Pantelis (Peter) Lambos v ACT Government as represented by the Territory and Municipal Services Directorate T/A Action (Australian Capital Territory Internal Omnibus Network)

[2016] FWC 3885

[2016] FWC 3885

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pantelis (Peter) Lambos
v
ACT Government as represented by the Territory and Municipal Services Directorate T/A ACTION (Australian Capital Territory Internal Omnibus Network)
(U2015/9740)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 17 JUNE 2016

Application for relief from unfair dismissal – harsh, unjust or unreasonable – dismissal not unfair – application dismissed.

[1] Mr Pantelis (Peter) Lambos (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) on 28 July 2015 alleging that the termination of his employment by Australian Capital Territory (ACT) Government as represented by the Territory and Municipal Services Directorate (TAMS - the Respondent) on 8 July 2015 was unfair. Mr Lambos was employed as an Australian Capital Territory Internal Omnibus Network (ACTION) bus driver.

[2] The application was heard on 7 and 20 April 2016. At the hearing, Mr Ian Meagher appeared with permission for the Applicant, while Mr James Macken of Counsel appeared with permission for TAMS. Mr Lambos gave evidence on his own behalf, together with Mr Mark Barnwell and Mr Bingyu (Edward) Huang, both of whom are ACTION bus drivers. Mr Wayne Mead, ACTION’s South Region Depot Manager; Mr Pedro Gonzalez, ACTION’s Inventory Manager, Fleet; Mr Wayne Lange, ACTION’s North Depot Operations Manager; Ms Julie Mylchreest, ACTION’s Workplace Health and Safety Coordinator; and Mr Malcolm Howard, ACTION’s North Region Operations Manager, all gave evidence for TAMS.

[3] For the reasons set out below, I have found that Mr Lambos’ dismissal was not harsh, unjust or unreasonable. Mr Lambos’ application will therefore be dismissed. An Order to that effect will be issued in conjunction with this decision.

Background

[4] Mr Lambos commenced employment with the Respondent in June 2008 as a temporary employee before being permanently appointed in early January 2009.

[5] In September 2014 Mr Lambos experienced the driver’s seat on the bus he was driving “bottoming out”. This is where the bus seat falls to the bottom of its range of movement when it goes over a bump etc and hits the pillar attaching the seat to the bus floor causing potential jarring and injury to the driver. Mr Lambos reported the incident to Mr Jeremy Wee, ACTION’s North Regional Manager.

[6] Mr Lambos subsequently contacted Ms Mylchreest seeking to discuss his safety concerns regarding driver’s seats bottoming out. The precise timing of that contact is disputed. However, it is not disputed that Mr Lambos contacted Ms Mylchreest on 18 December 2014. While the specifics of that conversation are also disputed, it is not disputed that during the conversation Mr Lambos mentioned “Columbine”, i.e. the 1999 massacre at Columbine High School in the United States.

[7] Ms Mylchreest immediately reported the matter to Mr Howard. Ms Mylchreest subsequently sent an email to Mr Howard at 9.29am on 18 December 2014 which stated, among other things, that:

“I have just had a very disturbing telephone call from Peter Lambos … @ 9:07.

Mr Lambos stated that he, Mark Barnwell, Eddie Ewen [Mr Huang] and I needed to sit down and have serious discussions about the despicable attitude of Action Management. He stated that they, management, had employed whistleblowing tactics to discredit him and that he, Peter Lambos, had had enough and there would be reprisals.

He stated that I needed to speak to Damien Huss [Haas], but was not able to provide me with contact details.

He stated that he had had enough of Action and management were well aware. He refuses to take a backward step threatened that ‘if Action management touch me, this will be another Columbine’.

He stated that Shared Services, from … to … were corrupt. That he, Peter Lambos, had an impeccable record and they knew it but were determined to discredit him.

During the course of the conversation I had to ask Mr Lambos to refrain from shouting at me and suggested that he was clearly becoming agitated so I felt it better for all concerned if we called it into the call. He appeared to calm down and stated that he would see me when he attended work.” 1

[8] Later that morning, Mr Lambos came to visit Ms Mylchreest. Mr Howard saw Mr Lambos and asked to speak to him at which time he stood Mr Lambos down on full pay. Mr Lange was asked by Mr Howard to witness that conversation. Mr Howard reported the incident to the police later that day.

[9] On 19 December 2014 TAMS wrote to Mr Lambos confirming its intention to suspend him from duty with pay with immediate effect. The letter cited the following allegations of serious misconduct:

● Mr Lambos’ statement of 18 December 2014 that “if ACTION touch me, this will be another Columbine”; and
● inappropriate behaviour to colleagues in breach of the Respect Equity and Diversity framework. 2

[10] On 7 January 2015 TAMS wrote to Mr Lambos seeking his response to allegations of misconduct. The letter set out the allegations as follows:

“It is alleged that on the 18 December 2014 you:

1. Behaved in an aggressive manner including shouting in a telephone conversation with Ms Julie Mylchreest.

2. Made comments in relation to the despicable attitude of ACTION Management.

3. Made comments that ACTION Management had employed whistleblowing tactics and the would be reprisals.

4. Made the comment “if ACTION touch me, this will be another Columbine”.” 3

[11] Mr Lambos’ then representative, Mr Damien Haas, responded on Mr Lambos’ behalf on 20 January 2015. Among other things, Mr Haas stated that Mr Lambos had advised that he actually said “I am scared. I am scared that something is going to happen to me, and if it does there is going to be another Columbine.” 4

[12] TAMS replied on 26 February 2015 advising Mr Lambos that it had determined that the allegations had been substantiated on the balance of probabilities and that they constituted misconduct under Clause H10 of the ACTION Enterprise Agreement 2013-2017 5 (the Agreement). The letter also stated that a decision in relation to the sanction to be applied would be held over pending Mr Lambos undertaking a psychiatric assessment. That psychiatric assessment was provided on 9 April 2014 and concluded, among other things, that:

● Mr Lambos considered that he had been poorly treated and tended to project any difficulties onto management;
● Mr Lambos now realised that there were consequences to unacceptable behaviour;
● the most appropriate treatment would be to deal with any breaches in a disciplinary manner by performance management; and
● Mr Lambos’ personality difficulty did not extend outside relationships with authority figures, both management and the union, and he was quite able to undertake the duties of a bus driver. 6

[13] Following receipt of the psychiatric assessment TAMS wrote to Mr Lambos again on 22 May 2015 stating that the assessment provided no justification for Mr Lambos’ behaviour and reiterating TAMS’ intention to terminate Mr Lambos’ employment 7.

[14] On 19 June 2015 Mr Lambos’ new legal representative responded to that letter. The response concluded on the following basis:

“In all of the circumstances, the termination of Mr Lambos’ employment is not warranted. It would be a harsh, disproportionate response to the idle threat of 18 December 2014. It would fail to pay proper regard to the many mitigating factors, including the genuine concern Mr Lambos held about the serious issues of the health, safety and welfare of bus drivers, the genuine remorse he has shown (including an almost immediate apology), the admission he has made and his otherwise lengthy service with ACTION. Whilst a single instance of misconduct has been raised against Mr Lambos, it is heavily outweighed by the factors in his favour.” 8

[15] Mr Lambos was subsequently dismissed with effect from 8 July 2015. The termination letter stated, inter alia, that:

“I have received your written submission and considered it in reaching my final decision. My consideration of your submission is detailed as follows.

… I acknowledge that you had concerns regarding the health and safety of ACTION employees and I encourage all staff to report health and safety concerns. However, your comment to Ms Mylchreest was threatening and cannot be viewed lightly nor condoned.

I do not accept the submission that ‘no reasonable person would have believed that the threat was real’ …

I do not accept that a threat of violence is not a valid reason for termination, it was not for Ms Mylchreest, nor ACTION management, to know that you did not intend to carry out a shooting or violent act or that you did not have the means to carry out a shooting. As a Directorate, we have a duty of care to ensure that all employees are protected and we take all threats and acts of violence seriously and do not condone such behaviour.

I note that you received a formal direction in January 2014, specifically in relation to negative comments made in relation to ACTION management, as a group and individually. I note that at this time you were directed to undertake further training in relation to your behaviour, noting that you undertook ‘Developing Emotional Intelligence’ training through CIT Solutions on 25 June 2014. Therefore, I would expect that you would be cognisant of your behaviours and the comments made to Ms Mylchreest.

Consequently, I remain of the view your employment will therefore be terminated with effect from the date of this letter. You will be paid in lieu of the five weeks notice required by the Fair Work Act 2009.” 9

The Applicant’s case

[16] Mr Lambos submitted that he had been vocal in expressing his concerns about drivers’ seats bottoming out and that at the time he felt recriminated against by his ACTION colleagues and had fears for his own safety. While Mr Lambos admitted that he used the words “I am scared. I am scared that something is going to happen to me, and if it does there is going to be another Columbine”, he contended that the words and the context in which they were said did not constitute a threat. Mr Lambos disputed using the words “If ACTION touch me, this will be another Columbine” which Ms Mylchreest and ACTION attributed to him.

[17] Mr Lambos further submitted that in this case the words he used could only be found to constitute a threat by inference and that the appropriate action, if any, to be taken by TAMS ought to have been limited to performance management. Mr Lambos further contended that his termination was, in all the circumstances, unfair and unnecessary. As to remedy, Mr Lambos sought reinstatement and the restoration of lost wages from the date of his dismissal.

[18] In support of his submissions Mr Lambos relied on a number of authorities, including WA Davis v Colda Nominees 10, Douglas Miralles v Epic Security Pty Ltd T/A Epic Security11 (Miralles) and Gianfranco Priolo v Anthony’s Manufacturing Jewellers12 (Priolo).

[19] At the hearing Mr Lambos took issue with the investigator not being called to give evidence, contending that there was no evidence that the investigator did anything after he received what he perceived to be an admission. Mr Lambos also submitted that there were procedural errors throughout the investigation. With regard to the various complaints about Mr Lambos highlighted by Mr Howard, Mr Lambos contended that they all concerned technical performance issues related to driving a bus and that there was no evidence that he had been cautioned that his employment was at risk.

[20] Mr Lambos deposed in his witness statement 13 that he had been concerned about the drivers seats on some ACTION buses bottoming out since around late 2009 and that in about August 2011 he submitted an Incident Report Form (IRF) in relation to some general concerns he had with ACTION buses, though the IRF did not specifically complain about seats bottoming out. Mr Lambos further deposed that also around August 2011 he felt bullied by ACTION management and that he subsequently approached Mr Haas who on 28 April 2013 wrote to ACTION on behalf of both Mr Lambos and Mr Huang seeking an end to bullying behaviour towards them by managers and employees of ACTION. That letter14 did not specify the alleged bullying behaviours.

[21] Mr Lambos also deposed, inter alia, that:

● around September 2014 the seat on the bus he was driving bottomed out and that he reported the incident;
● he contacted Ms Mylchreest in early November to discuss his safety concerns regarding drivers seats, with Ms Mylchreest indicating that she was unable to meet with him for about 2 weeks;
● he contacted Ms Mylchreest again about 2 weeks later to try and arrange an appointment, with Ms Mylchreest indicating that she would contact Mr Lambos the following week;
● in the period leading up to 18 December 2014 he was subjected to further workplace bullying by Mr Lange, with the first incident occurring in early December 2014 when Mr Lange stood over Mr Lambos in a threatening manner at the water cooler and said words to the effect “Well things are going to f…..g change around here now, aren’t they? Now that she [Ms Mylchreest] is here?” and the second incident involving Mr Lange staring at Mr Lambos through his office window with his fists clenched;
● on the day after the second incident Mr Lambos went to Mr Lange’s office to discuss the incident;
● he telephoned Ms Mylchreest while on his lunch break on 18 December 2014 with the intention of explaining all the incidents of recrimination against him, adding that during that phone call he raised his voice in anxiety and frustration but that he did not shout at Ms Mylchreest;
● when he attended work on 19 December 2014 he was called into Mr Howard’s office where he was stood down on full pay; and
● he was ready, willing and able to return to work at ACTION as a bus driver and was willing to engage in any performance management process.

[22] In his oral evidence, Mr Lambos reiterated aspects of his witness statement, attesting that he did not make a threat on 18 December 2014 and confirming that he went to see Mr Lange the day after the second incident referred to in his witness statement. When it was put to Mr Lambos that going to see Mr Lange was not the action of someone who was terribly afraid, Mr Lambos responded “Why should I be afraid, sir: I’ve done nothing wrong” 15, though he later stated that he was scared as a result of the incidents involving Mr Lange. Mr Lambos also attested, inter alia, that:

● there was no hint of recrimination when he complained of his seat bottoming out in September 2014;
● the words “there is going to be another Columbine” meant that the situation was going to be blown up as a result of him meeting with Ms Mylchreest, i.e. work health and safety issues were going to escalate 16;
● he had been formally directed by ACTION’s Chief Operating Officer on 17 January 2014 to, among other things, “cease making any negative comments about any of your colleagues including the TWU delegates” 17;
● on 18 December 2014 Ms Mylchreest did not leave once Mr Howard appeared; and
● acknowledged that his recollection of his conversation with Ms Mylchreest was unreliable as to timings, adding that he was not one to note things down 18.

[23] In giving his oral evidence Mr Lambos also referred to three other incidents which he contended gave him reason to be scared. None of those incidents were referred to in his witness statement. Under cross examination, Mr Lambos disputed that he was making this up as he went along, stating that he was not that sort of person. Further, Mr Lambos initially agreed under cross examination that his recollection of the details of his conversation with Ms Mylchreest on 18 December 2014 was unreliable but he recanted almost immediately 19.

[24] Mr Barnwell in his witness statement 20 largely set out his experience with drivers’ seats bottoming out, his interactions with ACTION and Ms Mylchreest regarding the issue and the details of the phone call he received from Mr Gonzalez on 19 December 2014 following Mr Lambos being stood down. Mr Barnwell also set out the details of a conversation he had with Mr Mead around 23 December 2014 regarding an incident in late October 2014, deposing that Mr Mead had said “Be very careful what you say. You could cost blokes their jobs.”

[25] In his oral evidence, Mr Barnwell largely reiterated key aspects of his witness statement. Of note, Mr Barnwell attested that he had informed Mr Lambos of the work he was doing with Ms Mylchreest about two or three weeks before Mr Lambos’ discussion with Ms Mylchreest on 18 December 2014 21.

[26] Mr Huang in his witness statement 22 set out, inter alia, his experience with drivers’ seats bottoming out and his interactions with Ms Mylchreest and Mr Lambos regarding the issue. In his oral evidence, Mr Huang attested that he did not hold a current firearms licence but that he had previously done so.

The Respondent’s case

[27] TAMS submitted that there was nothing in the context of Mr Lambos’ phone call to Ms Mylchreest on 18 December 2014 which indicated that his threat was in jest or idle. TAMS further submitted that the threat was accompanied by shouting, an aggressive tone and offensively critical statements concerning ACTION management, all of which themselves constituted misconduct. Beyond this, TAMS contended that:

● it was not the point that Mr Lambos did not carry out the threat of violence;
● both the threat and the context in which it was made constituted a valid reason for Mr Lambos’ dismissal;
● Mr Lambos was informed of the reason for his proposed dismissal and was provided with an opportunity to respond; and
● Mr Lambos’ work history at ACTION was more aggravating than mitigating, highlighting that Mr Lambos had been given formal directions about the importance of engaging with his colleagues in a respectful way, refraining from negative comments about colleagues and limiting his contact with managers to business hours.

[28] In summary, TAMS submitted that Mr Lambos’ dismissal was neither harsh, nor unjust nor unreasonable.

[29] At the hearing, TAMS highlighted the inconsistencies in Mr Lambos’ evidence, particularly with regard to the reliability of his recollection of the events of 18 December 2014. Specifically, TAMS submitted that for this reason Ms Mylchreest’s evidence should be preferred. TAMS, further contended that:

● Mr Lambos had provided little evidence to support any apprehension of fear;
● Mr Lambos’ conduct on 18 December 2014 was consistent with his conduct on several other occasions and with his general response whenever he felt thwarted;
● there was little evidence to suggest that the seat bottoming out issue loomed large for Mr Lambos given that he had only notified problems in this regard on two occasions over a five year period;
● Mr Lambos’ responses to questions at the hearing were often evasive and blame-shifting;
● Mr Lambos’ explanation that the reference to Columbine was a reference to the possibility of tensions in the workplace heightening was disingenuous, self-serving and blame-shifting;
● Mr Lambos had breached s.9 of the Public Sector Management Act 1994 (ACT)(the PSM Act); and
● the termination of Mr Lambos’ employment was an appropriate remedy for that breach.

[30] Mr Mead in his witness statement 23 set out his recollection of his discussion with Mr Barnwell in late December 2014 regarding the seat on the bus which he was driving at the time bottoming out. In his oral evidence Mr Mead attested that he did not say to Mr Barnwell on 23 December 2014 the words attributed to him in Mr Barnwell’s witness statement.

[31] Mr Gonzalez in his witness statement 24 set out, among other things, his version of the discussion he had with Mr Barnwell on 19 December 2014 during which he mentioned that Mr Lambos had referred to Mr Barnwell in his conversation with Ms Mylchreest on 18 December 2014. Under cross examination Mr Gonzalez disputed aspects of Mr Barnwell’s outline of their phone conversation on 19 December 2014.

[32] Mr Lange deposed in his witness statement 25 that on 18 December 2014 Mr Howard asked him to be present in his office as a witness to the meeting at which Mr Lambos was stood down, adding that Mr Lambos was calm when advised of his suspension. Mr Lange also deposed that prior to leaving Mr Howard’s office Mr Lambos questioned Mr Howard over an alleged ‘death stare’, contending that Mr Lambos became increasingly worked up and angry and alleged that Mr Howard, other staff and himself had all given him death stares.

[33] Also in his witness statement, Mr Lange:

● discussed separate incidents in August and December 2013 involving Mr Lambos and a January 2014 complaint by a fellow bus driver regarding Mr Lambos’ behaviour;
● disputed Mr Lambos’ version of the alleged water cooler incident, recalling that the words which Mr Lambos attributed to him were said by Mr Lambos;
● disputed the second incident cited by Mr Lambos, stating that he had not stared at or made a negative gesture to Mr Lambos and disputing that his children were present at the time; and
● indicated that he was aware that Mr Lambos had complained about bullying and harassment by ACTION supervisors in the past, but that he had not been named in any of those allegations.

[34] Key aspects of Mr Lange’s oral evidence included that he:

● on 18 December 2014 he did not pass onto anyone his belief that Mr Huang had a firearms licence;
● he had not embellished matters in his witness statement;
● he may have had a conversation with Mr Lambos at the water cooler in December 2014 but that he would not have said the words attributed to him by Mr Lambos; and
● his daughters did not attend the workplace in December 2014.

[35] Ms Mylchreest deposed in her witness statement 26 that:

● during November and December 2014 she was consulting with both Mr Huang and Mr Barnwell regarding drivers seats bottoming out;
● she received a call from Mr Lambos on 8 December 2014 during which he raised concerns about his treatment by ACTION management and a senior official of the Transport Workers’ Union (TWU) and alleged that they were corrupt;
● she did not recall speaking to Mr Lambos prior to this; and
● she received a letter of apology from Mr Lambos a day or two after the incident of 18 December 2014.

[36] As to the events of 18 December 2014, Ms Mylchreest set out in some detail her conversation with Mr Lambos, her subsequent conversation with Mr Howard and Mr Lambos’ visit later that morning. Ms Mylchreest further deposed that:

● Mr Lambos did not say to her at any stage during their phone conversation that he was scared;
● after speaking with Mr Lambos she felt sick to the stomach, adding that she was scared because she did not know Mr Lambos or what he was capable of;
● when Mr Lambos visited her later that morning she turned around to see him standing there, he introduced himself to her, she responded “You frightened the bejesus out of me” at which point Mr Howard came out of the office and she proceeded to the ladies toilet; and
● she was shaking and scared at that time.

[37] In her oral evidence, Ms Mylchreest was extensively questioned about the events of 18 December 2014. Key aspects of her evidence in this regard were that:

● Mr Lambos told her that he was being recriminated against;
● she disagreed that Mr Lambos’ version of their discussion was more accurate;
● she did not recall Mr Lambos saying that he was scared;
● Mr Lambos was angry when he spoke to her but appeared to calm once she said that she was going to end the call;
● she reported the conversation to her manager who reported the matter to the police, adding that she probably would not have reported the matter to the police 27;
● Mr Lambos did not apologise when he came into the office later that morning;
● when Mr Howard came out of his office and saw Mr Lambos she went to the ladies room for sanctuary; and
● Mr Lambos’ presence frightened her, though she was not fearful that he was going to shoot her.

[38] Ms Mylchreest also attested that the issue of drivers seats bottoming out had been raised on about a dozen occasions by two drivers and that WorkSafe ACT had investigated the issue and advised ACTION that no further action was required 28.

[39] Mr Howard in his witness statement 29 deposed that he was interviewed in September 2013 regarding allegations made by Mr Lambos in June 2011 that he had given Mr Lambos a ‘death stare’ and mouthed obscenities at him through the starter’s window, adding that he denied the allegations and was advised on 1 October 2013 that the allegations were unsubstantiated. Mr Howard also set out in detail the events of 18 December 2014. With regard to those events, Mr Howard deposed, among other things, that:

● during all the time he had known Ms Mylchreest, he had never seen her as unsettled and shaken as she was on 18 December 2014 after the call from Mr Lambos, stating that her hands were shaking and her voice was shaky and wavering;
● he was disturbed by what Ms Mylchreest had told him and thought it very serious;
● he received an email from Ms Mylchreest, which was sent at 9.29am, setting out her conversation with Mr Lambos;
● given the serious nature of the threat, he forwarded Ms Mylchreest’s email to both ACTION’s Chief Operating Officer and Director;
● he heard Mr Lambos’ voice at about 10.30am and walked out to see him talking to Ms Mylchreest;
● he asked Mr Lambos to enter his office and called Mr Lange to be present as a witness;
● Mr Lambos was stood down on full pay, with Mr Lambos subsequently raising his previous allegations of death stares;
● Mr Howard rejected those allegations, stating that if he had a problem with Mr Lambos he would discuss it with him in person;
● he forwarded Ms Mylchreest’s email of 9.29am to the Officer in Charge of the Belconnen police station at noon on 18 December 2014;
● he was contacted by the police later that day and advised that Mr Lambos did not hold a gun licence so there was not much they could do about it; and
● also on 18 December 2014 he had Mr Lambos’ electronic building passes cancelled so that Mr Lambos could not access ACTION’s Belconnen depot.

[40] Mr Howard also referred to various complaints about Mr Lambos from members of the public and fellow employees, attaching a number of those complaints to his witness statement 30. The most recent complaint attached to Mr Howard’s statement was dated May 2012.

[41] Key aspects of Mr Howard’s oral evidence included that:

● he would not say that Mr Lambos had a clean file when regard was had to the various complaints about him;
● he was pretty sure that he asked Ms Mylchreest on 18 December 2014 whether Mr Lambos’ phone call warranted contacting the police;
● he considered Mr Lambos’ comment a threat;
● the steps he took to protect the safety of ACTION employees included suspending Mr Lambos immediately and cancelling his electronic passes, adding that he also informed supervisors one-on-one that Mr Lambos had been stood down; and
● he did not fear Mr Lambos when he met with him on 18 December 2014.

The statutory framework

[42] The Fair Work Commission (the Commission) exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Lambos is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.”

[43] There is no dispute that Mr Lambos was dismissed, so s.385(a) of the Act is satisfied. Mr Lambos contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. TAMS is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Mr Lambos was unfairly dismissed, I must consider whether his dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[44] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will address each of those criteria separately.

(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

[45] In Rode v Burwood Mitsubishi (Rode’s Case) 31a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.32 The following is an extract from the Full Bench’s decision in Rode’s Case.

“[17] In relation to the meaning of "valid reason" the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

"Section 170DE(1) refers to a `valid reason, or valid reasons', but the Act does not give a meaning to those phrases or the adjective `valid'. A reference to dictionaries shows that the word `valid' has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.' In The Macquarie Dictionary the relevant meaning is `sound, just or wellfounded; a valid reason'.

In its context in s 170DE(1), the adjective `valid' should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that' the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC."

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) 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.”

[46] As can be gleaned from above, the details of the conversation provided by Mr Lambos and Ms Mylchreest differ in a number of important respects, e.g. whether Mr Lambos’ reference to Columbine was prefaced by an indication that he was scared. I prefer Ms Mylchreest’s version of the discussion and ensuing events for the following reasons:

● her email of 9.29am on 18 December 2014 was prepared shortly after her conversation with Mr Lambos whereas Mr Lambos’ version was first set down in writing in Mr Haas’ letter of 20 January 2015 to TAMS;
● Ms Mylchreest’s evidence was consistent with the abovementioned email and her witness statement whereas there were inconsistencies in Mr Lambos’ evidence, e.g. as previously mentioned, Mr Lambos acknowledged that his recollection of his conversation with Ms Mylchreest was unreliable as to timings;
● at the hearing Mr Lambos sought to embellish his witness statement by referring to additional incidents and/or details not included in his witness statement, e.g. Mr Lambos attested that Ms Mylchreest “went off” 33 yet there was no mention of this in his witness statement;
● Mr Lambos contended that he was scared as a result of incidents such as those in which he alleged that Mr Lange stared at him through his office window with his fists clenched yet he attested that he had no reason to be scared when he went to see Mr Lange the very next day to discuss the incident; and
● Mr Barnwell’s evidence that he had informed Mr Lambos of the work he was doing with Ms Mylchreest about two or three weeks before Mr Lambos’ discussion with Ms Mylchreest on 18 December 2014 supports Ms Mylchreest’s evidence that Mr Lambos first contacted her on 8 December 2014.

[47] In Priolo, one of the authorities relied upon by Mr Lambos, Senior Deputy President Hamberger stated, drawing on the decision in Tenix Defence Systems Pty Ltd v Fearnley 34, that “A threat of violence can be justification for termination of an employee’s employment”35. The issue that arises in this case goes to the genuineness of Mr Lambos’ threat. An analysis of the material before the Commission in this regard indicates that:

● Ms Mylchreest felt sick to the stomach after speaking with Mr Lambos and was scared because she did not know Mr Lambos or what he was capable of;
● Ms Mylchreest was clearly shaken by her conversation with Mr Lambos;
● Ms Mylchreest’s email of 9.29am on 18 December also states that Ms Lambos had said “… that they, management, had employed whistleblowing tactics to discredit him and that he, Peter Lambos, had had enough and there would be reprisals” (underlining added);
● while Mr Lambos’ presence in the office on 18 December 2014 frightened Ms Mylchreest, she was not fearful that he was going to shoot her;
● Mr Howard considered Mr Lambos’ comment a threat;
● Mr Howard did not fear Mr Lambos when he met with him on 18 December 2014;
● Mr Lambos was suspended immediately;
● Mr Howard cancelled Mr Lambos’ electronic passes;
● Mr Howard reported the incident to the police at noon on 18 December 2014, over two hours after the incident;
● Ms Mylchreest probably would not have reported the matter to the police; and
● Mr Lambos had been issued a formal direction by ACTION on 17 January 2014 which, inter alia, required him to “Cease making any negative comments about any of your colleagues” and to “Complete a course of training in giving and receiving feedback” and also stated that “Any failure to comply with these directions may result in disciplinary action being taken against you up to and including termination of your employment” 36.

[48] The above summary indicates that while ACTION took Mr Lambos’ threat very seriously neither Ms Mylchreest nor Mr Howard feared for their lives when Mr Lambos came into the office on 18 December 2014. As to the genuineness of the threat, Mr Lambos’ reference to “reprisals” in his conversation with Ms Mylchreest when allied with the reference to “Columbine” support a finding that Mr Lambos was making a threat of some form of action, albeit that it was unlikely to include a massacre.

[49] As mitigating factors, Mr Lambos contended that he was scared and at the time he felt recriminated against by his ACTION colleagues. However, the evidence does not support either of those contentions. For instance, Ms Mylchreest attested that she did not recall Mr Lambos saying that he was scared on 18 December 2014. Further, Mr Lambos’ evidence was that he had no reason to be scared when he went to see Mr Lange the day after Mr Lange had allegedly stared at him with clenched fists. As to the alleged recriminations against Mr Lambos as a result of him raising issues regarding seats bottoming out, Mr Lambos provided no probative evidence to support his contentions. To the contrary, Mr Lambos attested that there was no hint of recrimination when he complained of his seat bottoming out in September 2014. I note also, that Mr Lambos had only raised the issue of drivers seats bottoming out on two occasions, i.e. in 2009 and 2014, over a five year period. Finally, in my view, the psychiatrist’s report is not a mitigating factor, highlighting as it does Mr Lambos’ anger towards management, his personality difficulty with relationships with authority figures and that his reaction to workplace issues is inordinate.

[50] Finally, I note that s.9 of the PSM Act provides that:

“General obligations of public employees

A public employee shall, in performing his or her duties:

(a) …
(d) treat members of the public and other public employees with courtesy and sensitivity to their rights, duties and aspirations;
(e) …
(f) not harass a member of the public or another public employee, whether sexually or otherwise; …”

[51] TAMS’ finding that Mr Lambos had breached ss.9(d) and (f) of the PSM Act are reasonable in the circumstances.

[52] Based on the above, I am satisfied that there was a valid reason for Mr Lambos’ dismissal. Drawing on the language in Selvachandran, the reason relied upon by TAMS to dismiss Mr Lambos was sound, defensible and well founded.

(b) Whether the person was notified of that reason

[53] TAMS wrote to Mr Lambos on 7 January 2015 advising him of the allegations of misconduct. On 26 February 2015 TAMS wrote to Mr Lambos advising that it had determined that the allegations had been substantiated on the balance of probabilities and that they constituted misconduct under Clause H10 of the Agreement. In subsequent developments, on 22 May 2015 TAMS again wrote to Mr Lambos and advised of its intention to terminate his employment. As can be seen from above, the termination letter sets out TAMS’ response to the various reasons cited by Mr Lambos in responding to the allegations of misconduct.

[54] Taken together, the above analysis supports a finding that Mr Lambos was notified of the reasons for his dismissal. This weighs against a finding that his dismissal was harsh, unjust or unreasonable.

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

[55] It was not disputed that Mr Lambos was provided with an opportunity to respond to the allegations of misconduct 37. Accordingly, I consider this factor weighs against a finding that the dismissal was harsh, unjust or unreasonable.

(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

[56] After Mr Lambos was stood down, there were no further meetings with Mr Lambos as matters were dealt with via correspondence between TAMS and Mr Lambos and his representatives. As such, the need for a support person did not arise. Accordingly, this is not a relevant consideration in this matter.

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

[57] Mr Lambos’ dismissal does not relate to unsatisfactory performance. Accordingly, this is not a relevant consideration in this matter.

(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

[58] TAMS employs some 1,860 employees. As such, the size of the enterprise is not a relevant consideration in this matter.

(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

[59] TAMS has a dedicated human resource function. As such, this factor is not a relevant consideration in this matter.

(h) Any other matters that FWC considers relevant

[60] In his submissions, Mr Lambos contended that he would face significant difficulty in re-entering the workforce at a comparable level given both his age and the level of his education. While I accept that this is the case, in my view, this does not outweigh the seriousness of Mr Lambos’ conduct. As such, I do not consider these factors relevant.

[61] Mr Lambos also submitted that two of his four adult daughters rely upon him for financial assistance, yet he provided no evidence to substantiate that contention. For that reason, no weight can be attached to this aspect.

[62] Mr Lambos also submitted that he has a good work history. On the other hand, TAMS submitted that Mr Lambos’ work history at ACTION was more aggravating than mitigating, highlighting that he had been given formal directions about the importance of engaging with his colleagues in a respectful way, refraining from negative comments about colleagues and limiting his contact with managers to business hours. Many of the complaints about Mr Lambos referred to in Mr Howard’s evidence were dated and related primarily to driving a bus, for this reason I attach no weight to them. However, the formal direction issued to Mr Lambos on 17 January 2014 is in my view particularly relevant given that it relates to his conduct and emphasises the need for Mr Lambos to engage with his colleagues in a respectful way, something which he failed to do on 18 December 2014. Further, the formal direction warns that a failure to comply with the directions may result in further disciplinary action up to an including termination of employment. In this regard, I note that Mr Lambos’ comments of 18 December 2014 were critical of ACTION management and, as such, were arguably in breach of the formal direction. However, I make no definitive finding in that regard.

[63] Finally, Mr Lambos submitted that there was no evidence that the investigator did anything after he received what he perceived to be an admission and that there were procedural errors throughout the investigation. As to the first of these contentions, TAMS’ letter to Mr Lambos of 7 January 2014 stated among other things that:

“Clause H7.4 states that no investigation may be necessary where the employee fully admits to the alleged misconduct and the employee agrees that there is no need for an investigation. In such cases, the head of service may determine the appropriate disciplinary action/sanction in accordance with clause H10.

Please advise if you agree to the delegate determining the appropriate action based on your response or whether you feel an investigation is to be undertaken if the delegate determines that misconduct may have occurred.” 38

[64] In his response of 20 January 2015, Mr Lambos’ representative stated “my client accepts full responsibility for the inappropriate behaviour on December 18, 2014” 39 but did not request that an investigation be undertaken.

[65] As to Mr Lambos’ contention that there were procedural errors throughout the investigation, Mr Lambos provided no details of the alleged errors.

[66] Accordingly, I do not consider either of these alleged procedural flaws to be relevant matters.

Conclusion

[67] Drawing on the above analysis, I find that there was a valid reason for Mr Lambos’ dismissal, that Mr Lambos was notified of the reason and was given an opportunity to respond, and that the formal direction issued to Mr Lambos on 17 January 2014 is a relevant consideration. I further find that the remaining considerations in s.387 are not relevant considerations in this matter.

[68] For all these reasons, I do not consider that Mr Lambos’ dismissal was harsh, unjust or unreasonable. Accordingly, I dismiss his application. An order to that effect will be issued in conjunction with this decision.

Appearances:

Mr I Meagher for the Applicant

Mr J Macken of Counsel for the Respondent

Hearing details:

2016.

Canberra:

7 April and 20 April.

Final written submissions:

Applicant’s Final Submission,20 April 2016

 1   Exhibit 12 at Annexure MH2

 2   Form F3 – Employer Response to Unfair Dismissal Application at Attachment C

 3   Ibid at Attachment F

 4   Ibid at Attachment G

 5   AE407927

 6   Form F3 – Employer Response to Unfair Dismissal Application at Attachment I

 7   Ibid at Attachment A

 8   Ibid at Attachment N

 9   Ibid at Attachment B

 10 [1996] AIRC 1590 & [2011] FWA 4838

 11   [2011] FWA 4838

 12   [2004] AIRC 1097

 13   Exhibit 1

 14   Ibid at Annexure PL-01

 15   Transcript at PN183

 16   Ibid at PN282

 17   Exhibit 2

 18   Transcript at PN446-448

 19   Ibid at PN470-474

 20   Exhibit 4

 21   Transcript at PN737-741

 22   Exhibit 5

 23   Exhibit 6

 24   Exhibit 7

 25   Exhibit 8

 26   Exhibit 9

 27   Transcript at PN1060-1065

 28   Exhibit 10

 29   Exhibit 12

 30   Ibid at Annexure MH1

 31   Print R4471

 32 (1995) 62 IR 371

 33   Transcript at PN305-307

 34   S6238

 35   [2004] AIRC 1097 at [31]

 36   Exhibit 2

 37   Transcript at PN1343

 38   Form F3 – Employer Response to Unfair Dismissal Application at Attachment F

 39   Ibid at Attachment G

Printed by authority of the Commonwealth Government Printer

<Price code C, PR581607>