Craig Brook provided a written response on behalf of Mr Brook to Major Rowe’s letter of 31 May 2010 and concludes:
“Based on the above mitigating circumstances, evidence and explanations, it is clear that Envoy Brook at no time conducted himself in anything but a manner that befits an employee/officer of TSA.
I trust that the above will bring an end to these matters and allow Envoy Brook to continue his work in Karratha until the normal Officer changeover period. Envoy Brook has become disillusioned with some people at DHQ due to their actions during the course of the last 9 months, so would like to relinquish his position within TSA but wait until the normal changeover period...as it would be assumed that it would be a normal change of appointment.” 2
[16] On 25 June 2010, Major Rowe advised Mr Brook of the decision of TSA to terminate his employment effective 29 June 2010. The relevant parts of Major Rowe’s correspondence are as follows:
“The purpose of this letter is to notify you of the decision to terminate your employment with The Salvation Army. The Salvation Army does not require you to work out your period of notice and as such your employment will end at the close of business on Tuesday, 29 June 2010.
The reason for this decision is that your conduct in recent months has not been of a standard consistent with the expectations of an employee in your position with The Salvation Army. Following a thorough investigation it has been determined that your conduct has been disrespectful, insubordinate and has brought The Salvation Army into disrepute with key stakeholders.
In recent months, I have raised concerns with you regarding your conduct in emails dated 12 March 2010 and 15 April 2010 and asked that you alter your behaviour and communications to reflect a manner that befits your employment with The Salvation Army. On 28 April 2010, as part of The Salvation Army’s investigation into allegations regarding your conduct, I wrote to you outlining a serious of complaints The Salvation Army had received in relation to your conduct and advised consideration was being given to your ongoing employment.
On 19 May 2010, representatives of The Salvation Army met with you and your representative, Mr Craig Brook, to discuss the allegations outlined in my letter of 28 April 2010. The responses given by you and your representative on your behalf at that meeting and those contained in your correspondence dated 17 June 2010 have been taken into account in coming to the decision to terminate your employment. The Salvation Army considers the course of conduct evidenced by the allegations, which we consider have been substantiated, leave us no option but to end your employment.” 3
THE ALLEGATIONS
[17] The allegations made against Mr Brook which ultimately led to his dismissal are contained in a series of emails and other documents and are also based on his conduct on certain occasions. They are as follows:
Email to Major Bruce Stevens: 29 January 2010
[18] Major Bruce Stevens was TSA’s Divisional Secretary.
[19] The email relates to the employment arrangement of Mr Brook’s wife, Mrs Phyllis Brook. The relevant parts are:
“You people really do’nt (sic) get it...We did not accept this appointment to be just another useless gap filling officer like so many these days...Your attempt to diminish that responsibility for Phyllis or me is to diminish and discredit and the work of the Spirit and the Salvation Army in this town.
“I will say to you as I said to our American tourist, “we will wait for the decision of the Territorial board...you will now be hearing from the union...to straighten out this mess...see you then”. 4
[20] The context to the email is that Mrs Brook was in dispute with TSA concerning her employment. In short, Mrs Brook’s appointment was changed to assistant to Mr Brook. Mr Brook considered this a downgrading of Mrs Brook and an insult to both of them. 5
[21] On 30 December 2009, Mrs Brook received an email from Commissioner Bassett to say that he had accepted a recommendation from Major Grady Bailey that, effective 8 January 2010, she would no longer be employed at the Women’s Refuge.
[22] Subsequent to this email, Mr Brook received correspondence from Major Bruce Stevens enquiring as to whether Mrs Brook had accepted the offer of assistant to Mr Brook to enable him to approve a second employee for the Karratha Corps. It was to this correspondence that the Applicant responded to in paragraph [19]. Mr Brook relies upon a “conversational” friendship with Major Stevens for the tone of familiarity in the email.
[23] At the time TSA was changing Mrs Brook’s employment arrangement, Mrs Brook’s immediate line manager and Divisional Commander for Western Australia, Commissioner Bassett visited Karratha on 2-3 January 2010.
[24] Mrs Brook had been advised not to speak to Commissioner Bassett, however, Mr Brook made the decision to take him to his wife and her change of occupation was discussed. During the discussion, Commissioner Bassett is alleged to have said, “Don’t think of it that way [dismissal], think of it as a change of appointment”. 6
[25] With respect to referring to the Acting Divisional Commander as “our American tourist”Mr Brook’soralevidence is multi-faceted. Firstly:
“So he was a very senior member of the Salvation Army? Yes. Very highly respected and regarded man, and in America”. 7
[26] Having made this comment, Mr Brook then gave evidence that:
“He’s a retired Commissioner. He was invited by his friend...and he had him on a bit of a pedestal...he invited his friend from America who was retired and not doing anything in particular to come over and fill the gap”. 8
[27] Further, Mr Brook gave evidence that, as part of Commissioner Bassett’s introduction on arrival in Australia, a comment was made that he should see the Pilbara as it is a place unlike anything in America 9.
[28] Notwithstanding the fact that Commissioner Bassett was the Acting Divisional Commander of Western Australia, a senior and highly respected member of TSA, Mr Brook’s line manager, he could see no “problem at all” with referring to him as an “American tourist”.
[29] Ms Bonham gave evidence for TSA that while the email was “of concern” 10 as Commissioner Bassett had returned to the United States and Major Bruce Stevens took the view, “At this stage we’ll just let it go” as Mr Brook was “someone who would let off steam from time to time so I just accepted that was how he was”11.
[30] An investigation was not carried out into Mr Brook’s conduct 12 and Ms Bonham conceded that by itself, it would not have led to his dismissal13.
[31] Counsel for Mr Brook submitted that the way TSA dealt with Mrs Brook had an impact upon how Mr Brook responded to his Employer, and the “key” to his behaviour, is to “understand the [Mr Brook’s] state of mind”.
[32] From the evidence, it would appear that in relation to the email to Major Bruce Stevens, TSA was forgiving, but its forgiveness was in the context of an individual who was known to let off steam.
Incident at Women’s Refuge on 3 March 2010
[33] On 3 March 2010, Ms Hristina Suleska, Acting Manager, Women’s Refuge advised Major Jennifer Begent, by email, that Mr Brook entered the Women’s Refuge, confronted her in a forceful manner questioning her qualifications and experience, and why she was in charge. In addition, Mr Brook asked whether there was a staff communications book which stated that Ms Suleska was in charge. Ms Suleska provided one example, and according to the email, Mr Brook continued to look through the remainder of the communication book 14.
[34] It should be noted that on the same day, Mrs Brook had received an email to say that her pay would cease from 5 March 2010, and Mr Brook heard from another employee at the Women’s Refuge that Ms Suleska had been appointed the Acting Manager of the Refuge 15.
[35] Mr Brook claims that he had been advised previously that Ms Suleska should not be employed by TSA. Further, he was under the belief that he was the overall manager of all operations in Karratha, including the Women’s Refuge, and that he should have been consulted on a suitable replacement for his wife 16.
[36] In cross examination, when asked whether he was “very forceful in his manner”, Mr Brook responded confusingly:
“...No. I was the officer in charge. It could be interpreted that way I suppose.” 17
[37] Further, Mr Brook admitted, while he did not question Ms Suleska’s qualifications, he “questioned her right to be there in that position.” 18
[38] Mr Brook denied reading through the communication book on 17 June 2010 19.
[39] As to a finding of fact as to whether the Employer has a valid reason for terminating Mr Brook’s employment, the email of Ms Suleska, of itself, is not compelling. However, Mr Brook admits he was on the premises and his manner could be interpreted as very forceful. Further, he attended the Refuge with a predisposed view as to the suitability of Ms Suleska’s appointment, he was the “overall manager of all operations”, he should have been consulted on the appointment, and should have known what was “going on”. 20
[40] While I do not have to find whether Mr Brook looked through the communication book, I am satisfied from Mr Brook’s evidence that Ms Suleska’s email fairly portrays what occurred.
[41] With regard to Mr Brook’s state of mind, I find that he was aware that Mrs Brook had recently received advice that her pay was to cease and Ms Suleska had been appointed to the position through a conversation with a third party employee.
Email dated 3 March 2010 to Major Jenny Begent
[42] Shortly after Ms Suleska sent the email to Major Jenny Begent above, she sent an email to Mr Brook advising him that Ms Suleska had been appointed interim Manager at the Karratha Women’s Refuge and that she would be visiting Karratha during the week of 15 March 2010. The email was very matter of fact and common to almost every business where visits are made by personnel.
[43] Mr Brook responds to Major Begent within 30 minutes and opens with the following statement:
“To make these arrangements without consultation of the Officers responsible and within a few weeks of your arrival, not knowing anything about the people you are dealing with, is not only unethical, non-Christian and ignorant of common courtesy...”
and concludes
“You obviously are acting on extremely bad and vicious advise (sic) that has been emanating from that office for some six months now and for which those promoting that will be called to answer before God, even if they think that can engineer their survival on this planet”. 21
[44] In his written response on 17 June 2010, Mr Brook apologises to Major Begent “if this caused her any duress” 22 -- whatever this means. However, in his Statement of Facts he refers to his anger and frustration with Major Begent’s handling of the situation and her “lack of knowledge of TSA rules and regulations”23.
[45] Counsel for the Applicant, as I have already mentioned, states that the key to Mr Brook’s conduct was his state of mind. At this stage, the Employer’s understanding and benevolence started to withdraw and Mr Brook was asked on 12 March 2010 to become responsible and accountable for his actions. However, in cross examination when asked:
“So you're alleging that the major was unethical, non-Christian, ignorant of common courtesy and displaying a total disregard for protocols which were dictated by Divisional Commander Rowe to Major Begent?---Right - only according to the way she treated me. That was my personal assessment because of the way she had disregarded my position.” 24
“So you felt it appropriate to send an email alleging that a major of the Salvation Army was unethical, ignorant of common courtesy, non-Christian?---I didn't send it to him. I sent it to her. I deal with people directly. If I've got a problem with a person, I let them know, and it's up to them to apologise or to let me know that I'm wrong, and all she did was inform me of what she should have informed me before she made the decision. She tried to cover - - -.” 25
[46] In examination in chief, Mr Brook explained his view of the situation when he stated, “I sent her a little note as a senior officer to a junior officer informing her of proper procedure that she should have observed” 26. However, in cross examination, Mr Brook conceded that Major Begent is responsible for a different area of work in TSA and he was not her senior officer27. Notwithstanding the error of his statement in examination in chief he went on to say:
“In that hierarchy, was Major Begent senior to you?---In years of service, definitely not. I suppose it's logical to say a major is senior to a divisional envoy had the divisional envoy not been an officer with the rank of major for 26 years previous.” 28
[47] This statement illustrates the general nature of the working relationship where Mr Brook adopted a parallel organisational structure, which suited his length of service and previous rank of Major, however, when both of these organisational structures confronted him with difficulties, he adopted the “old soldiers” familiarity approach.
Email dated 3 March 2010 to Commissioner James Knaggs
[48] In an email to his Divisional Commander, Mr Brook informs Commissioner Knaggs of the good progress being made in Karratha and the admiration and good work of Mrs Brook in the community. He goes on to say:
“Sadly this [Mrs Brook’s work] seems to have generated some jealousy from “lesser lights” in the salvation army at dhq and one or two competing people in the community. Despite all her work for the Lord and the people in the community, for which the salvation army gets plaudits, there are those agents of the devil who seek to tear her, and her work down.
“There are those at Dhq who have allowed this to happen, through negligence of duty and loyalty to their fellow officers, by not defending Phyllis from...instead of defending the innocent, dhq sacked the victim and...attempting to replace her with someone outside the Salvation Army and the Christian fellowship”. 29
[49] On 17 June 2010, in a written response to the content of this email, Mr Brook explains that the reference to “lesser lights” and “agents of the devil” were his personal feelings due to his emotional state at the time and were based on events that happened to Mrs Brook in the six months prior” 30.
[50] In examination in chief and cross examination, Mr Brook gave evidence of his interpretation of the meaning of “lesser lights” and “agents of the devil”. To minimise the impact, he attempted to distinguish at Divisional Headquarters between Officers, employees who are Christian and those who are not. In short, Mr Brook engaged in sophistry and when asked:
“So you don't consider that your comments in your email are inappropriate at all? ---Well, I wouldn't have written it if I did.” 31
Telephone call of 4 March 2010 with Ms Suleska
[51] Ms Suleska was involved in a telephone incident with Mr Brook on 4 March 2010 which resulted in an email from Ms Suleska to Major Begent. The email states, in summary, that she feels the abuse and degrading comments by Mr Brook are directed to her personally and that she was concerned for her own safety and that of the staff. Further, according to Mr Brook she should not be in the position and that “the people that have employed me have no right or idea of what they are doing”. 32
[52] Mr Brook contends that “at no time did he scream at her or abuse her in that telephone call, on the contrary, Ms Suleska did scream and abuse Envoy Brook” 33. As to Ms Suleska’s concerns for her safety and that of her staff, Mr Brook takes the view that they are “unfounded, untrue and slanderous”.
[53] Mrs Brook gave evidence that her husband, “certainly wasn’t screaming or yelling at her” 34, “definitely not downgrading or insulting Ms Suleska”35 or “abusing her”36. Notwithstanding this, Mrs Brook gave evidence that she took the telephone off her husband because he was starting to be “a bit cross”37 and “raised his voice to her [Ms Suleska] and said, I am the representative of the Salvation Army and you will listen to what I have to say”38.
[54] While it is not my role in these proceedings to make a determination of what happened, it is clear that an incident did occur and TSA could not ignore it as part of Mr Brook’s conduct in the course of his employment.
Incident at Salvation Army Hall on 10 March 2010
[55] On 10 March 2010, an incident occurred in the TSA Hall between Ms Trevurza and Mr Brook in the presence of Divisional Commander Rowe and other staff. Ms Trevurza is the Coordinator of the Crossroads West Karratha Youth Accommodation.
[56] The incident can be reduced to Mr Brook stating, in a way which could only be a reference to Ms Trevurza that, “someone here is a bald faced liar” 39. At this point, Divisional Commander Rowe intervened to say that this was not the “time nor place to take this any further” and suggested that it be left for another occasion40. Further, he referred Ms Trevurza to her line manager, Ms Hunt.
[57] When Mr Brook was asked to respond to the issue on 31 May 2010, Mr Craig Brook on behalf of the Applicant, responded by saying to Major Rowe:
“As you were present during this meeting, if you felt, as the Senior Manager, that any statements were inappropriate or could be seen as harassment, then you had a duty of care to stop it straight away, and to counsel and discipline members accordingly. As this was not done, then the assumption must be given that Envoy Brook’s statements and contents were not bullying” 41 (my emphasis)
[58] In summary, Mr Brook’s view is that his behaviour can be extinguished by transferring responsibility to the failure of somebody to act “straight away”. I do not agree with Mr Brook’s approach.
[59] In cross examination, Mr Brook acknowledged that he called Ms Trevurza a bald faced liar and that:
“...well, I was annoyed with her persistence in lying, in pursuing her description of the work she wasn't doing, as if she was doing it.” 42
and
“...Well, I just said it the way it was. You know, I just sort of made sure Major Rowe knew that - what was the truth and what wasn't the truth, because he was the one she was trying to make a good impression on.” 43
[60] Again, it is not my role to make a specific finding as to whether Ms Trevurza was a “bald faced” liar but it was proper for the Employer to put the allegation to Mr Brook and to consider the response. Having considered the response, I think it was within the band of reasonableness for TSA to consider that Mr Brook acted inappropriately in his dealings with Ms Trevurza.
Telephone call on 11 March 2010 with Ms Hunt
[61] Ms Hunt, as Ms Trevurza’s line manager, contacted Mr Brook by telephone regarding the incident in the TSA Hall on 10 March 2010. Ms Hunt summarised the telephone call in an email and a report approximately three (3) hours after the telephone conversation.
[62] In summary, Ms Hunt alleged that the manner or process of the telephone call was both shocking and disturbing. Mr Brook asserted that Ms Trevurza was a liar, that she had no idea how to run a service and that he did not have to speak to Ms Hunt. In short, Mr Brook was both insulting and threatening. The telephone call was on speaker and witnessed by another employee 44.
[63] In response to the complaint, Mr Brook informed TSA that as Ms Hunt was not part of “his management chain” he did not have to explain himself to her but that nonetheless, he did not talk to Ms Hunt in an insulting manner or raise his voice. However, he admitted saying that Ms Trevurza was a liar and that “Ms Hunt had no idea how to run a service”. Finally, Mr Brook’s written response was that “Ms Hunt’s description of Envoy Brook’s behaviour as both shocking and disturbing is unfounded and untrue and appears to be based on her reaction to having Envoy Brook question her ability” 45.
[64] Having considered the allegation, TSA found that Mr Brook behaved in a manner inconsistent with that of an employee of the TSA.
Comments on TSA Corporate Cheque Account Statement on 10 April 2010
[65] On 10 April 2010, Mr Brook made the following annotations on a Salvation Army Account Statement and forwarded them to the Divisional Commander, Major Rowe, and the Finance Department:
“I believe Bev Slater is responsible for these bouncy cheques”; and
“We don’t like our reputation soiled by malpractice @ DHQ”.
[66] In response to the allegation that the comments were derogatory, Mr Brook adopts the view that, “at no time was Envoy Brook being disrespectful to DSA as Bev Slater is an employee and not a member”.
Mr Brook dealt with the issue in cross examination as follows:
“But this isn't really a complaint. This is an allegation of malpractice?---He [Major Rowe] did not deal with the complaint. He dealt with me. He killed - he shot - he tried to shoot the messenger. He didn't accept responsibility in his own office for a problem.” 46
“I put it to you that that's not the case?---You can put whatever you like.” 47
“Mr Brook, the divisional commander came to you because he thought that your behaviour was inappropriate?---Well, he's entitled to his judgment.” 48
“I put it to you, Mr Brook, that the appropriate way to deal with it would have been to contact your line manager, if that's what you thought was appropriate, and say, "We've got a problem with the bank account. Can you look into it?" Full stop? ---The result is the same. It should have happened that way, yes.” 49
[67] While Mr Brook, given his experience and association with TSA, is right to be concerned about the reputation and standing of TSA in the local community, that of itself does not give him carte blanche to claim that the Divisional Accountant is engaging is “fraud” 50 or “malpractice”. A dishonoured cheque does not give the Applicant immunity from the Employer’s assertion of derogatory comments and that he could have, and should have, dealt with the issue more appropriately; this became evident in evidence.
Incident at Women’s Refuge on 12 April 2010
[68] On 12 April 2010, Mr Brook attended the Women’s Refuge. A Refuge worker advised him that he no longer had access to the premises. Notwithstanding this situation, Mr Brook was given access and entered in a “determinate manner” 51. While it appears the Refuge worker felt uncomfortable and there was an awkward moment, the interaction is not of immense important.
[69] What is important is Mr Brook’s statements claiming that it was illegal to ban him from the building and change the locks. The Refuge worker alleges that he was visibly angry and annoyed at this situation 52.
[70] Mr Brook photocopied the memorandum to the Women’s Refuge and made the annotation, “By what authority? It’s time this matter was referred to the Chief Sec” and forwarded it to the Divisional Commander, Major Rowe 53.
[71] Mr Brook asserts that the memo inferred that he and Mrs Brook were a threat to the safety of staff and clients, that such a memorandum was unnecessary and defamatory.
[72] For the purposes of this Decision, I consider the memorandum’s only relevance relates to Mr Brook questioning Major Begent’s authority as Divisional Social Programme Secretary. This questioning of Major Begent’s authority to make such a decision continued in cross examination where Mr Brook maintained that only he had the right to change the lock of the Refuge. 54
Email dated 19 April 2010 to Major Rowe
[73] In response to an email from Divisional Commander Rowe of 15 April 2010, Mr Brook responded on 19 April 2010 with the opening words:
“Dennis, sadly, old friend, your response simply demonstrates your lack of awareness of the history of this Corps and...
This has been blown way out of proportion by the advise (sic) of your staff - even the Commissioner of the Industrial Tribunal regards DHQ’s behaviour as “unChristian and dishonest” in this matter. Your people have done the salvation army a lot of damage.
...and I get angry when I see us being sold out to the enemy.” 55
[74] Mr Brook attributes the words “unChristian and dishonest” to a Commissioner of an Industrial Tribunal, however, in examination in chief, Mr Brook clarified that it was a comment made by the union representative in Mrs Brook’s industrial proceedings.
[75] Notwithstanding who made the comments, it is clear that Mr Brook’s intention to use the words to reflect his own feelings. This is confirmed when, on 17 June 2010, Mr Brook’s representative states on his behalf:
“The statements made by Envoy Brook to you about being “unChristian and dishonest in this matter” and that you had “sold out to the enemy” was his emotional response to his valid reasoning at the actions TSA had undertaken against Mrs Brook and himself to that point.” 56
[76] Simply put, the words were Mr Brook’s assessment of the Employer’s actions in relation to how TSA had conducted itself in relation to its own policies and procedures, occupational health and safety and industrial matters. Given that Mr Brook’s employer was TSA, he knew especially the discomfort such words would cause.
DISMISSAL PROCESS
[77] The process that led to Mr Brook being dismissed in a formal sense was as follows.
Email dated 12 March 2010 from Major Rowe, Divisional Commander to Mr Brook
[78] Major Rowe referred to the email of Mr Brook to Major Begent of 3 March 2010 (see paragraphs [42] to [47]). The Divisional Commander informed Mr Brook that Major Begent was the Divisional Social Programme Secretary and had the right to visit the Karratha Women’s Refuge under her responsibility. Further, the courtesy letter regarding her visit was to advise Mr Brook that she would be available to speak to him should he wish to do so.
[79] Importantly, the Divisional Commander stated:
“I believe the remarks made by you to Major Jenny Begent in response to her email were uncalled for and certainly quite insulting...
It is with great regret that I need to correspond to you in this way. However, I need to advise you that you should not speak or correspond with any Officer, personnel or staff of the Salvation Army in Western Australia in such a manner again.” 57
[80] When this email from the Divisional Commander was put to Mr Brook in cross examination, his response was; “That’s his judgement call” 58.
[81] Further, Mr Brook was asked, in light of his rebuke and expected behaviour in the future, whether he considered the email to Major Begent still appropriate, he replied; “yes” 59.
Email dated 15 April 2010 from Major Rowe, Divisional Commander to Mr Brook
[82] Major Rowe referred to two faxes sent to Divisional Headquarters by Mr Brook. The first fax related to the “bouncy cheque” on the bank statement. The second fax related to the memorandum in the Women’s Refuge on which Mr Brook had written, “By what authority?”.
[83] Major Rowe answered the queries raised by Mr Brook in a pleasant and factual way but left him in no doubt that whatever his views on the issues were, he was wrong.
[84] The Divisional Commander stated at the opening of his email to Mr Brook that he was “concerned” and concluded with the following:
“I wrote to you on 12 March 2010 asking that you refrain from speaking or corresponding to an Officer, personnel or staff of the Salvation Army in Western Australia in an insulting manner. However, this most recent correspondence in which you allege “malpractice at DHQ” is a slur on the character of every Officer and staff member of DHQ. I again request that you cease from this practise (sic) immediately and act in a way that befits your position”. 60
[85] In cross examination, when it was put to Mr Brook that the Divisional Commander, in the email, thought the Applicant’s behaviour was inappropriate, he responded; “well, he’s entitled to his judgement” 61.
[86] Having received this email on 15 April 2010, Mr Brook responded on 19 April 2010 with reference to the Divisional Commander’s “lack of awareness” and comments relating to DHQ’s behaviour as “unChristian”, “dishonesty” and TSA “being sold out to the enemy” 62.
Correspondence from the Divisional Commander dated 28 April 2010 to Mr Brook invited him to respond to complaints
[87] The Divisional Commander referred to the complaints regarding Mr Brook’s conduct and behaviour, his two previous emails and his concerns and expectations.
[88] Mr Brook was invited to respond to the complaints “and a commitment from you to demonstrate conduct and behaviour that is respectful and appropriate towards those within The Salvation Army and others” 63 was sought (my emphasis).
[89] The Divisional Commander stated that if matters were not capable of resolution, Mr Brook would be given a further opportunity to put information to the Division before a decision on termination of employment was considered.
Meeting on 19 May 2010 between Mr Brook, his representative Mr Craig Brook and TSA
[90] Mr Brook gave evidence that his son requested a meeting to discuss the Divisional Commander’s letter to him of 31 May 2010 and made “all the necessary responses” 64.
Letter dated 17 June 2010 from Mr Craig Brook to the Divisional Commander concerning investigation into Mr Brook’s conduct
[91] Mr Craig Brook, on behalf of the Applicant, provided a detailed response to the Divisional Commander on each of the alleged complaints. Mr Craig Brook concluded, “Envoy Brook has become disillusioned with some people at DHQ due to their actions during the course of the last 9 months” 65.
Letter dated 25 June 2010 from Major Rowe, Divisional Commander to Mr Brook
[92] Mr Brook was advised that his employment was terminated as his conduct had been “disrespectful, insubordinate and has brought The Salvation Army into disrepute with key stakeholders” 66.
RELEVANT STATUTORY FRAMEWORK
[93] Section 385 of the FW Act provides:
“A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[94] As to whether Mr Brook’s dismissal was harsh, unjust or unreasonable, s.387 of the Act provides as follows:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to 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 FWA considers relevant.”
DISCUSSION AND CONCLUSION
[95] Both Counsel for Mr Brook and TSA agreed that these proceedings were unusual. However, having agreed that the proceedings were unusual, Counsel disagreed on the circumstances of Mr Brook’s termination of employment. Counsel for the Applicant put the view that because of some ill chosen words from an “emotionally wounded” Mr Brook, TSA’s response was inappropriate, disproportionate and harsh. Counsel for TSA submitted that the Respondent Employer came to the view that Mr Brook’s behaviour was detrimental to its mission, its Karratha community, staff and officers of TSA. Further, that TSA behaved in a manner which was fair, just and reasonable in all the circumstances.
[96] The Employer is part of the Christian Church. TSA message is based on the Bible and its mission is to preach the Gospel of Jesus Christ.
[97] Mr Brook is fifth generation Salvation Army. Mr Brook made a commitment to TSA at eight years of age. At the age of 19 years, Mr Brook went to TSA training college and was commissioned and ordained as a Salvation Army Officer two years later. Mr Brook married Phyllis, also a Salvation Army Officer. After 26 years service as a Salvation Army Officer, Mr Brook resigned as a Major to spend the next 10 years in the normal sector 67.
[98] After 10 years in the normal sector, Mr Brook rejoined TSA as an employee with the title of Divisional Envoy reporting to the Divisional Commander.
Did The Salvation Army have a valid reason to terminate Mr Brook’s employment?
[99] Under Mr Brook’s contract of employment he was expected to follow and practice the Mission and Values of TSA and undertake the tasks of a Ministry Assistant (Divisional Envoy). Ministry Assistants are responsible to the Divisional Commander for their conduct and behaviour.
[100] Notwithstanding the nature of the Employer’s “business”, Mr Brook was offered and accepted a job. As a consequence, I must approach this application, in the first instance, by applying the essential features of the law as applied to employment contracts.
[101] Mr Brook’s contract was fairly straightforward and contained 16 clauses. Like many contracts of employment, it is silent on a multitude of matters which are implied into the contract. Implied terms are obligations applicable to both the employer and the employee and legally enforceable. Common implied terms for employees include the requirement to obey reasonable and lawful orders and to carry out their duties with due care and diligence.
[102] If I consider the requirement of employees to obey lawful and reasonable orders, I need to look at the facts in this dismissal.
[103] In the case of Major Rowe’s email of 12 March 2010, there was no dispute by the Applicant that it was not reasonable and lawful -- he was not to speak or correspond with any officer personnel or staff of TSA in such a manner again. In colloquial terms, he was told to “pull his head in”.
[104] It should be noted that, at that time, Major Rowe was only addressing what he described as Mr Brook’s “uncalled for and certainly quite insulting” comments to Major Begent and was aware of the incident involving Mr Brook at the Salvation Army Hall on 10 March 2010.
[105] What was Mr Brook’s response to this lawful and reasonable instruction? His response was to fax on 13 April 2010 to DHQ to say that the Divisional Accountant is responsible for “bouncy cheques” and alleged “malpractice” at DHQ.
[106] Apart from ignoring Major Rowe’s instructions of the previous day, I am satisfied that Mr Brook was deliberately “snubbing” the Divisional Commander’s authority. This dismissiveness of the Divisional Commander’s authority was also evident when he described Major Rowe’s email as: “That’s his judgement call” 68.
[107] On 15 April 2010, Major Rowe again wrote to Mr Brook addressing his comments regarding “bouncy cheques”, “malpractice” at DHQ and questioning the authority of Major Begent to exempt him from entering the Women’s Refuge. Major Rowe referred to his previous email of 12 March 2010 asking Mr Brook to refrain immediately from speaking and corresponding with Officers or staff in an insulting manner and to “act in a way that befits your position” 69.
[108] What was Mr Brook’s response? Four days later, Mr Brook emailed Major Rowe and addressed him; “Sadly, old friend”, telling him that his response “demonstrates your lack of awareness”, that DHQ’s behaviour is “unchristian and dishonest” and “your people have done the salvation army a lot of damage” and infers that DHQ have “sold out to the enemy”.
[109] I find that Mr Brook, at times, from 29 January 2010 to 19 April 2010, conducted himself in such a way that disregarded reasonable and lawful directions of his immediate line manager, Divisional Commander Rowe and did not display, on the occasions mentioned above, due care and diligence in carrying out the duties of Divisional Envoy to fellow employees and Divisional Officers.
[110] While Mr Brook’s conscience may not have reproached him because of what he believed were the injustices in the way TSA dealt with his wife, that cannot excuse his actions, care, diligence and demeanour.
[111] Some things look big when close up but when viewed from far away, they look small. After six months, Mr Brook’s evidence in the witness box still demonstrated discontent towards TSA and he continued to question the judgement of its senior officers.
[112] If I look at the state of Mr Brook’s mind at the time of these incidents as requested by his Counsel, it is clear that he did not suffer any self doubt about what he perceived as the injustice of the treatment to Mrs Brook. As a consequence, he conducted himself in a way that was inconsistent with his contract of employment. While Counsel for the Applicant submitted that he used some “ill chosen” words, I am unable to agree. Mr Brook’s words were carefully constructed to cause particular pain and offense to a Christian organisation. By his own long experience, Mr Brook knew the inferences of his comments would cause maximum affliction.
[113] Counsel for the Applicant approached each incident on a “stand alone” basis and attempted to, both in their investigation and consequences, downplay any inferences. However, what we have is a group of incidents; a succession of events happening over a relatively short space of time. The Employer was entitled to treat Mr Brook’s behaviour with the characteristics of regularity and continuity and that was the evidence before me.
[114] There comes a decisive point in the employment relationship that, based on certain facts (relating to an employee’s conduct or capacity) leads to legal consequences. I am satisfied that the facts in this employment relationship led to TSA having sound, defensible and well-founded reasons to terminate Mr Brook’s employment consistent with Selvachandran v Peterou Plastics Pty Ltd (1995) 62 IR 371 at 373.
Was the dismissal process fair?
[115] In considering whether a dismissal was harsh, unjust or unreasonable, I am required to take into account the provisions contained in s.387 of the Act. The provisions as they related to the process of Mr Brook’s dismissal are as follows.
Was Mr Brook notified of the reasons for his termination of employment?
[116] It is clear on the evidence and the material provided to the Tribunal, especially exhibits A1-17, A1-18, A1-19 and A1-20 that Mr Brook was aware and notified of the reasons for his termination of employment.
Was Mr Brook given an opportunity to respond to the reasons for his termination of employment?
[117] On 28 April 2010, Major Rowe, Divisional Commander, set out the matters which, with the addition of one further email, led to Mr Brook being dismissed from his employment. Mr Brook responded verbally to these matters, primarily through his representative, and son, Mr Craig Brook, on 19 May 2010 and in writing on 17 June 2010.
[118] I am satisfied that Mr Brook was given an opportunity to respond to the reasons for his termination of employment.
Did the Employer unreasonably refuse Mr Brook to have a support person to assist in discussions relating to the dismissal?
[119] I am satisfied that Mr Brook’s support person, Mr Craig Brook, assisted him in responding to the documented reasons for his termination of employment.
If the dismissal related to unsatisfactory performance, was Mr Brook warned about such unsatisfactory performance before the dismissal?
[120] On 12 March 2010, Mr Brook was advised that he should not speak or correspond with Officer personnel or staff of TSA “in such a manner again” 70.
[121] On 15 April 2010, Mr Brook was reminded of the 12 March 2010 warning and was again requested to “cease from this practise (sic) immediately and act in a way that befits your position” 71.
[122] While this may constitute a “soft” form of warnings regarding Mr Brook’s conduct, I am satisfied that Mr Brook was warned about his behaviour.
Did the Employer’s size and human resources expertise have an impact on the dismissal process?
[123] Counsel for Mr Brook conceded that human resource expertise enabled the Employer to conduct itself fairly.
Are there any other matters which FWA considers relevant and which should be taken into account in Mr Brook’s termination of employment?
[124] Counsel for Mr Brook put matters which I should take into account. Firstly, the disconnect between what Mr Brook understood his role to be in Karratha and that of TSA. While Counsel mentioned the Women’s Refuge, the fact is that, by far, the reasons relating to Mr Brook’s dismissal did not involve role “disconnect”, for example, allegations of “malpractice at DHQ”.
[125] Secondly, TSA did not have regard to the Applicant’s age. The assertion is easy to make and evidence was given that TSA endeavoured to salvage the employment relationship. However, in the course of the evolution of the complaints and Mr Brook’s response, TSA shifted from letting him determine his own destiny to prescribing what conduct was expected. In the end, Mr Brook preferred to charter his own destiny and that led to him being dismissed irrespective of his age.
[126] Thirdly, Counsel for Mr Brook submitted that FWA should take into account his state of mind concerning the way his wife was treated by TSA. Mr Heathcote summarised, on behalf of Mr Brook, as follows:
“...there’s no evidence that any regard was had to that [emotional strain]...but near fatal illness, multiple surgeries, lack of pastoral concern, adequate protection of his wife from scandalous and unfounded allegations, callous and uncaring way she was subsequently dismissed” 72.
[127] Essentially, Counsel is requesting that I adopt a charitable view of Mr Brook’s conduct by focussing on his criticisms of TSA and how it dealt with Mrs Brook. Shortly put, because there was no evidence from TSA that it had no regard for these criticisms of itself by Mr Brook, his dismissal was unfair. However, such an assertion is premised on the criticisms being correct and also relevant to his behaviour. If I had to determine Mr Brook’s state of mind, which I am not capable of doing, I would consider the following oral evidence illustrative but not conclusive:
“...If I’ve got a problem with a person, I let them know, and it’s up to them to apologise or let me know that I’m wrong...” 73.
[128] Unfortunately for Mr Brook, the evidence given in the hearing demonstrated that when told he was “wrong”, he responded that people were entitled to their “judgement” and he continued with conduct which was neither expected nor accepted by the Employer.
[129] When considered in its entirety, I am satisfied that the process which led to Mr Brook’s dismissal was fair.
CONCLUSION TO APPLICATION
[130] I am satisfied that there was a valid reason to terminate Mr Brook’s employment with TSA. Further, I am satisfied that the process to terminate Mr Brook’s employment was fair. In conclusion, I am satisfied that Mr Brook was not unfairly dismissed pursuant to s.394 of the Act. In these circumstances, the application will be dismissed and an Order issued accordingly.
COMMISSIONER
Appearances:
Mr S Heathcote, Special Counsel, Sparke Helmore Lawyers for the Applicant.
Mr D Pearson, Freehills for the Respondent.
Hearing details:
2011
Perth:
17 & 18 January
1 Exhibit A1-17
2 Exhibit A1-19
3 Exhibit A1-20
4 Exhibit A1-3
5 PN 108
6 PN 108
7 PN 527
8 PN 530
9 PN 94
10 PN 830
11 PN 835
12 PN 848
13 PN 842
14 Exhibit A1-4
15 Mr Brook’s Statement of Facts as per Directions.
16 Mr Brook’s Statement of Facts as per Directions.
17 PN 141
18 PN 152
19 Exhibit A1-19
20 PN 164
21 Exhibit A1-5
22 Exhibit A1-19
23 Exhibit A2
24 PN 424
25 PN 431
26 PN 173
27 PN 405
28 PN 410
29 Exhibit A1-6
30 Exhibit A1-19
31 PN 449
32 Exhibit A1-7
33 Exhibit A1-19
34 PN 658
35 PN 660
36 PN 661
37 PN 662
38 PN 666
39 Exhibit A1-9
40 Exhibit A1-9
41 Exhibit A1-19
42 PN 477
43 PN 479
44 Exhibit A1-10
45 Exhibit A1-19
46 PN 497
47 PN 498
48 PN 499
49 PN 502
50 PN 290
51 Exhibit A1-16
52 Exhibit A1-16
53 Exhibit A1-11
54 PN 512
55 Exhibit A1-15
56 Exhibit A1-19
57 Exhibit A1-12
58 PN 556
59 PN 559
60 Exhibit A1-13
61 PN 499
62 Exhibit A1-15
63 Exhibit A1-17
64 PN 326
65 A1-19
66 A1-20
67 PN 44
68 PN 556
69 Exhibit A1-13
70 Exhibit A1-12
71 Exhibit A1-13
72 PN 1640
73 PN 431
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