Pierce Field v Department of Finance
[2022] FWC 1619
•24 JUNE 2022
| [2022] FWC 1619 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pierce Field
v
Department Of Finance
(U2021/9907)
| COMMISSIONER CAMBRIDGE | SYDNEY, 24 JUNE 2022 |
Unfair dismissal - summary dismissal - serious misconduct - valid reason for dismissal - procedural deficiencies - no evidence from decision maker - advice of dismissal sent by email - dismissal unjust and harsh - nominal compensation provided.
This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 4 November 2021. The application was made by Pierce Field (the applicant) and the respondent employer is the Department of Finance ABN 61 970 632 495 (the employer).
The application indicated that the date that the applicant’s dismissal took effect was 21 October 2021. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
On 19 November 2021, Sparke Helmore lawyers acting on behalf of the employer, filed an employer’s response to the application (Form F3). The Form F3 identified that the legal name of the employer was The Commonwealth of Australia as represented by the Department of Finance and it also indicated that the employer did not raise any jurisdictional objection(s) to the application.
On 7 December 2021, the application was the subject of unsuccessful conciliation. The matter subsequently proceeded to a Pre-Hearing Conference/Conciliation held on 10 January 2022, at which time further attempts to reach a conciliated settlement were unsuccessful. The applicant advised that he objected to the employer being granted permission to be represented by lawyers or paid agents. Consequently, the Commission issued Directions which required the Parties to firstly, file and serve material regarding the representation question, and secondly, provide material regarding the substantive matter prior to an Arbitration Conference/Hearing that was fixed for 17 March 2022.
In accordance with the Directions issued by the Commission on 10 January 2022, Sparke Helmore lawyers filed and served submissions regarding the representation question. On 14 February 2022, the applicant advised that he no longer objected to the employer being granted permission to be represented by lawyers or paid agents.
In a Decision issued on 16 February 2022, [2022] FWC 305, the Commission granted permission for any of the Parties to be represented by lawyers or paid agents, having been satisfied that the requirements of s. 596 of the Act had been met.
On 15 March 2022, Adero Law advised the Commission that it acted for the applicant and filed a Form F53 accordingly. At the Hearing held on 17 March 2022, Mr T Hakkinen from Adero Law appeared for the applicant, and he called the applicant and one other person, Ms N Baini, to provide evidence as witnesses. Mr R Hassell from Sparke Helmore lawyers, appeared for the employer, and he introduced evidence from one witness, Mr C Owens. The proceedings were unable to be completed on 15 March 2022, and further Hearing of the matter was conducted on 27 April 2022.
Background
The applicant worked as an Electorate Officer for Senator the Honourable Kristina Keneally (as she then was). The employment of the applicant was enabled under the Members of Parliament (Staff) Act 1984 (MOPS Act), and it was governed by the Commonwealth Members of Parliament Staff Enterprise Agreement 2020-23 (the EA). The applicant was employed on a full-time basis pursuant to a series of consecutive fixed term written employment agreements, the most recent of which had an anticipated completion date of 31 December 2021. The applicant had been employed to work for Senator Keneally for a total period of almost 1½ years.
During the period of the applicant’s employment as an Electorate Officer for Senator Keneally there were a number of performance and conduct issues which raised concern for the Chief of Staff in the office of Senator Keneally, Mr C Owens. However, these issues were not the subject of any written warning but culminated during a “difficult” discussion on 19 October 2021, between the applicant and Mr Owens. Following this conversation and a series of email communications, Mr Owens placed the applicant on personal leave, and he arranged to have the applicant’s access to work-related electronic systems suspended.
On the following day, Wednesday, 20 October 2021, the applicant had a conversation with Ms Natalie Baini. Ms Baini was known to the applicant as she had been an unsuccessful candidate seeking Liberal Party preselection to replace the former Member for the seat of Reid, Mr Craig Laundy. Ms Baini had previously discussed with the applicant details of allegations that she had raised about the conduct of Mr Laundy in respect to what, in summary, involved an assertion that Mr Laundy had exercised coercive control over Ms Baini including unduly influencing the preselection process to ensure that Ms Baini was unsuccessful. Further, the alleged exercise of coercive control over Ms Baini was associated with a further allegation that it was motivated because of the breakup of an alleged personal relationship between Ms Baini and Mr Laundy.
The conversation that occurred on 20 October 2021, between the applicant and Ms Baini included the suggestion made by Ms Baini that the applicant may wish to contact Mr Laundy and raise with him the assertion that his actions represented, inter alia, coercive control and that this required some form of rectification. Ms Baini provided the applicant with Mr Laundy’s mobile phone number, and after an unsuccessful attempt to make voice contact, the applicant sent the following text message to Mr Laundy’s phone:
“Hi Craig. My name is Pierce Field. I’d like to talk to you about Natalie Baini as a matter of urgency. I”
About 30 minutes after the applicant sent this text message, Mr Laundy telephoned the applicant and the two men engaged in a conversation that lasted for about half an hour. The applicant gave evidence about this conversation, the detail of which is unnecessary to recount. However, the assertions regarding the relationship between Ms Baini and Mr Laundy and the alleged conduct involving coercive control were discussed and strenuously refuted by Mr Laundy. After the telephone conversation had finished, the applicant firstly spoke to Ms Baini and reported aspects of the conversation that he had just had with Mr Laundy, and secondly, he engaged in a text message communication with a former colleague which included discussion about aspects of the telephone conversation that he had engaged in with Mr Laundy.
The following morning, Thursday, 21 October 2021, the applicant sent another text message to Mr Laundy’s phone which stated:
“Hi mate. Listen, I’ve received more evidence overnight. It’s damning and not restricted to letters.
There were several elements of the story you told me that were omitted (eg Tanya).
Personally, man to man, I would issue a public apology this morning owning the mess you’ve made. Especially what happened with Fiona. I think that’s the worst part. It’s now up to you.
People deserve to know the truth and my experience suggests people are more forgiving when they see some type of remorse. Happy to chat.”
Shortly after receiving this text message from the applicant, Mr Laundy made telephone contact with Senator Keneally who then invited Mr Owens into the telephone conversation which was placed on speaker to enable the discussion to be heard by, inter alia, Mr Owens. During this conversation, Mr Laundy described the telephone conversation that he had engaged in the previous evening with the applicant, and he further advised that he had received the subsequent text message regarding the issue of having more evidence. Senator Keneally responded by advising that she was appalled by the conduct of the applicant, she apologised to Mr Laundy, and indicated that she would deal with the matter.
Once the telephone call with Mr Laundy had finished, Senator Keneally asked Mr Owens to obtain advice from the Ministerial and Parliamentary Services Branch (MaPS) of the Department of Finance, about how to deal with the applicant’s conduct involving his communications with Mr Laundy. A short time later, Senator Keneally telephoned Mr Laundy and asked him to forward a copy of the text message that he had received from the applicant earlier that morning. Shortly after this telephone call a screenshot of the text message was sent through to the office of Senator Keneally.
At about 1:00 pm, following further discussions with representatives from MaPS, Senator Keneally told Mr Owens that it was her final decision to proceed to summarily dismiss the applicant forthwith. At 1:18 pm, Mr Owens sent the applicant an email which contained a termination of employment letter issued and signed by Senator Keneally. Relevantly, the termination of employment letter referred to the communications that the applicant had engaged in with Mr Laundy which were held to have caused a serious and imminent risk to the reputation of the office and position held by Senator Keneally. The letter further advised that the actions of the applicant constituted serious misconduct warranting his summary dismissal from employment.
At 1:27 pm that day, 21 October 2021, the applicant sent a response email to Senator Keneally which stated:
“Dear Senator
Your correspondence has been noted.
Regards
Pierce”
On 4 November 2021, the applicant filed the claim for unfair dismissal seeking a remedy of financial compensation.
The Case for the Applicant
Mr Hakkinen, solicitor from Adero Law, appeared on behalf of the applicant at the Hearing. In summary, the submissions made by Mr Hakkinen asserted that the dismissal of the applicant was unfair because there was no valid reason for dismissal, and the applicant was denied procedural fairness, and dismissal was a disproportionate outcome arising from the conduct of the applicant.
The submissions made by Mr Hakkinen firstly traversed the basis upon which out of hours conduct of an employee could provide valid reason for dismissal. Mr Hakkinen asserted that the conduct of the applicant involving his communications with Mr Laundy, was conduct that was undertaken as a private citizen, and not as part of his role of Electorate Officer of Senator Keneally. Consequently, it was submitted that the applicant’s conduct should be treated as out of hours conduct, and therefore it was necessary for there to be a finding that the particular conduct was likely to damage the employer’s interests. Mr Hakkinen submitted that there was no evidence of any actual damage to the employer’s interests, nor was there any likelihood of damage to the employer’s interests. Mr Hakkinen submitted that the absence of likelihood of damage to the employer’s interests meant that there was not a valid reason for the dismissal of the applicant.
Mr Hakkinen also made submissions regarding any reliance upon issues arising from the applicant’s previous performance and conduct. In this regard, Mr Hakkinen submitted that as there had been no actual warnings issued to the applicant about any of the historical issues regarding counselling in respect of performance and conduct, there could be no reliance placed upon performance or conduct issues prior to the conduct involving his communications with Mr Laundy.
The further submissions made by Mr Hakkinen focused upon the failure of Senator Keneally to provide evidence in the proceedings. Mr Hakkinen submitted that an adverse inference arising from the principle established in Jones v Dunkel[1] should be drawn from the absence of evidence from Senator Keneally. Mr Hakkinen submitted that the absence of any evidence from Senator Keneally should lead to an adverse inference whereby there could be no finding that the applicant’s out of hours conduct had any real or likely damage to the reputation of the office and position of Senator Keneally.
Mr Hakkinen made further submissions which criticised the procedure adopted by the employer whereby the decision to dismiss was taken without hearing from the applicant and based solely on the version of events put forward by one of the parties to a telephone call. In support of the submissions which criticised the conscious decision of the employer to not hear from the applicant, Mr Hakkinen referred to the Australian Labor Party (ALP) code of conduct policy document which he said imposed upon members, including the applicant, an active bystander obligation. Mr Hakkinen submitted that the applicant’s conduct involving his communications with Mr Laundy were consistent with obligations to act as an active bystander as contemplated by the ALP code of conduct policy document.
The further submissions made by Mr Hakkinen asserted that even if a technical valid reason for dismissal could be found, the applicant’s conduct needed to be considered in the context of actions undertaken in connection with the active bystander obligations. Mr Hakkinen submitted that when the applicant’s conduct was considered in this context, the outcome of dismissal was entirely disproportionate and unfair.
Mr Hakkinen summarised his submissions by stressing that the summary dismissal of the applicant was made without valid reason and via deficient process which he said established that the dismissal of the applicant was harsh, unjust, and unreasonable. Further, in the alternative, Mr Hakkinen submitted that if a technical valid reason for dismissal existed, the applicant’s conduct, when considered in the context of his active bystander obligations, meant that dismissal was a disproportionate outcome and unfair.
The Case for the Employer
Mr Hassall, solicitor from Sparke Helmore lawyers, appeared for the employer at the Hearing and he provided written submission documents respectively dated 6 March and 27 April 2022. The written submissions provided on behalf of the employer summarised the factual circumstances as contended by the employer and were further constructed by reference to the various criteria contained in s. 387 of the Act.
Mr Hassall supplemented the written submissions of the employer with further oral submissions. Mr Hassall submitted that the summary dismissal of the applicant was not harsh, unjust or unreasonable and it was an appropriate response to the serious misconduct of the applicant which involved a series of events that had caused a serious and imminent risk to the reputation of the office and position of Senator Keneally.
In relation to the question of a valid reason for dismissal, Mr Hassall submitted that the applicant’s conduct that involved his communications with Mr Laundy on 20 and 21 October 2021, amounted to threatening and menacing behaviour directed against a former Member of Parliament. Mr Hassall said that this conduct, whether taken in a private capacity as was asserted by the applicant, or otherwise, represented serious misconduct that justified the summary termination of employment.
Mr Hassall made submissions which rejected the proposition that the applicant’s conduct which was said to have been conducted out of hours, could be properly established as action taken in a private capacity. Mr Hassall submitted that the applicant’s actions had clear relevant connection to his employment. Further, according to the submissions made by Mr Hassall, the actions of the applicant when viewed objectively, were not only likely to cause serious damage to the relationship between the applicant and Senator Keneally, but did actually cause damage, which was demonstrated when Mr Laundy telephoned Senator Keneally and complained about the applicant’s actions.
Mr Hassall submitted that the applicant’s actions were incompatible with his duties as an Electorate Officer of a Member of Parliament. Further, Mr Hassall rejected that there was any procedural deficiency arising from the decision to dismiss being taken without first hearing from the applicant. Mr Hassall submitted that there was irrefutable evidence that the conduct had occurred, and that the conduct was of such severity that it warranted termination summarily.
Mr Hassall made further submissions which rejected the proposition that the actions of the applicant we justified as conduct that was consistent with active bystander obligations. Mr Hassall suggested that the manner in which the applicant communicated with Mr Laundy went beyond any bounds of reasonable action that could be contemplated as raising some legitimate complaint or whistleblowing. Mr Hassall submitted that the applicant ought to have known or in fact did know, that the use of threatening or menacing language to another person, in this case, a former Member of Parliament, would potentially bring significant reputational damage to Senator Keneally.
The submissions made by the employer also rejected that any negative Jones v Dunkel inference should be drawn from the absence of evidence from Senator Keneally. In this regard, it was submitted that the factual circumstances surrounding the applicant’s misconduct were not contested, and the evidence provided by Mr Owens was sufficient for the Commission to make findings about the reasons and the process of termination of the applicant’s employment. Further, it was submitted that it could not be said that evidence from Senator Keneally would add anything further to the evidence that was provided by Mr Owens.
The employer summarised its submissions regarding the procedural fairness requirements of subsections 387 (b) and 387 (c) of the Act by asserting that the gravity of the applicant’s misconduct was sufficient to outweigh any alleged procedural deficiencies in the termination process. The employer submitted that it was reasonable not to provide the applicant with an opportunity to respond to the decision to terminate his employment in circumstances where his serious misconduct had been evidenced, and that the applicant had recently expressed significant dissatisfaction with his job.
By way of an alternative submission, the employer contended that if the dismissal of the applicant was found to have been unfair, then no Order for compensation should be made because of the serious nature of the applicant’s misconduct which was inconsistent with the continuation of the employment relationship. Further, it was also submitted that even if the applicant had been provided with an opportunity to respond, it would not have changed the ultimate finding of serious misconduct warranting summary dismissal.
In summary, the employer submitted that it had valid reason to terminate the applicant’s employment arising from his serious misconduct, and dismissal was not a disproportionate response to the applicant’s misconduct. Further, the employer submitted that there were no procedural defects in implementing the dismissal of the applicant. The employer submitted that an overall consideration of the dismissal of the applicant did not provide, either at the time of termination or since, any matter which would render the dismissal to be harsh, unjust, or unreasonable. Consequently, the employer submitted that the dismissal of the applicant was not unfair, and the application for unfair dismissal remedy should be dismissed.
Consideration
The unfair dismissal provisions of the Act relevantly include section 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:
“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.
In this case, there was no dispute that the applicant had been dismissed from his employment, the employer was not a small business, and there was no suggestion that the dismissal of the applicant involved redundancy. Consequently the matter was confined to a determination of the element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.
Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. Section 387 of the Act is in the following terms:
“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 relevant.”
S. 387 (a) - Valid reason for the dismissal related to capacity or conduct
In this instance, the applicant was summarily dismissed because the employer considered that his conduct in respect to his communications with Mr Laundy on 20 and 21 October 2021, represented serious misconduct. The termination of employment letter dated 21 October 2021, which was sent by email to the applicant, included the following statements:
“I am writing to you to provide you with written note to terminate your employment from my Office.
I have been made aware today of your involvement in a series of events that has caused a serious and imminent risk to the reputation of my office and position as a Senator in Parliament. I consider your actions to be serious misconduct in your role as Electorate Officer.
For completeness, my concerns are summarised below:
·This morning I became aware that last night and this morning you have communicated by phone and text message to Mr Craig Laundy.
·I have seen the text messages sent from your phone to Mr Laundy.
·In these communications you have made allegations about Mr Laundy and the Member for Reid. You have also made threats to Mr Laundy.
…
My strong preference would’ve been to meet with you in person to have this discussion with you but I am mindful that you are currently on leave and it is not possible at this time.
I have given serious consideration to the events that have taken place and the seriousness of the allegations.
I consider that your actions constitute serious misconduct warranting summary dismissal of your employment. …”[2]
The evidence that has been provided in these proceedings has confirmed that the applicant, at the suggestion of Ms Baini, contacted Mr Laundy and confronted him with very serious allegations. The allegations have been summarised to represent conduct involving coercive control exercised against Ms Baini in the context of retaliation related to the breakup of an alleged personal relationship between Ms Baini and Mr Laundy. The applicant’s communications with Mr Laundry were made without the knowledge of his employer, specifically Senator Keneally.
On any reasonable and objective contemplation, the applicant’s communications to Mr Laundy would be confronting, and likely to be perceived as menacing and threatening. In the context of employment in the Parliamentary political environment, the applicant’s actions, when occupying a position as an Electorate Officer, would be very difficult to disconnect from the employment relationship irrespective of whether the applicant stressed that he was acting in a private capacity. In many respects, politicians and their staff are “on duty” at all times, and there is almost constant scrutiny of their conduct both professional and private, whereas in other professional circumstances a disconnection between employment and private life would be more easily achieved.
Consequently, even upon the most generous consideration, the applicant’s actions involving his communications with Mr Laundy on 20 and 21 October 2021, represented a significant and serious misjudgement. The applicant’s actions would, on any realistic, reasonable and objective assessment, have potential impacts for his ongoing employment with Senator Keneally. The applicant provided no plausible explanation for not first obtaining approval from either Senator Keneally or Mr Owens before contacting Mr Laundy. In consideration of all of the relevant circumstances, the actions of the applicant involving his communications with Mr Laundy on 20 and 21 October 2021, represented valid reason for his dismissal.
S. 387 (b) - Notification of reason for dismissal
The employer provided notification of the reasons for the applicant's dismissal by email communication. The Commission as currently constituted has frequently stated that communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided. The circumstances in this case do not establish justification for the notification of dismissal to be made by email. Although the applicant had commenced personal leave and had been reluctant to discuss other performance and conduct issues, there was no satisfactory explanation provided for the haste that was adopted with the employer’s consideration and subsequent implementation of the summary dismissal of the applicant.
S. 387 (c) - Opportunity to respond to any reason related to capacity or conduct
The applicant was not given any opportunity to respond to the reason for his dismissal. Although the applicant’s actions involving his communications with Mr Laundy would obviously present as serious misconduct, the circumstances in this instance did not involve a case where there could be no potential explanation provided which might alter the decision maker’s mind.
The applicant was clearly not provided with procedural fairness. The circumstances in this instance were clearly different to those in cases where there could be no reasonable possibility that any explanation or pleading from the employee would be capable of altering the outcome. For instance, one of the authorities that was referred to was the Decision of Hatcher VP in Wakim v Bluestar Global Logistics[3] and the following extract from that Decision can be contrasted with the circumstances in this case:
“Had Mr Wakim been afforded procedural fairness, I do not consider that there is any reasonable possibility that he could have advanced any response which might have altered the outcome.”[4]
The evidence provided by the applicant repeatedly stressed that the contact that he made with Mr Laundy was motivated by an earnest desire to address what he believed to be highly inappropriate coercive control exercised by a powerful male against a vulnerable female. The absence of any evidence from the decision maker, (then) Senator Keneally, has meant that it has been difficult for the Commission to make any finding as to whether the applicant’s asserted honourable motivation may have been persuasive, so as to provide for a different outcome, even if that outcome may have only involved alteration to provide dismissal with notice as opposed to summary dismissal.
Upon careful reflection, in this case, there was some prospect, albeit limited, that if the applicant had been provided with an opportunity to explain his actions, he may have persuaded Senator Keneally that he was acting with honourable intentions in an attempt to expose and address what he believed to be the exercise of coercive control by a powerful man against a vulnerable woman. This explanation, if it had been accepted by Senator Keneally, may not have excused or justified the applicant’s misconduct, but it could have militated against an outcome of summary dismissal. The procedure that the employer adopted whereby it hastily moved to summarily dismiss the applicant, and it consciously deprived the applicant of any opportunity to be heard, was a significant procedural defect which denied the applicant natural justice.
S. 387 (d) - Unreasonable refusal to allow a support person to assist
The practical consequence of the procedure adopted by the employer meant that it unreasonably refused to allow the applicant to have a support person present because it denied the applicant any opportunity to engage in any discussions relating to dismissal.
S. 387 (e) - Warning about unsatisfactory performance
This factor has little relevance to the circumstances in this instance because there were no formal warnings given to the applicant, and the clear motivation for the dismissal was not unsatisfactory performance but instead, the serious misconduct involving the communications that the applicant initiated with Mr Laundy.
S. 387 (f) - Size of enterprise likely to impact on procedures
The employer was not a small business, but it is a significant Commonwealth Government department. Consequently, it was very surprising that it would apparently sanction a dismissal process which consciously deprived the employee of any opportunity to be heard, or to provide written or personal explanation, or to make out any form of defence.
S. 387 (g) - Absence of management specialists or expertise likely to impact on procedures
The employer clearly did have management specialists or other expertise. However, human resource specialists or other experts should not be required to ensure that fundamental fairness is observed. The employer should have insisted that Senator Keneally adopted an approach that did not deprive the applicant of natural justice and basic fairness. The applicant was, as a matter of fundamental fairness, entitled to an opportunity to be heard in respect to his actions involving communications with Mr Laundy, before the decision to dismiss was taken.
Regrettably, the unexplained absence of any evidence from (then) Senator Keneally has exacerbated the injustice that was inflicted upon the applicant, and it has created the appearance at least, that the decision maker either did not have the capacity to defend their decision, or they felt that it was unnecessary to involve themselves in the matter.
S. 387 (h) - Other relevant matters
It has been relevant to have regard for the deterioration in the employment relationship that culminated with the applicant’s absence on personal leave and his removal from access to work-related electronic systems immediately before he initiated his communications with Mr Laundy. In many respects, the applicant’s employment was “hanging by a thread” at the time at which he initiated the contact with Mr Laundy. Once again, the absence of any evidence from (then) Senator Keneally has meant that it has been difficult for the Commission to assess whether the applicant may have been able to repair these other aspects of the employment relationship separate from the matter of his misconduct involving his communications with Mr Laundy.
Conclusion
The applicant was summarily dismissed for serious misconduct involving his communications with Mr Laundy on 20 and 21 October 2021. The applicant’s communications with Mr Laundy could not be detached from his role as a Parliamentary Electorate Officer. The applicant’s communications with Mr Laundy would, on any objective and reasonable contemplation, have been likely to have significant detrimental impacts for Senator Keneally (as she then was) and for whom the applicant worked. The applicant’s actions could not realistically be disconnected from his employment. Upon careful analysis, the employer’s findings of serious misconduct have been confirmed.
The misconduct of the applicant which involved his confrontational and threatening communications with Mr Laundy, was misconduct that was plainly inconsistent with the continuation of his employment, and it established valid reason for the dismissal of the applicant. However, the valid reason for dismissal has been assessed and evaluated against significant procedural errors which were evident in the manner that the employer determined and implemented the dismissal of the applicant.
The procedural errors in this case were matters of significance such that the applicant was denied natural justice. Further, the communication of advice of dismissal via email was entirely inappropriate and unnecessarily harsh. In this instance, the particular nature of the misconduct upon which valid reason for dismissal was established must be balanced against the manifest and egregious procedural deficiencies.
On balance, the misconduct in this instance was severe, but equally severe was the injustice occasioned by the deliberate denial of natural justice coupled with the prospect that may have emerged if the applicant’s active bystander obligations (aka MeToo) defence had been heard. Consequently, despite there being valid reason for dismissal, the misconduct of the applicant has not outweighed the significant procedural deficiencies such that findings of harshness and unjustness could be avoided.
Therefore, although the applicant was dismissed for valid reason involving his serious misconduct, the significant procedural defects evident in respect of the determination and implementation of the dismissal of the applicant have rendered the summary dismissal to have been harsh and unjust. The applicant’s dismissal has been found to have been unfair and the Commission must logically consider the appropriate remedy that should be provided in this instance.
Remedy
The applicant has sought a remedy of monetary compensation for his unfair dismissal.
In the circumstances, particularly as the employment of the applicant was irreparably damaged by his serious misconduct, reinstatement would not be an appropriate remedy. Further, in the particular circumstances of this case which involved serious misconduct, the appropriate remedy would logically contemplate potential for reduction of any amount of monetary compensation.
The Commission has determined that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and consideration must therefore be made of the factors which involve the quantification of any amount of compensation.
Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. The question of compensation has been approached having regard for the guidelines that have been established in the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket[5] (Sprigg); Smith and Ors v Moore Paragon Australia Ltd [6] and more recently, the cases of; McCulloch v Calvary Health Care Adelaide[7]; Balaclava Pastoral Co Pty Ltd v Nurcombe;[8] and Hanson Construction Materials v Pericich[9] (Pericich).
Firstly, the Commission confirms that an Order for payment of compensation to the applicant will be made against the respondent employer in lieu of reinstatement of the applicant.
Secondly, in determining the amount of compensation that is to be Ordered, the Commission has taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.
There was no evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise.
The applicant had been employed for a total period of about 1 ½ years. The applicant would have been likely to have received remuneration of approximately $1,685.00 per week if he had not been dismissed.
There was clear evidence upon which to conclude that the employment of the applicant would have finalised in accordance with a proper and just contemplation of his misconduct. Consequently, the employment of the applicant would have been likely to have concluded within one week after his unfair dismissal and dismissal would have likely provided payment of 1 weeks’ wage in lieu of notice.
For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if he had not been unfairly dismissed, the Commission has considered that the employment of the applicant would have continued for a further one week. Therefore, the total remuneration that would have been received in the notional period of one week following dismissal plus payment in lieu of notice, amounted to a figure of $3,370.00.
The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $0.
Thirdly, in this instance there was established misconduct of the applicant, and consequently the Commission has decided to make a reduction of 50% to the amount of compensation to be provided to the applicant on account of misconduct.
Fourthly, the amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.
Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by section 392 (5) of the Act.
Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, the Commission has decided that the amount of compensation to be provided to the applicant should be a gross figure of $1,685.00.
Accordingly, separate Orders [PR743016] providing for unfair dismissal remedy in these terms will be issued.
COMMISSIONER
Appearances:
Mr T Hakkinen from Adero Law appeared for the applicant.
Mr R Hassell from Sparke Helmore lawyers appeared for the employer.
Hearing details:
2022.
Sydney:
April, 27.
[1] Jones v Dunkel (1959) 101 CLR 298.
[2] Exhibit 5 - Attachment ‘CO-27’.
[3] Joseph Wakim v Bluestar Global Logistics [2016] FWC 6992.
[4] Ibid @ paragraph [44].
[5] Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
[6] Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
[7] John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.
[8] Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.
[9] Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.
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