Oliver Wise v Mildura Aboriginal Corporation Incorporated

[2013] FWC 6177

[2013] FWC 6177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Oliver Wise
v
Mildura Aboriginal Corporation Incorporated
(U2013/6329)

COMMISSIONER BISSETT MELBOURNE, 28 AUGUST 2013

Application for relief from unfair dismissal - no valid reason for dismissal - notification of reason for dismissal - opportunity to respond to reason for dismissal - dismissal unfair

[1] Mr Oliver Wise (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal.

[2] Mr Wise was employed by the Mildura Aboriginal Corporation Inc (MAC or the Respondent). He commenced work with the Respondent in October 2007. His employment was terminated on 29 January 2013.

[3] Mr Wise was employed as a driver by MAC. He was responsible for transporting clients of MAC to medical appointments locally and to places such as Adelaide and Melbourne.

[4] Mr Wise was represented, with permission, by Ms Sommers.

[5] The Respondent was represented, with permission, by Mr Millar of counsel.

[6] Evidence was given for the Applicant by the Applicant, Ms Tania Wise, Mr Michael Bell and Ms Cree Clayton.

[7] Evidence was given for the Respondent by Mr Shane McLennan and Ms Amanda Caddy.

Reason for dismissal

[8] Mr Wise was dismissed from his employment following a police check conducted on behalf of the employer in early 2013. That police check 1 showed that Mr Wise had, in October 2012, been charged with possession of ecstasy and unlawful possession of explosives and that he had been fined an aggregate of $350 for both matters and that no conviction was recorded.

[9] A termination letter was provided to Mr Wise (although he disputes that he received it) which relevantly states:

I am writing to you about the termination of your employment with the Mildura Aboriginal Corporation Inc.

I refer to our meeting on the 25th January 2013 and again on 29th January 2013. During these meetings we discussed the results of your annual police check.

The recent charges are as followed are as per the attached document and we consider that your actions fail to comply with our staff code of conduct and warranting summary dismissal. (sic)

You will be paid any accrued entitlements and outstanding remuneration, including superannuation, up to and including the date of this letter. 2

Evidence

Applicant’s evidence

[10] Mr Wise’s evidence is that on 25 January 2013 he was called to a meeting with Mr Shane McLennan. At that meeting he was advised he was being stood down because of a recent criminal conviction that had come to light through a police check. He was advised to return for a meeting on 29 January 2013 and that he could bring a support person to that meeting. He told Mr McLennan at this stage that he had not had a conviction recorded against him and Mr McLennan had said he would check up on that. Mr Wise says the meeting went for five to ten minutes.

[11] Mr Wise says that he attended the meeting on 29 January 2013 along with his mother (Tania Wise) and his grandmother. His evidence is that he was not given an opportunity to explain the circumstances of the charges against him or explain the presence of the ecstasy tablets or the explosive found in his house by the police. He says every time he attempted to explain the circumstances Mr McLennan spoke over him. Mr Wise’s evidence is that Mr McLennan said he would be dismissed. His grandmother got upset and he took her out of the room.

[12] Mr Wise’s evidence is that he drove patients to medical appointments and that often it was just him and the patient in the car. He is aware that some patients he transported have substance abuse problems because he drives them to the sobering up centre near Adelaide. He considers that most of this group would have alcohol problems but agrees some may have drug problems. He is not aware of the illnesses of other patients because he does not talk to them about their medical conditions.

[13] Mr Wise says he cannot recall any staff meetings attended by Ms Caddy where she said that the employer would not tolerate any drug offences. He also has no recollection of being given access to a MAC policy titled ‘Separation - Dismissal’.

[14] A tape of the police interview conducted with Mr Wise in 2012 was played during proceedings. 3 Mr Wise confirmed the tape as being of his interview with police. On that tape Mr Wise agrees that two ecstasy tablets were found in his house when it was searched by police. He said to the police that he had tried ecstasy some 18 months to two years earlier when his grandfather died but had not done so since.4 He says the ‘explosive’ found in his house was a firecracker that he had forgot that he had.

[15] Mr Wise denies he told Mr McLennan the ecstasy tablets were found in the console of his car.

[16] Ms Tania Wise is the Applicant’s mother. She attended the interview with the Applicant on 29 January 2013. She says that on entering the meeting Mr McLennan said to her three times ‘we’re going to be professional about this’ as if somehow she wouldn’t be. Her evidence is that she asked Mr McLennan why the HR person was not at the meeting. She says Mr McLennan’s body language was not good during the meeting. Her evidence is that the meeting went for about five minutes, that Mr McLennan did not give Mr Wise an opportunity to respond and that her mother (the Applicant’s grandmother who was also at the meeting) got upset when Mr Wise was told he would lose his job and that she asked Mr Wise to take his grandmother outside.

[17] Mr Bell gave evidence that not long after Mr Wise commenced employment with the Respondent he attended a meeting with Mr Wise, Mr Ken Wright and Ms Amanda Caddy where the issue of Mr Wise’s criminal record was brought up. He says that at this time Mr Wright said that everyone deserves another chance and they would give Mr Wise one.

[18] When advised that Ms Caddy did not commence employment with the Respondent until a year or so after Mr Wise, Mr Bell agreed that perhaps the meeting was at a later date but he is confident that the meeting occurred as he recalled.

[19] Ms Clayton gave evidence that on 25 January 2013, soon after seeing Mr Wise leave the premises Mr McLennan came into the medical reception area where she worked and, after a short period, said ‘let’s not beat around the bush, Oliver won’t be coming back.’ Ms Clayton says that others were in the area and would have heard Mr McLennan make the statement.

Respondent’s evidence

[20] Ms Amanda Caddy was the Human Resources Manager for the Respondent at the times relevant to this application. She gave evidence that undertaking criminal checks of employees was a condition of government funding, that the Board of the Respondent directed the checks be undertaken on all staff and that there would be concern for staff with ‘a history of substance abuse, child abuse and domestic violence.’ Ms Caddy says that the Respondent takes the view that, to maintain its integrity it must ‘practice what it preaches’ with respect to substance abuse, child abuse and domestic violence.

[21] Ms Caddy’s evidence is that she attended a staff meeting in December 2008 where the Respondent’s intolerance of substance abuse was discussed with staff by the CEO, Mr Wright. She cannot recall if the Applicant was present at that meeting. She does recall that staff were advised that offences relating to substance abuse, child abuse and domestic violence could result in termination of employment.

[22] Ms Caddy’s evidence is that she was responsible for arranging for criminal checks to be conducted on employees in early 2013. Some weeks later she says she received the results of these checks although not all at the same time. On receipt of the police check with respect to the Applicant she assisted Mr McLennan prepare a letter for the Applicant notifying him of the potential effect on his employment of the result of the check, that he was stood down and inviting him to a meeting to provide a response.

[23] Mr McLennan was the District Manager at Swan Hill for the Respondent at the time. His evidence is that he met with the Applicant on the morning of 25 January 2013 where he explained to the Applicant that he would be stood down until a meeting on 29 January and that the matter involved a criminal record check which showed a conviction for possession of drugs and explosives. The Applicant said that there was no conviction recorded and Mr McLennan explained that the record shows he must have pleaded guilty to the charges. He says the Applicant become upset so he allowed him to leave. Mr McLennan’s evidence is that he had a letter ready to give to the Applicant but he did not do so. He says however that the Applicant was aware what the meeting on 29 January was to be about and he knew he could bring a support person.

[24] Mr McLennan said in his evidence that the meeting of 25 January 2013 was ‘a short tense little meeting...all I could do was demonstrate empathy toward him because it was clear what was about to eventuate.’ 5

[25] Mr McLennan’s evidence is that the Applicant volunteered during the meeting on 25 January 2013 that the Court matter was to do with a police check on the vehicle he was driving when the police found drugs in the console of the car.

[26] In the meeting of 29 January 2013 Mr McLennan says the Applicant attended along with his grandmother and mother. The Applicant again queried why he was being dismissed as there was no conviction recorded in the Magistrates’ Court. Mr McLennan explained to the Applicant that the Applicant must have agreed to the summary read out in Court. It was not relevant that the Magistrates did not record a conviction as he must have pleaded guilty. At this point he says the Applicant became upset and left. He says he handed both the letter of 25 January (the notice of the meeting on 29 January) and the letter of termination to Ms Tania Wise.

[27] Mr McLennan agreed that he did not ask the Applicant what he told the Magistrate, why the Applicant thought the Magistrate was lenient in the decision and whether or not the Applicant had sought any counselling and support in relation to the incident.

[28] Mr McLennan says he wrote the letter of termination prior to the meeting of 29 January 2013 and the break between the meetings of 25 and 29 January was useful as he could ‘confirm what direction we’re going’. 6

Legislation

[29] The Act states:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.

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 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 the FWC considers

Findings of fact

[30] The following findings are made on the basis of all of the witness and written evidence before me. Some, but not all, of these matters are uncontested.

The ecstasy tablets

[31] I find, on the basis of the evidence of the Applicant, the police tape of interview with the Applicant and the police check that the Applicant was charged with possession of ecstasy and explosives and that he pleaded guilty to the charges in the local Magistrates’ Court. I also find that no conviction was recorded with respect to these matters and the Applicant was fined a combined amount of $350.

[32] I am satisfied, on the basis of the police interview and the evidence of the Applicant, that there were two ecstasy tablets and that the explosive was a fire cracker and that these were found in his home.

[33] I accept the Applicant’s evidence that he had come into the ecstasy some years earlier, had tried it around the time of his grandfather’s death and had not used it since. I also accept his evidence that the explosive was a fire cracker. There is no evidence to the contrary or even any evidence that might lead to an inference to the contrary.

[34] There is no evidence that the Applicant is a drug user or that he was ever impaired by drug use at work.

[35] I accept that the applicant was fined, without conviction, for possession of ecstasy and possession of an explosive substance.

Meeting of 25 January 2013

[36] I prefer the evidence of the Applicant to that of Mr McLennan that the Applicant did not say to Mr McLennan in the meeting of 25 January 2013 that the ecstasy tablets were found in the console of the car he was driving. The Applicant was emphatic in his evidence on this. His evidence is consistent with his police interview and there was no reason for him to mislead the Respondent as to where the drugs were found. He gained no benefit, and perhaps the conduct may have been more harshly viewed, by saying the drugs were found in the car. I do not suggest that Mr McLennan has deliberately misled the Commission in his evidence but rather I choose to accept the evidence of the Applicant on this issue.

[37] I therefore do not find that the Applicant mislead the Respondent on this matter.

[38] I am satisfied that the Applicant was aware, following the meeting of 25 January 2013, that he was facing dismissal from employment as a result of the police check and that the meeting of 29 January would be his opportunity to respond to the Respondent.

[39] I am not satisfied however that the Applicant was aware of who would be at the meeting of 29 January 2013.

[40] I am satisfied that the meeting of 25 January 2013 was a short meeting.

Meeting of 29 January 2013

[41] I accept the evidence of the Applicant that the meeting of 29 January 2013 with Mr McLennan went for no more than five minutes and that the Applicant was not given an opportunity to explain the circumstances surrounding the charges being brought against him.

[42] I am also satisfied that the Applicant was not asked for an explanation of the circumstance surrounding the October hearing in the Magistrates’ Court.

[43] Mr McLennan gave reasonably clear evidence of the discussions and circumstances surrounding the meetings of 25 January (the Friday) and 29 January 2013 (the following Tuesday,).

[44] The following exchange took place between Mr McLennan in response to examination-in-chief by Mr Millar:

Do you remember anything else being said on that Friday?---With Oliver, no, not much more. No, it was a short tense little meeting and, you know, all I could do was demonstrate empathy toward him because it was clear what was about to eventuate.

Then you arranged for a subsequent meeting on the Tuesday?---Yes.

What happened in that meeting?---Yes. Oliver - his grandmother called Ivy Bell, and his mother, Tania, were in that meeting, and they came into my office. 7

What happened - - -?---Yes. Oliver - I was focused on Oliver, I remember that, because Oliver was on my left, Ivy in the middle, and Tania was on my right on the other side of the table. I was focused on Oliver and he became upset again and moments later stood up and left. 8 (654)

[45] In cross-examination by Ms Sommers Mr McLennan said the following:

You just said in your evidence that you empathised with Oliver because it was clear what was about to eventuate. What do you mean by that?---Well, it was clear - it was clear that Oliver was going to lose his position as a driver at the service, and I stated that to him.

I see. So you stated that to him on the Friday, the first meeting, okay?---No, I didn’t say that on the Friday. What I said on Friday is, “You’ve got every chance to come back to the meeting on the Tuesday. You can bring a support person and this is a really good time for you to explain what the criminal check has revealed.”

I don’t know if I have misheard you. It’s just that I had the understanding that you just said - well, previously you were talking about the Friday meeting?---Mm’hm.

And you were assessing Oliver’s demeanour and you said he was upset and then you said you empathised with him because it was clear what was about to eventuate and you were saying that in relation to the first meeting?---Yes.

Okay?---Yes. No. No, I just want to clarify. I didn’t say at all that he was terminated on that Friday but - - -

You just said it was clear from your point of view that he will be terminated? ---Yes. 9

[46] In re-examination Mr McLennan clarified:

You were asked some questions, Mr McLennan, about the two meetings that you attended and the decision to terminate employment. You actually - can you actually say when you finally decided upon termination of employment as the outcome?---For Oliver we’re talking about?

Sorry, yes. Back to Mr Wise, yes?---Tuesday. Tuesday the 29th.

At what stage did you make the decision to terminate employment?---That Tuesday morning. Because the good thing about having that break is it gives me time to also do some more research, confirm what direction we’re going, which I did, so come Tuesday morning it was - I made that decision that he would be terminated. I stated that to him. 10

[47] On the basis of this evidence I find that the decision to terminate the Applicant’s employment was made prior to the Applicant being given an opportunity to respond to the reasons termination was being considered.

[48] Whilst Mr McLennan appears confused at times about what he said and thought at the meetings of 25 January and 29 January 2013 his response in re-examination that he made the decision to terminate the Applicant’s employment on the Tuesday morning after having the break and being able to do some research suggests that the decision to terminate the Applicant’s employment was made, not based on the how the Applicant responded or what the Applicant had to say on the Tuesday, but based on Mr McLennan confirming the direction to be taken over the intervening days.

[49] That the decision to terminate the Applicant’s employment was taken prior to the conclusion of the meeting on 29 January 2013 is confirmed by Mr McLennan’s statement that, on 25 January, it was clear what was about to eventuate.

Policies of the Respondent

[50] The Applicant signed a second contract of employment on 3 September 2008. That contract specified that a special requirement and/or condition of employment was that the Applicant ‘must pass Criminal Records Check’. I note in passing that there is nothing to signify what a ‘pass’ in this context may be. Given that the Applicant continued to work for the Respondent after the signing of this contract and at the time he had matters that would show up in such a check, I accept that he did, at that time, pass a ‘criminal records check’ in 2008.

[51] The Respondent has a policy that states that behaviour warranting summary dismissal includes offences outside the workplace where such behaviour is incompatible with the employee’s ability to faithfully discharge his or her duty to the employer. 11

[52] I find on the basis of the evidence of Ms Caddy that in December 2008 the then CEO of the Respondent addressed a staff meeting in Swan Hill in which he advised that the Respondent would be intolerant of its employees being involved in criminal offenses and that drug offenses along with child abuse and domestic violence were specifically mentioned. 12 There is no evidence that the Applicant was at this meeting. The Applicant was asked of a meeting Ms Caddy may have addressed on this issue around this time but indicated that he could not recall her addressing such a meeting. Ms Caddy’s evidence is that she never addressed such a meeting.

[53] There is no evidence of any further information being circulated to staff following the December 2008 meeting of the process that would be followed or the consequences should an employee be involved in any offence relating to the possession or use of drugs.

Consideration

[54] I find that the Applicant is protected from unfair dismissal, the dismissal did not involve a redundancy, the Respondent is not a small business and the application was filed within the requisite period.

[55] In determining if the dismissal is harsh, unjust or unreasonable it is necessary that I consider each of the matters set out in s.587(a)-(e) of the Act.

Valid reason

[56] In Selvachandran v Peteron Plastics Pty Ltd Northrop J held that ‘the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason.’ 13

[57] In Rode v Burwood Mitsubishi a Full Bench of the AIRC held that ‘the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.’ 14

[58] In Blythe Chemicals v Bushnell Dixon and McTiernan JJ found that:

Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impeded the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is ground for dismissal. But the conduct of the employee must itself involve the incompatibility, conflict or impediment, or be destructive of confidence. An actual repugnance between his acts and the relationship must be found. It is not enough that ground for uneasiness to its future conduct might arise. 15

[59] In Rose v Telstra Ross VP considered whether ‘out of hours’ conduct may justify a dismissal. He found that:

It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

● the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

● the conduct damages the employer’s interests; or

● the conduct is incompatible with the employee’s duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct. In this regard I agree with the following observation of Finn J in McManus v Scott-Charlton:

“I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified.”  16

[footnotes omitted]

[60] In Hussein v Westpac Banking Corporation 17 Mr Hussein pleaded guilty to a charge of obtaining property by deception relating to the fraudulent use of an ANZ bank card. He was sentenced to a term of imprisonment although this was suspended. Mr Hussein worked for Westpac who then investigated the matter and terminated his employment. Staindl JR, in deciding the matter, found that the appropriate test in determining if there was a valid reason for the termination of Mr Hussein’s employment is ‘whether or not the conduct has a relevant connection to the employment.’18 Mr Hussein’s job with Westpac was to assist people who came into the bank by interpreting for them (he spoke Greek, Turkish and English), helping them complete transactions, verifying signatures and so on. The bank had a reasonable expectation that he would be trustworthy and that he could be relied on and he would be honest in carrying out his duties. For this reason his Honour found that there was a relevant connection between Mr Hussein’s out of hours conduct and his employment.

[61] The conduct complained of must therefore have a requisite connection to the employment and must be so serious to indicate a repudiation of the contract of employment.

[62] The Respondent says the conduct of the Applicant is not compatible with the Respondent’s responsibility to the community with which it works. Further, the Respondent submits that the Applicant’s conduct presents an unacceptable risk to the Respondent as the Applicant was employed to transport patients to and from medical appointments. When pressed on the risk the Respondent stated that the Respondent may leave itself liable to some charge or penalty if a patient, whilst being transported by the Applicant, suffered from an overdose and it was found that the driver had a previous drug conviction.

[63] The Respondent also submits that, on the basis of the Applicant’s contract and the policies of the Respondent it is untenable for the Applicant to continue in employment with the Respondent.

[64] The Respondent has a policy with respect to dismissal¹⁹ which details conduct which may warrant summary dismissal. This includes misbehaviour, disobedience, dishonesty, intoxication, negligence, fighting, insubordination, abuse, absenteeism and tardiness. In addition the policy also says of offenses outside the workplace:

In some situations, offenses committed outside the workplace may warrant dismissal. A general rule is that the employee’s behaviour must be incompatible with a faithful discharge of his or her duty to an employer. Examples would be where an employee is convicted for an offence and the penalty frustrates his or her ability to fulfil the contract of employment, or where the employer has a reasonable apprehension that the employee might commit a criminal act in the employment situation.

[65] I am not convinced in this case that there is a connection of the kind necessary between the out of hours conduct of the Applicant and his employment that, viewed objectively, is likely to cause serious damage to the employment relationship or that damages the employer’s interests or that the conduct is incompatible with the employees duty as an employee.

[66] In the matter to be decided Mr Oliver was found with two ecstasy tablets in his house. He does not deny that this conduct occurred.

[67] The Applicant was not found to be a user of drugs or a dealer of drugs. He was not found to be under the influence of drugs at work. His house was searched by the police and in that process they found two ecstasy tablets that the Applicant says are about 18 months old (a matter on which there is no dispute).

[68] Whilst I accept that the Respondent’s aim is the ‘engage, support and strengthen Aboriginal people effected by drug and alcohol use, mental illness and social disconnection’ there is nothing in the finding of the two tablets in the Applicant’s house to seriously damage the employer’s interests or to suggest that the conduct of the Applicant is incompatible with his continued employment.

[69] This is not to condone the Applicant in having the drugs in his house but on an objective analysis the conduct does not provide a sound, defensible or well founded reason to dismiss the Applicant from his employment.

[70] In this case there is a no link between the conduct complained of and the Applicant’s employment. I do not consider the finding of two ecstasy tablets said to be 18 months old to be so serious as to suggest a repudiation of the contract of employment.

[71] The reach into the employees out of hours conduct cannot go so far as to control all aspects of the employee’s private life. The conduct must be serious. In this case the conduct itself was so minor that the Magistrate let the Applicant go with a $350 fine. There is no conviction recorded against the Applicant. The Respondent has reacted to this in a manner disproportionate to the conduct.

[72] The Respondent says that any continuation of the employment of the Applicant may result in the Applicant failing to fulfil its duty of care to the community. When pressed, the Respondent suggested that this might arise if the Applicant was transporting a patient who might suffer from an overdose of drugs and the Applicant was implicated in this. I am not convinced by that argument. As I said there is no suggestion that the Applicant is involved in any illegal drug related activities. If he were, my views may well be substantially different.

[73] Whilst I appreciate some uneasiness on the part of the Respondent there is no basis on which any inference could be drawn about the conduct and the Applicant’s employment. For the reasons given I do not find that there is a sufficient connection between the Applicant’s conduct and his employment.

[74] Even if the connection is there I am not satisfied that the conduct was of such a serious nature to suggest a repudiation of the employment contract by the Applicant.

[75] The Respondent also submits that the Applicant lied in his discussion with Mr McLennan in that it says he told Mr McLennan that the ecstasy tablets were found in the console of a car he was driving when it was pulled over and searched by the police. In this respect, relying on the decision in Telstra v Streeter 20 the Respondent contends that the dishonesty of the Applicant is a valid reason for dismissal.

[76] In Streeter the Full Bench of the AIRC found that Ms Streeter had been dishonest with Telstra during an investigation into her conduct. She admitted, during proceedings in the AIRC at first instance, that she had lied to Telstra. The Full Bench found that it was reasonable for Telstra to conduct an investigation in to her out of work conduct, and the questions asked of her had been reasonable in the circumstances.

[77] In this case there has been no investigation. Mr McLennan admits that the meeting on 25 January 2013 was a short, tense meeting. It was not an investigation. It was a meeting to stand down the Applicant pending an investigation. The matter was not raised again by Mr McLennan.

[78] I have found above that Mr Wise did not tell Mr McLennan that the drugs had been found in his car. There is no ground on which to find that the Applicant was dishonest in his answers. This does not provide a valid reason for the termination of the Applicant’s employment.

[79] For all of these reasons I find that there is no valid reason for the termination of the Applicant’s employment.

Whether the person was notified of that reason

[80] The Applicant was advised on 29 January 2013 of the reason for his dismissal.

[81] In Crozier v Palazzo Corporation Pty Limited a Full Bench of the AIRC found that:

As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. 21

[82] Mr McLennan did not provide the applicant with the letter 22 he had prepared with respect to the meeting on 29 January 2013 prior to the meeting of 29 January although I accept that he had it ready when he spoke to the Applicant on 25 January. In any event I do not consider that letter would satisfy the need for the Applicant to be provided with notice of the reason for his dismissal for the purpose of given him an opportunity to respond. The letter, ultimately given to the Applicant on 29 January at the time of the termination of his employment, provided no detail of the allegations against the Applicant, the process to be followed by the Respondent or the likely consequences if the conduct was proven or no satisfactory explanation was given.

[83] As it was, the Applicant was aware that the matter related to his Court appearance in October 2012 and that he should return on 29 January 2013 to give his side of the story and bring a support person because Mr McLennan advised him of this when he was stood down. It is not clear that the Applicant was aware of the potential consequences.

[84] It is of concern that the Applicant was not provided with more and written details of the matter under consideration by the Respondent. Mr McLennan admits that the Applicant was upset in the meeting of 25 January and that he allowed the Applicant to leave. Given these circumstances an appropriately worded letter detailing all relevant issues would have assisted in the meeting on 29 January. As it was, the Applicant was not given a letter. Even had he been given the letter of 25 January 2013, I am not convinced it is fit for the purpose for which it is intended.

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

[85] The evidence of Mr McLennan with respect to the meetings of 25 January and 29 January 2013 is set out in some detail above. I do not repeat it here.

[86] Mr McLennan considered he was following policy. There is, however, no clear cut policy that any offence with respect to drug-related issues, whether resulting in a conviction or not, will result in termination of employment. Mr McLennan had made up his mind prior to hearing from the Applicant on 29 January 2013 to terminate the Applicant’s employment.

[87] For these reasons I do not consider that the Applicant was given an opportunity to respond prior to the decision being taken to terminate his employment.

Any unreasonable refusal by the employer to allow the person to have a support person present

[88] The Applicant was given the opportunity to have a support person present.

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

[89] No submission is made by the Respondent as to what effect the size of the enterprise or lack of access to appropriate expertise had on the procedures followed in effecting the dismissal. I therefore consider this a neutral issue. This should not be taken to read that the size of the enterprise somehow excuses the method by which the dismissal was effected. The Applicant was entitled to procedural fairness and the evidence suggests he was not afforded this.

Other matters

[90] The Applicant submits that the treatment of the Applicant was disproportionate to his misconduct and that his treatment is inconsistent with that of other employees with criminal backgrounds and that the Respondent was well aware of his earlier criminal record.

[91] There is no issue with respect to the Applicant’s performance.

[92] The Respondent raised some issues associated with the risk it may be exposed to in some hypothetical circumstances if a patient took an overdose and the Applicant was transporting the patient at the time. On any reasonable view I cannot draw the inference the Respondent is inviting me to make.

Was the dismissal harsh, unjust or unreasonable?

[93] In Bryne & Anor v Australian Airlines the High Court found that:

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 23

[94] In considering the decision in Byrne a Full Bench of the AIRC found that:

The above extract is authority for the proposition that a termination of employment may be:

● unjust, because the employee was not guilty of the misconduct on which the employer acted;

● unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or

● harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.

The joint judgment also supports the proposition that the task of the judge at first instance was to consider whether, on the evidence given at the trial, the employer was in breach of the relevant award provision, provided that the evidence concerned circumstances in existence when the decision to terminate the employment was made. 24

[95] For all of the reasons I have given above I consider the termination of the Applicant’s employment to be unjust.

[96] In Kolodjashnij v J Boag and Son Brewing Pty Ltd 25 the Full Bench considered an appeal from a decision in which it was found that there was a valid reason for the termination of Mr Kolodjashnij’s employment after he was found to be in breach of the employer’s safe driving policy by driving with a blood alcohol content of 0.154. In the decision at first instance the Commission found that:

[54] Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination.

[97] In that case the appeal went to the proportionality of the response of the employer in dismissing Mr Kolodjashnij. The Full Bench ultimately found that the Commissioner as first instance had not erred and had properly considered the issue of proportionality in reaching her decision.

[98] Even if I am wrong in my conclusion above and there is a valid reason for the termination of the Applicant’s employment, in all of the circumstances I would find that the termination of his employment was harsh. If the Respondent’s real concerns was the Applicant continuing to drive patients following the appearance in the Magistrates’ Court it could have moved him to alternative duties. It did not do so and there is no evidence that it considered any alternative to dismissal.

[99] The Applicant had an unblemished work history with the Respondent. The Applicant lives in Swan Hill, a small rural town with very limited employment opportunities. The loss of stable employment in response to a single incident for which no conviction was recorded has ramifications for the Applicant that go beyond the loss of employment.

[100] For all of the reasons I have given I find that the dismissal of the Applicant was harsh and unjust.

[101] In the circumstances I must conclude that the Applicant was unfairly dismissed.

Remedy

[102] The Applicant does not seek reinstatement and in the circumstances I do not consider reinstatement appropriate. It is therefore necessary that I consider compensation.

[103] In determining appropriate compensation the Act states:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. Disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $61,650 from 1 July 2012

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

Consideration

[104] In determining the amount of compensation I have considered all of the matters set out in s.392 of the Act.

[105] The Applicant had worked for the Respondent for seven years. He received $19.60 per hour with the Respondent prior to the termination of his employment ($744.80 per week).

[106] Had the Applicant’s employment not been terminated I am satisfied that he would have remained employed by the Respondent for a further three years. The Applicant’s performance in his job was satisfactory and he was, on all accounts, a conscientious employee. In a country town where employment opportunities are limited I am satisfied he would have remained in the same employment.

[107] Had the Applicant remained in employment with the Respondent he would have earned $116,188.80 over the next three years.

[108] The Applicant says that, following the termination of his employment he sought employment in local stores but was not successful. He now works on a voluntary basis a couple of days a week on a relative’s farm. He has also commenced a training course on induction to mining. At the date of hearing however (some five months after his dismissal) the Applicant did not have full time employment.

[109] The Applicant is earning $15 per hour working about 18 hours per week on the farm ($270 per week). There is no indication as to when this work will end. I therefore assume it is on-going. He commenced this work about a week after his employment was terminated. As at the date of making this order I estimate that the Applicant has earned $8,000.

[110] I believe the Applicant has taken steps to mitigate his lost earnings. His evidence is that he sought work unsuccessfully once his employment was terminated. He is registered with an employment agency. His efforts to find work had, as at the date of the hearing of this application, been limited to the Swan Hill area. I do not criticise the Applicant for looking with his local area.

[111] I am confident that the Applicant will, through the training he is undertaking, be able to further mitigate his loss. It is not, however, possible for me to estimate the value of future employment to him.

[112] As at the time of the making of this order the Applicant’s loss, based on my estimate of how long he would have remained with the Respondent, is $108,188.80.

[113] This amount should be reduced for contingencies. I will, in this case, apply a general contingency of 15% to the amount. There is nothing to suggest that any higher amount is warranted. The Applicant’s loss is therefore $91,960.00.

[114] The Applicant cautions that, in determining the amount of compensation I should be mindful of the message this may send to the local community that, even though the Applicant was found with drugs, he is being rewarded with a payment. There is no question that the Applicant’s conduct contributed to the actions taken by the Respondent. Had the Applicant’s employment not been terminated it is likely he would have been otherwise disciplined. For this reason I will reduce the amount by 20%. This leaves a sum of $73,568.00.

[115] I have not considered any component for shock, humiliation or distress.

I do not consider that the award I will make will adversely affect the viability of MAC.

[116] The amount I have settled upon is above the compensation cap which, in this case, is $19,364.00.

[117] I therefore determine that the Applicant be paid an amount of $19,364.00. This amount should be taxed according to law. I do not consider this will adversely affect the viability on the Respondent’s business.

[118] I note that the Applicant is in receipt of Centrelink benefits. The Applicant should ensure that he provides any required advice to Centrelink on receipt of any money arising from this decision and the associated order.

[119] An order with respect to the amount owing shall be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Ms Somers for the Applicant.

Mr Millar of counsel for the Respondent.

Hearing details:

Melbourne

August 8, 9.

2013

 1   Exhibit R1, attachment MC-5.

 2   Exhibit R1,, attachment MC8.

 3   Exhibit A1.

 4   Exhibit A1 at approximately 5:20.

 5   Transcript PN648.

 6   Transcript PN 717.

 7   Transcript PN648-50

 8   Transcript PN654.

 9   Transcript PN666-71.

 10   Transcript PN715-7.

 11   Exhibit R1, attachment MC-3, page 8.

 12   Exhibit R1, paragraph 15.

 13 (1995) 62 IR 371, 373

 14   Print R4471, [19].

 15 (1993) 49 CLR 66, 81.

 16   [1998] AIRC Q9292

 17 (1995) 59 IR 103.

 18 91995) 59 IR 103, 107.

19 Exhibit R1, attachment MC-3.

 20 (2008) 170 IR 1.

 21   AIRC Print S5897, [73].

 22   Exhibit R2, attachment SM1.

 23 (1995) 185 CLR 410, 465 per McHugh and Gummow JJ.

 24   McLauchlin v Australia Meat Holdings Pty Ltd (1998) 84 IR 1,10.

 25   [2010] FWAFB 3258.

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