Robert Clive Chester v Perth Itec Pty Ltd as trustee for Anglicare/Itec Trust
[1995] IRCA 235
•09 June 1995
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - claim for unlawful termination - allegation of intimidation of applicant's witness by respondent - whether procedural fairness - compensation.
INDUSTRIAL RELATIONS ACT 1988, Ss 170 EA, 170DC, 170DE, 170EE
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233
ROBERT CLIVE CHESTER V PERTH ITEC PTY LTD AS TRUSTEE FOR ANGLICARE/ITEC TRUST - WI 675 of 1994
BEFORE: BOON JR
PLACE: PERTH
DATE: 9 JUNE 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 675 of 1994
BETWEEN: ROBERT CLIVE CHESTER
- Applicant
AND: PERTH ITEC PTY LTD
AS TRUSTEE FOR
ANGLICARE/ITEC TRUST
- Respondent
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 9 JUNE 1995
THE COURT DECLARES AND ORDERS THAT:
The termination of the applicant's employment by the respondent contravened S170DC of Division 3 of Part VIA of the Industrial Relations Act 1988.
The respondent pay compensation in the sum of $5000 to the applicant within 21 days of the date of this order.
NOTE: Settlement and entry of Orders dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 675 of 1994
BETWEEN: ROBERT CLIVE CHESTER
- Applicant
AND: PERTH ITEC PTY LTD
AS TRUSTEE FOR
ANGLICARE/ITEC TRUST
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 9 JUNE 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA arising out of the termination of the applicant's employment with the respondent.
The applicant contends that the termination of his employment contravened the provisions of the Industrial Relations Act 1988 in a number of ways. In the first place, the applicant says that the procedural fairness provisions of Section 170DC of the Act were breached in that the respondent terminated the applicant's employment for reasons related to the applicant's conduct and performance without giving the applicant the opportunity to defend himself against the allegations made. Secondly, if it is held that procedural fairness was accorded to the applicant, the applicant says that his employment was terminated without a valid reason, or valid reasons, connected with his capacity or conduct within the meaning of Section 170DE Sub-section (1) of the Act. Further, it is said that in any event the termination was harsh, unjust or unreasonable within the meaning of Sub-section (2) of Section 170 DE.
The respondent contends that the applicant was afforded procedural fairness within the meaning of Section 170DC. In particular, it is said that the applicant was advised by his superiors that his performance was unacceptable and could lead to his dismissal on at least seven occasions.
Further, the respondent states that there were valid reasons relating to the applicant's conduct and performance for terminating his employment and that, in any event, the termination was not harsh, unjust or unreasonable. The reasons given by the respondent for terminating the applicant's employment were as follows:
the applicant had maintained an unsatisfactory level of performance in that his conduct was unacceptably aggressive and intimidatory;
the applicant had made no effort to adopt the structural changes which were being introduced gradually to the respondent's business since April 1994;
the applicant had recently been acting in an insubordinate fashion towards his superiors; and
there were serious allegations that the applicant was intimidating his subordinates.
In the course of the hearing Mr Lovell, the Industrial Advocate appearing for the applicant, said it had been brought to his attention that the respondent's management may have engaged in behaviour which could be said to amount to intimidation of one of the applicant's witnesses. That matter will be dealt with below.
BACKGROUND
The respondent, Perth Itec Pty Ltd as Trustee for Anglicare/Itec Trust, provides training and delivers a variety of labour market programmes and training courses primarily for the long term unemployed. Itec is a wholly owned company of Anglicare (Anglican Health and Welfare Services Inc) and attempts to meet its clients needs in information technology and associated areas through education, training and development. Itec is formally managed by an honorary Board of Management, although it employs management staff, headed by Ms Stacey, to manage its day to day operations. Itec's business included an Electronics Unit, the primary function of which was to train and educate the long term unemployed in relation to various aspects of electronics.
The applicant, Robert Chester, is 52 years of age. His wife and four of their 11 children are financially dependent on him. He was employed by the respondent from 5 October 1988 in the Electronics Unit of Itec, originally as a Training and Development Officer until May 1990, then as a Co-ordinator of Electronics Training and Marketing and from 1 August 1994 as Project Leader, Skillshare Electronics. He is the holder of an electrical licence.
Mr Chester's employment with the respondent was terminated on 15 December 1994.
THE ALLEGED INTIMIDATION OF THE APPLICANT'S WITNESS
Affidavits were filed on behalf of both the applicant and the respondent. An affidavit sworn by Robert Glyn Philpot, an employee of the respondent, was filed in this court on behalf of the applicant on 26 April 1994. Most of the contents of the affidavit consist of statements in support of Mr Chester. Paragraph 4, however, states as follows "During the course of my employment I had occasion to observe his interaction with Jeanette Stacey. During my period of employment with the respondent Ms Stacey has been the General Manager and more recently the Managing Director. In her relationship with Mr Chester I can say that she had an autocratic management style. By that I mean that she had an agenda to which she asked us in Mr Chester's section to contribute. However, I believe that it did not matter to her what contribution we made because she would have done what she wanted to do anyway".
Mr Philpot gave evidence that in early May he received a confidential memorandum asking him to come to a meeting with Ms Stacey, Mr Horobin and Mr Caporn. The memorandum referred to his affidavit. He went to that meeting on the morning of 4 May 1995 and he was asked a series of questions by those people.
In the late afternoon of Monday 22 May 1995 (which was the day before the hearing in this matter was due to commence), Mr Philpot received a message that the Managing Director wanted to see him. Mr Philpot said that when he went to her office, Ms Stacey presented him with a document and said words to the following effect "I want you to read this document and if it is correct I want you to sign it before you leave". Mr Philpot read the document and came to the conclusion that the contents of the document were not correct. Mr Philpot had concerns that some parts of the document were inaccurate in that it contained some matters which he felt were not raised at the meeting of 4 May 1995, and that the wording and the interpretation placed on some of his answers and some inferences made were different from what he had intended to say at the meeting. Mr Philpot felt that only points relevant to a favourable interpretation for the respondent were expressed and the points in Mr Chester's favour were left out.
The document in question is headed
"Notes from a meeting attended by:
Peter Horobin, Chairperson, Itec Board
Jeanette Stacey, Managing Director
John Caporn, Operations Manager
Bob Philpot, Training and Development Officer
Re: Discussion of Bob Philpot's concerns about Itec.
Held: Thursday 4 May 1995".
Although Mr Philpot had doubts about the accuracy of the document as a whole, it was common ground that paragraphs 1 to 7 at least of the document were substantially correct. They read as follows:
Peter Horobin welcomed everyone to the meeting and thanked them for their attendance.
He advised Mr Philpot that the Itec was in receipt of his affidavit in the matter of Chester versus Perth Itec. As that document raised a number of concerns about Itec (particularly in paragraphs 4, 5 and 6), the purpose of this meeting was to gain a clearer understanding of those concerns.
Peter Horobin then read the following statement to Mr Philpot:
`You have raised a number of concerns in relation to the Itec and its management which are a great surprise and worry to us. I have to tell you that there is nothing in your performance of your job which underpins these concerns. We are very pleased with your performance of your job and therefore I am confused by the apparent inconsistencies in this situation.
Are you aware of your duty of fidelity to your employer. This is a general duty of any employee to their employer. In simple words if you take our dollar you owe us a duty of loyalty.
The Itec has processes which should deal with the sorts of concerns you have raised, and I don't understand why you have not used these processes.
Nevertheless, now that we are aware of your concerns, it is our duty to investigate them with you.'
He then invited Bob to respond.
Bob stated that the affidavit was the truth as he saw it, and that he is professional enough not to let it get in the way of his employment at Itec.
Peter Horobin asked Bob to elaborate on the use of the word "autocratic" in his affidavit".
The rest of the notes show that although the meeting was ostensibly called to discuss Mr Philpot's concerns about Itec, the three management staff in attendance made references to and discussed with Mr Philpot several aspects of Mr Chester's performance at work whilst he was still employed by the respondent.
Mr Philpot said that he was upset by the meeting on 22 May, although he did not then feel as awkward as he felt whilst he was giving his verbal evidence at the hearing. He refused to sign the document as he felt parts had been added which would affect his evidence at the hearing. He was upset about being presented with the document as he had not realised at the time of the meeting on 4 May that notes were being taken. He said that if he had known that notes were to be taken, bearing in mind that he was to be a witness at the hearing, he would have asked for a representative to accompany him to the meeting or at least for an independent person to be present to take notes. At the time of being presented with the document he was concerned that it would have an impact on his employment if he refused to sign it.
When I asked Mr Philpot what he understood by Mr Horobin's words relating to his duty of fidelity to his employer, he said that he took it that Mr Horobin was saying that he should not have signed the affidavit. Mr Philpot said, however, that the whole experience had not affected his evidence, although he was obviously very uncomfortable about coming along to court under these circumstances.
Ms Stacey in her verbal evidence said that the purpose of the meeting of 4 May was simple. Mr Philpot had expressed a number of concerns about the management of the company in his affidavit. Prior to swearing his affidavit Mr Philpot had never raised these concerns with management. They were serious concerns and she had discussed the matter with representatives of the Chamber of Commerce and Industry. The Management of Itec felt it was appropriate to give Mr Philpot an opportunity to discuss these concerns and they invited Mr Philpot to come to the meeting to discuss them. There was no intention of giving Mr Philpot any indication that his employment was at risk. To the contrary, the fact that management was happy with Mr Philpot's performance in his job was referred to a number of times.
Ms Stacey said that in referring to an employee's duty of fidelity they were expressing an expectation and hope that if he had matters of concern to be brought to their attention he would do so. She said that it was a very considered and open meeting. Mr Horobin was not trying to get Mr Philpot to change his evidence.
When asked why Mr Philpot was presented with the notes of the meeting on the evening before the hearing, Ms Stacey said that it was a coincidence. It had taken some time to have the document prepared and approved by Mr Horobin, Mr Caporn and herself. Ms Stacey said that the document accurately represented what happened at the meeting and denied that matters favourable to Mr Chester had been left out. Ms Stacey also denied that she had told Mr Philpot to sign the document on the Monday evening before he went home. When he expressed reservations about it, she told him to leave it with her and they could discuss it during work hours on the following Thursday. She said it was entirely wrong of Mr Philpot to perceive this as a threat. Ms Stacey did not believe that there was anything wrong with what the respondent's management did in relation to Mr Philpot.
Unfortunately it was not possible to question Mr Horobin about this matter. His testimony had been given earlier in the trial before this matter concerning Mr Philpot came to the court's attention and he had left on an overseas trip.
Mr Caporn was present at the meeting on 4 May but had not been present when Ms Stacey and Mr Horobin had prepared their notes for the meeting of 22 May. He felt that the notes of the meeting were an accurate record of the meeting. He said that the meeting was held to discuss Mr Philpot's concerns about the management of Itec as expressed in his affidavit and which had never been raised before. He did not consider that anything that had occurred at the meeting could have been construed by Mr Philpot as a threat to his employment.
On behalf of the respondent it was submitted that in the circumstances, the conduct of management in investigating management practices was legitimate as Mr Philpot had already reduced his evidence to writing in the affidavit. This submission ignored, however, the fact that Mr Philpot was still to be cross examined at the hearing. It was submitted that the parties to the meeting on 4 May told him it was not about his employment, that management simply wanted to investigate concerns not previously raised by him and that this was a legitimate matter for investigation.
As I said at the hearing, I am unable to accept that there was nothing wrong with the conduct of the respondent's management in this matter. Their reference to Mr Philpot's duty of fidelity to his employer, even when combined with the statement that management was not concerned with his work performance, could clearly have been taken as intending to convey some disapproval of Mr Philpot's actions in swearing the affidavit and as a threat of adverse consequence if he took it further. I am unable to accept Ms Stacey's evidence that the meeting was called purely to discuss Mr Philpot's concerns about Itec's management. Mr Chester's performance at work is mentioned a number of times in the notes of the meeting.
I consider it highly improper that Mr Philpot was asked to sign the notes of the meeting of 4 May on the evening before the hearing in this matter was due to begin. This raises a suspicion that the respondent hoped to use the document at the hearing, perhaps to discredit Mr Philpot if he gave further evidence supporting Mr Chester.
As I indicated at the hearing, the actions of the respondent's management on 4 May and 22 May combined were at best inappropriate and at worst could be seen as an attempt to intimidate a witness which could amount to contempt of court.
In the circumstances I am satisfied that Mr Philpot felt strongly enough about the circumstances of Mr Chester's termination of employment that he did not allow these incidents to influence his evidence. It is entirely to his credit that he was strong enough to maintain his stance, although from my observation of his demeanour in the witness box it was not without personal cost to him in terms of anxiety and stress. I trust that there will, in fact, be no adverse consequence to Mr Philpot in his employment as a result of this matter.
It must be made clear that any approach to a prospective witness prior to a hearing, even if that witness is still employed by the respondent, in circumstances where it could possibly be seen that there was some pressure brought to bear on the witness, will be viewed with very serious concern by this court.
For the reasons stated above I have reservations about Ms Stacey's credibility as a result of this incident. On balance, I prefer Mr Philpot's version to the extent that there are inconsistencies. Further, the circumstances surrounding this incident have some peripheral relevance to the case at hand in that they provide an example of the way in which the respondent's management deals with its employees.
THE PROCEDURAL REQUIREMENTS OF SECTION 170DC
The respondent states that the applicant was given an opportunity to defend himself against allegations made on at least seven occasions prior to termination. The first four of those occasions occurred well before the date of termination of 15 December 1994. They have some marginal relevance in that the respondent says that the problem with Mr Chester's alleged intimidatory and aggressive behaviour was a long standing one, and it is said that he must have known by the date of termination that his behaviour was unacceptable. I therefore propose to deal briefly with the instances cited by the respondent. They cannot in my view be regarded as complying with the requirements of Section 170DC in themselves as they were too remote from the date of termination. In Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233, Wilcox CJ said at page 243 to 244 "for Section 170DC(a) to be satisfied, it would have been necessary for the respondent to determine what aspects of Mr Nicolson's conduct or performance were such as to justify a possible dismissal and put those matters squarely to him, under circumstances where he had a fair opportunity to defend himself. That would have to be done at a relevant time, close to the date of dismissal. It would not suffice that something was said to Mr Nicolson four weeks earlier, after which he was allowed to go on with his work as before".
The occasions on which Mr Horobin and Ms Stacey on behalf of the respondent allege Mr Chester was advised by his superiors that his performance was unacceptable and could lead to his dismissal were as follows:
At a Meeting with Ms Stacey in May 1993
Jeanette Stacey in her affidavit mentions a meeting with Mr Chester in May 1993 after he had been on leave. Some problems with management of the Electronics Unit had surfaced while the applicant was away on leave. Staff had expressed to her their fear of openly discussing these matters with Mr Chester. Staff felt "intimidated and concerned about repercussions of our meeting on Chester's return". Ms Stacey said that at the meeting she had with Mr Chester on his return from leave she explained the events which led to staff complaining to her about certain operational concerns within the Electronics Unit. She states "the problems discussed specifically included his inappropriate autocratic style of management, poor delegation, lack of clear instructions and decisions being made by Chester without proper authorisation or consideration of consequences". Mr Chester in his evidence described this meeting as an "informal chat" about some things that arose while he was on leave.
At an informal meeting with Mr Horobin in mid-1993
In his affidavit, Mr Horobin says that he interviewed Robert Chester in mid 1993 in order to gain a greater understanding of the factors which might be causing poor performance and apparently poor morale in the Electronics Unit and to discover from Robert Chester whether he believed he was having difficulty communicating with Jeanette Stacey, and to determine whether there was any substance to the faint allegations that Robert Chester was using verbal abuse to intimidate his workmates. He was given a firm assurance by the applicant that he had no difficulty in communicating with Ms Stacey. Mr Chester in his evidence said that this was a very informal and pleasant meeting to see if he had problems working with women and that there was no mention of possible termination.
At a meeting with Peter Horobin and Jeanette Stacey on 15 April 1994
Mr Chester went on leave in April 1994. Upon his return, he was called to a meeting with Mr Horobin and Ms Stacey on 15 April. Mr Horobin and Ms Stacey both describe this meeting as a formal performance review. Mr Horobin states that at that meeting he made his concerns as clear as he could, and stated to Mr Chester that he was concerned and disappointed that Mr Chester had not appeared to have moved forward from his discussion of a year before; his performance was unacceptable; and unless his performance improved he would be dismissed. Mr Chester on the other hand, stated that he was not told at the time that it was a performance review meeting and said he was not warned of possible termination. He did recall that he was told to improve a number of things within the Electronics Unit. It came as a complete surprise to him when some two months later he received a confidential memo dated 14 June referring to the meeting on 15 April as a "performance review meeting", with minutes of that meeting attached. Several things need to be noted about the meeting of 15 April 1994. Firstly, to the extent that it may have related to a review of Mr Chester's work performance, it related to his performance as a manager of the Electronics Unit and had nothing to do with his performance in the position he held at the time of termination. The minutes refer to aggression shown in his position as Co-ordinator and to that extent it has some relevance although no incident is specified. Secondly, although Mr Horobin and Ms Stacey both said that Mr Chester was warned of possible termination, the minutes make no mention of this. To the extent that there is a conflict of evidence between the parties on these points I prefer the evidence of Mr Chester. The "minutes" were not produced until two months later; these minutes do not in any event mention a warning of possible termination and Mr Chester upon receiving the minutes immediately wrote a three page strong denial of matters raised in the document, including a denial that his behaviour amounted to aggression. Thirdly, the meeting of 15 April took place eight months before termination and could not be said to comply with the requirements of Section 170DC.
At a meeting with Mr Horobin and Ms Stacey on 28 June 1994
The minutes of the meeting of 15 April were presented to the respondent's Board of Management for consideration. According to Mr Horobin and Ms Stacey, the Board decided that Mr Chester should be demoted to a position of lesser responsibility and this was presented to Mr Chester at a formal interview on 28 June 1994. Mr Horobin in his affidavit states "At this meeting I proposed to Robert that he accept a demotion to become a project leader dealing mainly with Skillshare and Jobs Skills programmes. The point was made that we had no desire to humiliate Robert amongst his colleagues nor the desire to make his financial position difficult. To that end, his demotion was to be publicised as a change indicating the new direction of the reorganisation then under way. His salary would remain at its current level until December 1994. Robert agreed to accept a demotion to Project Leader. I reiterated that his salary would be reduced to a more appropriate level in December 1994". In his verbal evidence, Mr Horobin said that he told Mr Chester that if his performance did not improve, it would lead to termination. In Mr Chester's verbal evidence, he stated that at this meeting he was not given such a warning. He said that at the time he was under a lot of stress due to pressure of work. He agreed to take a reduced role in management and never considered it to be a demotion because there was no reduction in salary. He said it was put to him as a spreading of the workload and making the best use of his skills, as he excelled in the area of training. He denied that he was told that there would be a reduction in salary in December. If he had been told, he would not have committed himself to the purchase of a new vehicle. The minutes of that meeting do not mention any threat of dismissal. The word "demotion" is not used and they do not mention that there was to be a reduction in salary in December. They do state that Mr Horobin started the discussion by saying "This is a formal process because we are concerned. Management is unhappy with the manner in which Robert is performing in the function of Co-ordinator - Electronics". They go on to say that "on the face of it, the task is too big for Robert", that the "Management objective is to make best use of the talent in the team" and that Mr Chester was "a valued member of the Itec team and his credentials in training and development were of a high order". To the extent that there is a conflict of evidence, the minutes of the meeting favour Mr Chester's version of what took place and I therefore prefer his evidence.
At a meeting with Jeanette Stacey on 2 December 1994
During 1994, Itec was involved in a process of restructuring. An outside consultant was involved in planning the restructure. One outcome of the proposed restructure was to be that the Electronics Unit of Itec would be split and its work divided amongst three separate divisions. Jeanette Stacey held a meeting with Itec's staff in mid September at which an outline of the new structure was presented. She invited staff to give her feedback. Mr Chester and another person were elected as representatives of the Electronics Unit for the purpose of liaising with management about the restructure.
Ms Stacey was concerned that she had not had any feedback from the Electronics Unit. She stated that Mr Chester had displayed "aggressive and disruptive" behaviour during meetings on 20 October and 2 December 1994, "huffing and sighing, showing definite signs of disapproval of the structure". She states in her affidavit that "after the meeting on October 20, Chester began to demonstrate to me that he would not support the change process. He failed to attend the last two meetings of the then Electronics Unit held prior to his dismissal. I met on 2 December with Chester to tell him specifically about the way in which the restructure would affect him. This was not an opportunity afforded to any other staff member. A full staff briefing was held later that day". At the meeting on the morning of 2 December 1994 she advised him of a new position in the structure, that of Employment Liaison Officer, and Mr Chester indicated that he may be interested in applying for that position.
Later that day, at a staff meeting, Ms Stacey gave a deadline of 9 December for staff to advise her where they wanted to fit in with the new structure. Ms Stacey said that Mr Chester appeared agitated at the meeting, sighed noticeably but did not make any comment. Before the meeting, Ms Stacey had written some notes in her handwriting. She stated at the meeting that it was "time to stop talking and accept it and move forward. If you choose not to, you will be disobeying my lawful instruction to you as General Manager". Ms Stacey's handwritten notes add the words "and you leave yourself open to sacking. If this occurs, don't feel that unions or industrial courts can help you because the law is on my side". Ms Stacey did not state the words relating to sacking at the meeting. She also did not make the statement relating to the law being on her side, and when pressed she was unable to say why she had included those words in her notes.
I do not consider that what transpired on 2 December 1994 could be said to constitute a warning or an opportunity to respond to allegations within the meaning of Section 170DC.
At a meeting on 13 December 1994
By Friday 9 December 1994 Mr Chester and others within the Electronics Unit had not advised Ms Stacey where they wanted to fit in within the restructured organisation. The deadline was extended to the following Monday and still these people had not spoken up. Mr Chester's evidence is that his position had already been restructured in July before the rest of the restructure had taken place and he did not think there was any need for him to act further.
Mr Caporn, Mr Chester's immediate superior, called a meeting of the Electronics Unit on 13 December 1994 to air any remaining issues about the restructure. At first Mr Caporn did not intend to invite Ms Stacey but changed his mind and invited her at short notice. It became apparent to me from Ms Stacey's verbal evidence that she was annoyed about what she described as this "secret" meeting. According to Ms Stacey she attended the meeting and expressed her disappointment at the lack of progress in adopting the new structure by a few individuals in the Unit as the delay was having a significant impact on the operational priorities of the company. She said that if staff could not accept the changes, they should consider their future with Itec. If they chose to leave, they should do so quickly. Ms Stacey said "in particular, I addressed Chester on the impact his behaviour was having on the organisation. I indicated my concern that he had not availed himself of any opportunity to raise any individual or Unit concerns (as the elected representative). And, he had chosen instead to display his displeasure in an inappropriate manner, in full view of staff. In my closing comments, I directed the Electronics Unit to fulfil the responsibilities to the company to implement the new structure within 24 hours".
In her verbal evidence, Ms Stacey admitted that she became very angry in the course of that meeting and that she had raised her voice. I accept the evidence of the witnesses present at the meeting that in fact Ms Stacey became very agitated, that she singled out Mr Chester for comment, that any "unacceptable" conduct was not identified, that she swore at the people present and then "stormed out" of the meeting. This was not a situation in which Mr Chester was given a fair opportunity to be heard.
At a meeting with Ms Stacey on 14 December 1994
After the meeting on 13 December 1994, Mr Chester went home and thought about what had happened, and he said he went to see Ms Stacey in her office in a spirit of reconciliation on the next day and tried to explain his feelings to her. He wanted to tell Ms Stacey that he had decided that his future was with Itec but did not get a chance. Ms Stacey made a number of confrontational statements to him, became irrational and emotional, and held the door open for him to leave.
Ms Stacey's version was that she spoke to Mr Chester and "had cause to reinforce the following points:
(a)from 1 August he was not the Unit Co-ordinator and staff reported directly to me;
(b)that the inappropriate and aggressive behaviour brought to his attention in the middle of the year was still prevalent, and could no longer be tolerated;
(c)any attempts to undermine the changes being implemented will not be accepted;
(d)and it was time to decide his future at Itec".
Miss Stacey's evidence was that before this "meeting" on 14 December, two members of the Electronics Unit had approached her in private and had told her that they felt intimidated by, and felt fearful of, Mr Chester. She did not provide Mr Chester with particulars of the allegations because she wanted to protect her staff. On balance, I find on the evidence that this meeting between Mr Chester and Ms Stacey became heated, that there were insufficient particulars given to him about allegations concerning his conduct and performance, that he was given no reasonable or fair opportunity to respond, and that this could not be said to comply with Section 170DC.
At a meeting with Mr Horobin, Ms Stacey and Mr Caporn on 15 December 1994
On the evening of 14 December the Board of Management of Itec met. Ms Stacey addressed the Board in relation to Mr Chester. The minutes of the meeting state that Mr Chester "had not accepted the proposed structure and was not currently performing at a satisfactory level. Performance problems had been identified and noted also in the past and these problems remain ongoing". The Board agreed that, having considered the General Manager's report, the General Manager was to advise the Training and Development Officer that his services would no longer be required as from 15 December 1994.
On 15 December Mr Chester was called into a meeting with Mr Horobin, Ms Stacey and Mr Caporn. It was common ground, and the minutes of the meeting show, that Ms Stacey advised Mr Chester that the Board had heard her report on his performance on the previous evening, and that the Board had unanimously accepted her recommendation that Mr Chester's services to Itec be terminated as from 15 December 1994. Mr Chester said that he felt very stressed and shocked, as he had had no warning of what was about to happen. Mr Caporn's evidence was that Mr Chester became very red, very agitated as the meeting progressed, and was hyperventilating. The minutes say that Mr Chester made a few comments in mitigation, that is that he believed that he made his section work, that it was on budget, that he believed he had helped improve training courses, had good contacts in industry and that he believed he had made a great personal contribution to Perth Itec.
The applicant's reactions showed that he did not seem to be aware that his employment was being terminated primarily because of his alleged aggressive and intimidatory behaviour and his alleged obstruction of the restructure. This is consistent with his evidence that it was never put to him that his employment might be in jeopardy as a result of those allegations. In fact, the respondent had no complaint about Mr Chester's performance at his training duties.
At the meeting Mr Horobin then explained the reasons for the Board's action, that is that he had intimidated staff, that he had been insubordinate to Jeanette Stacey and that he was not making the required transaction to the new structure. Ms Stacey said that staff had expressed to her as far back as April 1993 and as recently as that week, that they were "scared of Robert" and that his aggressive behaviour, inappropriate communication style and lack of openness had made it very difficult to work with him in a respectful and trusting way. The notes of the meeting state that Mr Chester's statement in mitigation was not considered sufficient to change the resolve of the Board that Mr Chester be sacked.
Ms Stacey offered Mr Chester the opportunity of resigning, and Mr Chester said that he did not want to resign. Ms Stacey told Mr Chester that his employment with Itec was terminated as from that day, and he was escorted from the Itec premises shortly afterwards by Mr Caporn without being given much opportunity to gather his personal effects.
Ms Stacey and Mr Horobin gave evidence that at the Board meeting, the Board had not made the decision to terminate Mr Chester's employment but that the Board had given them authority to institute the process of termination if Mr Chester did not show cause why he should not be terminated. As Mr Chester had not brought anything new to their attention, they had then terminated his employment. It was submitted that Mr Chester was given every opportunity to respond to the allegations made against him, but that he did not do so.
I am unable to accept that submission. In the first place, the Board's minutes clearly indicate that the termination decision had already been made. Even if the position was as Mr Horobin and Ms Stacey described it, I consider that what happened on 15 December did not constitute a fair opportunity for Mr Chester to defend himself against any allegations. At the beginning of the meeting he was told that the Board had accepted Ms Stacey's recommendation that his services be terminated. This was very distressing and caused him to think that the decision had already been made. The allegations against him were not, and never seem to have been, sufficiently particularised to enable him to respond to them adequately. For these reasons, I consider that the meeting of 15 December did not comply with the requirements of Section 170DC and that Mr Chester must therefore succeed in his application.
That is sufficient to dispose of the matter. My view on the evidence, however, is that even if Section 170DC had been complied with, it would have been difficult for this court to find that Mr Chester's alleged intimidatory and aggressive behaviour was such as to warrant termination. The most I am able to find on the evidence is that he raised his voice "dressing down" a fellow employee. Mr Chester admitted that he had done this and felt that it was "normal" that this happened occasionally. I do not condone that type of behaviour and consider it inappropriate in the workplace, but it would have been harsh or unjust to terminate Mr Chester's employment for that reason. Ms Stacey herself raised her voice to her fellow employees on 13 December. Mr Chester is a very tall and strongly built man, and it is easy to see that some of his fellow employees may have been a bit intimidated by his size. This in itself is not enough.
Further, the evidence relating to Mr Chester's deliberate obstruction of the restructuring process did not, in my view, amount to much. The restructure was going ahead anyway and Mr Chester's position had already been restructured. I can understand Ms Stacey's frustration that the restructure was not moving ahead as rapidly as she had hoped. Staff in the Electronics Unit, however, had concerns that they were not going to be represented at management level within the new structure. Mr Chester was clearly not happy with the restructure but neither were others in the department. By mid December everyone,
including Ms Stacey, was under a lot of stress and feelings ran high. This, in my view, contributed to the eventual termination of Mr Chester's employment.
REMEDY
Mr Chester has found alternative employment. I am satisfied on the basis of the obvious ill feeling between the parties, particularly by the time of the hearing of this matter, that reinstatement would be impracticable. Mr Chester was unemployed until he started part-time work on 16 January 1995 at a salary of $25,000. His salary with the respondent was $36,195 per annum. I am not satisfied on the balance of probabilities that the applicant's salary would have been reduced from 30 December 1995. Although I accept that termination of employment will almost always cause some stress to an employee, in this case the evidence was that Mr Chester suffered stress in the ensuing months from April 1994. There is no medical evidence to suggest that he suffered any more stress as a result of the termination.
Under Section 170EE, in working out the amount of compensation, this court must have regard to the remuneration that the employee would have received if the employer had not terminated the employment. The respondent argued that it is likely that if the applicant's employment had not been terminated on 15 December, his employment would not in any event have continued much longer at Perth Itec, either because he would have been terminated in any event or because he may have left of his own volition. There was evidence that Mr Chester had been thinking about obtaining alternative employment, although his evidence is that he had decided just prior to termination that his future lay with Itec and that he only applied for another job after his termination. Given the obvious clash of personalities between Mr Chester and Ms Stacey, I consider it unlikely that he would have remained employed by the respondent for many more months.
In assessing the amount of compensation I have taken into account that Mr Chester would not have remained with Itec for much longer than three or four months, that he was unemployed for a month, that his new position is part time and at a lower salary than his previous position, that he was a long standing employee, that he is 52 and would have been unlikely to have obtained another, more highly paid, position within a few months of termination. In the circumstances I consider that compensation of $5,000 is an appropriate award in this matter.
I certify that this and the preceding 19 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate:
Date:
Appearance for the Applicant: Mr Lovell of the CECPU
Appearance for the Respondent: Mr Ellis on instructions from the Chamber of Commerce and Industry
Date of Hearing: 23, 24, 25 and 26 May 1995
Date of Judgment: 9 June 1995
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