Ruben Sanzana v Activ Foundation Incorporated T/A Activ Foundation

[2016] FWC 1686

[2016] FWC 1686

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ruben Sanzana
v
Activ Foundation Incorporated T/A Activ Foundation
(U2015/8667)

COMMISSIONER WILLIAMS PERTH, 30 MARCH 2016

Termination of employment.

[1] This matter involves an application made by Mr Ruben Sanzana (Mr Sanzana or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Activ Foundation Incorporated T/A Activ Foundation (Activ or the respondent).

[2] The application was the subject of a conference with a Fair Work Commission (Commission) conciliator however the matter was not resolved and so has been referred for determination.

Background

[3] The respondent is a provider of services to people with disabilities, whom the respondent refers to as clients. These services include respite, supported employment, education and training, home and community care, transport and recreational activities. The respondent has 2500 employees.

[4] Mr Sanzana commenced employment in November 2013 in the role of a Residential Aide. This required Mr Sanzana to work with the respondent’s clients who reside in a care facility provided by the respondent.

[5] Following an investigation by the respondent into a number of allegations against Mr Sanzana in May 2015 the respondent dismissed Mr Sanzana on 16 June 2015 with two weeks’ pay in lieu of notice.

[6] The letter of termination states that the respondent had found that three allegations against Mr Sanzana had been substantiated. They were that firstly on 10 May 2015 Mr Sanzana upset a client by yelling at the client that he did “not give a shit” about the client’s friends, secondly on 13 May 2015 he yelled at a fellow staff member in the presence of other staff and clients, which clients are easily distressed by loud voices and arguments, and thirdly that on 17 May 2015 he went into part of the residential facilities where female residents reside at a time when they were showering and dressing. He continued into this area having been told this was the situation and opened the door to the bathroom, attempted to converse with one female client who was still getting dressed, attempted to converse with another female client who was also getting dressed and upset a third female client to the point where she began crying.

The evidence and factual findings

[7] At the hearing Mr Sanzana gave evidence on his own behalf. The respondent called as witnesses five employees being Ms Lorraine Austen (Ms Austen) an Overnight Support worker, Ms Lauren Quigley (Ms Quigley) an Accommodation Team Leader, Ms Marie Tan a Residential Aide, Mr Robert Tilley (Mr Tilley) a Residential Aide and Ms Janine Poa (Ms Poa) a HR Advisor.

[8] Having considered the evidence of these witnesses I make the following factual findings.

[9] Mr Sanzana commenced employment with the respondent in November 2013. His initial place of work was at a residential home for clients of the respondent called Calophylla House.

[10] Also working with Mr Sanzana at that time in Calophylla House was Mr Ses Seia (Mr Seia).

[11] The evidence is that there was ongoing friction between Mr Sanzana and Mr Seia. On 11 June 2014 Mr Sanzana made a written complaint about Mr Seia to his then Team Leader Ms Maude Hutchins (Ms Hutchins). The complaint involved a number of criticisms of how Mr Seia went about his duties and that on a few occasions he had been rude and confrontational towards Mr Sanzana. Mr Sanzana’s written complaint closed by explaining that if it is necessary to resolve these problems he was happy to meet with Mr Seia and with Ms Hutchins to discuss the matters he had raised.

[12] On the evening of 11 June 2014, after he had provided his written complaint to his Team Leader, Mr Sanzana’s evidence which I accept, is that Mr Seia interrupted Mr Sanzana who was having a discussion with another staff member and spoke to Mr Sanzana in an abusive manner, became aggressive and threatened to take Mr Sanzana outside and bash him up.

[13] The following day Mr Sanzana advised Ms Hutchins of what occurred that evening and requested a formal investigation into the complaints he had made about Mr Seia.

[14] Mr Sanzana’s evidence is that approximately a week later Ms Hutchins came to him and told him there was nothing to worry about because Mr Seia had applied to move to another house, Buttercup, and this relocation had just been approved so Mr Seia would be leaving Calophylla House.

[15] A few weeks later on 1 July 2014 Ms Hutchins gave Mr Sanzana a letter which responded in the some detail to the complaints he had made about Mr Seia. The letter stated that Mr Sanzana had mentioned he felt bullied and threatened by Mr Seia’s behaviour on the night of 11 June 2014. Ms Hutchins says these matters have been looked into and that:

“...I am satisfied that my findings will not require any further investigations into the matters you have raised stop furthermore, I believe that some joint efforts need to be made to bridge any misunderstandings which have occurred between yourself and work colleague Ses Seia.”

[16] The letter went on to advise that Ms Hutchins will organise a meeting between Mr Sanzana, Mr Seia and herself to discuss these issues and look at how they can be resolved.

[17] The evidence of Mr Sanzana which I accept is that no further action was taken by Ms Hutchins or anybody else regarding his complaints against Mr Seia and there was no such meeting arranged. I also accept Ms Hutchins did not stand Mr Seia down from work even though Mr Sanzana had told her Mr Seia has threatened my Sanzana with physical violence.

[18] Three weeks later on 24 July 2015 Ms Hutchins provided Mr Sanzana with a letter which was a complaint made against him by Ms Lisa Tan, the daughter of Ms Marie Tan, who also worked at Calophylla House.

[19] The letter provided to Mr Sanzana from the respondent was dated 24 July 2014, however concerned allegations that Mr Sanzana on 10 June 2014 had bullied, intimidated and harassed Ms Lisa Tan. The specific examples cited of this behaviour allegedly involved Mr Sanzana ordering Ms Lisa Tan to stop assisting Mr Seia, and an ongoing verbal conflict involving the three employees about this.

[20] Mr Sanzana’s evidence was that during the meetings the respondent’s staff had with him about this complaint he expressed concern and frustration at what he believed was the differential and unfair treatment by Ms Hutchins, who had chosen to formally investigate the complaint Ms Lisa Tan had made against him, but had not done the same with the complaint he had made against Mr Seia. Mr Sanzana also expressed the view that he believed it was actually Mr Seia who was behind the making of the complaint by Ms Lisa Tan.

[21] Following a number of meetings and having considered Mr Sanzana’s response to this allegation the respondent provided a written first and final warning dated 21 August 2014 to Mr Sanzana on the basis that they were satisfied that the allegation that he had bullied, intimidated and harassed Ms Lisa Tan on 10 June 2014 was substantiated.

[22] At the meeting on 21 August 2014 when he was advised of the respondent’s conclusion and provided with the first and final written warning he asked Ms Hutchins who had witnessed his alleged bullying of Ms Lisa Tan and Mr Sanzana’s evidence which I accept was that he was told it was in fact Mr Seia.

[23] The respondent did not call Ms Lisa Tan or Mr Seia to give evidence regarding the events that led to the first and final warning being issued to Mr Sanzana.

[24] The respondent in deciding to dismiss Mr Sanzana did consider this first and final warning from August 2014 relevant. However nobody from the respondent was called to give evidence who was involved in the investigation into Ms Lisa Tan’s complaint. Consequently the Commission has no knowledge as to whether the respondent had properly considered what appears to be the quite reasonable concern Mr Sanzana had raised at the time, that Ms Lisa Tan’s complaint which concerned an interaction between Mr Sanzana, Mr Seia and Ms Lisa Tan may have been a complaint manufactured by Mr Seia as payback for Mr Sanzana having earlier complained about him. The fact the respondent seems to have relied upon Mr Seia as a witness to the alleged bullying incident by Mr Sanzana, given the history between the two men and Mr Sanzana’s prior complaint about Mr Seia, does create doubt as to the quality of the respondent’s investigation and the conclusion they reached at the time.

[25] On the evidence before the Commission I accept there is also some substance to the complaint Mr Sanzana made to the respondent at the time it was investigating Ms Lisa Tan’s complaint that they treated her complaint differently to the bullying complaint he had previously made. The evidence is that Ms Hutchins did not approach the complaint Ms Lisa Tan made about Mr Sanzana in the same way the respondent had dealt with Mr Sanzana’s complaint about Mr Seia. Rather than suggesting that Ms Lisa Tan with Ms Hutchins and Mr Sanzana meet together to see if the problems between the two employees could be sorted, as she had proposed to do with Mr Sanzana and Mr Seia, Ms Hutchins instead embarked on a formal disciplinary process against Mr Sanzana which resulted in him receiving a first and final warning which the respondent then relied upon when deciding to later dismiss him. Indeed the complaints made by Mr Sanzana was far more serious given he alleged Mr Seia had threatened him with violence whilst Ms Lisa Tan’s complaint was limited to her being upset by the manner in which Mr Sanzana had spoken to her in a raised voice. There is no apparent explanation for this inconsistency in approach by the respondent.

[26] Towards the end of August 2014 Ms Hutchins was promoted to become a Manager with the respondent and Ms Moyle became Mr Sanzana’s new Team Leader. In September Mr Sanzana spoke to Ms Moyle about the complaints he had made against Mr Seia and Ms Lisa Tan’s complaint against him and what he perceived as the injustice that had occurred.

[27] In November 2014 he was transferred at the respondent’s initiative to Buttercup House. At the time he expressed his concern to Ms Moyle about being transferred there because he was aware that Mr Seia was working there. She told him it was not her decision and they needed more male staff at Buttercup House.

[28] At Buttercup House Mr Sanzana met his new Team Leader who was Ms Quigley. He told her about the issues he had hit had in the past with Mr Seia. Ms Quigley in her evidence confirms she was aware there had been some previous conflict between Mr Sanzana and staff at his previous house. Mr Sanzana’s evidence is that Ms Quigley told him he would not be rostered to work with Mr Seia.

[29] After his induction at Buttercup House Mr Sanzana was given his roster. Mr Sanzana noticed that he was rostered to work with Mr Seia on a Saturday. Prior to the Saturday, on the Thursday, 20 November 2015, he sent an email raising his concerns about this to the rostering staff. He pointed out he had been told that this was something that would be avoided due to some past serious issues between the two employees and he would appreciate it if they could fix the roster so he didn’t work with Mr Seia.

[30] For the first few months Mr Sanzana worked at Buttercup House without incident.

[31] But after a period Mr Sanzana says that he again was being bullied and harassed at times by Mr Seia and he raised this on a number of occasions with Ms Quigley who told him she couldn’t do anything unless he put his complaint in writing. Consequently on 22 May 2015 Mr Sanzana provided a three and a half page letter of complaint to Ms Quigley. The complaint initially traversed the history of complaints he had made about Mr Seia in 2014 and then made a series of specific complaints about Mr Seia during his time in Buttercup House. Mr Sanzana complained then that Ms Marie Tan had begun to show rude and bullying behaviour toward him. He also complained about her work and other behaviours. Mr Sanzana’s complaint also mentioned the events of Sunday, 17 May 2015 where he said he went into unit two, the ladies area of the residential house, and Ms Marie Tan became verbally abusive and pushed him to get him out of the area.

[32] Three days later on 25 May 2015 Mr Sanzana received a phone call from the respondent to advise him that another party had lodged an allegation against him and that he was to be suspended whilst the matter was investigated. A letter dated 27 May 2015 was provided to Mr Sanzana which detailed three allegations against him and invited him to respond to those.

[33] Mr Sanzana responded in writing on 1 June 2015 and in summary denied all three allegations.

[34] Meetings were subsequently held with Mr Sanzana as part of the respondent’s investigations.

[35] The respondent during the investigation process chose to ignore the fact that Mr Sanzana had made a complaint to Ms Quigley in writing before these three allegations had been brought to his attention. The evidence of Ms Poa was that they told Mr Sanzana his prior written complaint would not be addressed as part of the investigation process but it would be investigated following the conclusion of the investigations into the three allegations against him.

[36] The respondent gives no explanation for choosing to investigate the allegations against Mr Sanzana first before it had investigated the written complaint made by him on 22 May 2015. The respondent ignored the fact that some of the employees complaining about Mr Sanzana where ones he had also complained about to the respondent.

[37] The letter of termination provided to Mr Sanzana on 16 June 2015 by the respondent refers to the three allegations that had been put to him. Mr Sanzana had provided a response in writing to those allegations. The letter of termination stated that the employer had considered his response and found those responses neither reasonable nor sufficient and found that based on the balance of probabilities the allegations were all substantiated.

[38] I will now turn to consider the allegations in turn and the evidence before the Commission regarding each allegation.

Allegation one

[39] It is alleged that during a shift on 10 May 2015, Mr Sanzana upset a client, whom I will identify as Resident A, by yelling at him that he “didn’t give a shit about his friends.”

[40] Mr Sanzana denied he had ever said this to Resident A.

[41] Resident A was not called to give evidence. The evidence of the respondent’s witnesses is that Resident A has Downs syndrome as well as psychosis and hears voices very regularly. The evidence of Ms Quigley is that every day he hears voices. The witnesses agree that Resident A can be aggressive and has been known to kick doors or break windows.

[42] Evidence was given by Ms Austen as to a discussion she had with Resident A. Her evidence was that on 10 May 2015 she spoke to Resident A and he was crying. She says it is unusual for him to cry. After about 15 minutes he settled down. Resident A kept saying “Ruben was mean to me”. She asked Resident A to tell her what had happened and why he was upset. Her evidence was that Resident A said to her that Ruben had said to him “I don’t give a shit about your friends.”

[43] Ms Austen’s evidence was that she does not know the context of what Mr Sanzana said. Her evidence was that Resident A then told her that another client was with Resident A when Mr Sanzana made this statement about Resident A friends and that client then repeated what Mr Sanzana had said. Ms Austen asked Resident A if Mr Sanzana had told the client not to say that and Resident A said Mr Sanzana hadn’t done so.

[44] Ms Austen says that Resident A is very truthful. Ms Austen says she has no doubt that what Resident A told me had happened did actually happen.

[45] Ms Austen did not speak to Mr Sanzana about the matter that day.

[46] The next day Ms Austen told the Team Leader Ms Quigley what Resident A had explained to her.

[47] More than a week later on 19 May 2015 Ms Quigley asked Ms Austen to document the incident and the following day 20 May 2015 Ms Austen sent an email recounting the discussion with Resident A.

[48] Mr Sanzana denies he at any time spoke to Resident A any words at all similar to what Ms Austen says Resident A told her. Mr Sanzana makes the point, which other witnesses for the respondent accepted, that Resident A can be aggressive and physically violent towards staff and others and in that context saying to him words to the effect that “I don’t give a shit about your friends” would involve a real risk that Resident A would react violently towards whoever said this. Mr Sanzana was unshaken in his evidence under cross-examination.

[49] The difficulty with the evidence on this issue is that the evidence of Ms Austen is hearsay. Ms Austen is recounting a story that Resident A told her. She was not present and did not witness Mr Sanzana speaking to Resident A. Whilst the Commission may choose to accept hearsay evidence the Commission should be very cautious in accepting hearsay evidence over contradictory evidence which is direct evidence as in this case are Mr Sanzana’s denials. Mr Sanzana agrees that he had spent time with Resident A on the day in question but denies he said anything inappropriate to him. Resident A was not called as a witness to give direct evidence as to what occurred between him and Mr Sanzana on 10 May 2015. The Commission should in my view be cautious due to the absence of any expert evidence as to the nature of Resident A’s disability and what impact this may or may not have on the reliability of statements Resident A may make to others in particular circumstances.

[50] The Commission’s role is to determine the facts on the balance of probabilities based on the evidence provided at hearing. There is no reason to accept the hearsay evidence of the respondent over the direct evidence of Mr Sanzana. Given the limited evidence available there is not on the balance of probabilities sufficient evidence to conclude that Mr Sanzana spoke or behaved in an inappropriate manner to Resident A on 10 May 2015.

Allegation two

[51] This allegation is that at approximately 1.00 p.m. on 13 May 2015 Mr Sanzana yelled at a fellow staff member in the presence of other staff and clients.

[52] The fellow staff member referred to is Mr Seia.

[53] There is some history of interpersonal conflict between Mr Sanzana and Mr Seia. When Mr Sanzana was relocated to the Buttercup facility he had objected on the basis that some time prior Mr Seia had been relocated to Buttercup which meant they had not been working together which had resolved their conflicts. Mr Sanzana was concerned that he would be subject to what he said was bullying and harassment by Mr Seia if he was moved to the same work location. Mr Sanzana’s concerns were ignored by the respondent and he was relocated to Buttercup.

[54] It is not disputed that there was some verbal conflict between Mr Seia and Mr Sanzana on 13 May 2015. Mr Sanzana however denies he yelled at Mr Seia and rather says it was Mr Seia who yelled at him.

[55] The evidence of the respondent’s witnesses who were responsible for considering Mr Sanzana’s response to this allegation and for making the decision to dismiss him was that they concluded on the information before them that Mr Sanzana had yelled at Mr Seia. This conclusion is surprisingly at odds with a key piece of evidence, that was available at the time, which is the handwritten statement of Mr Tilley dated 19 May 2015

[56] The handwritten statement of Mr Tilley on the second line reads that at approximately 1.00 p.m. he heard Mr Seia “yelling Someone needs to vacuum the dirty rug.” He asked Mr Seia who he wanted to do it and Mr Seia said Mr Sanzana can do it. Mr Tilley’s statement goes on to say that he moved into the ladies dining room and then Mr Seia came down to the ladies kitchen and

“…started speaking loudly to Ruben “you need to come and vacuum the rug!” He kept saying similar things, equally loudly regarding this task. Ruben was refusing and saying things like “you can’t speak to me like that”. He (Ruben) left ladies house saying “I’m going to talk to the team leader.”

[57] Mr Tilley goes on to say that he spoke to both men and told them they shouldn’t be having this conversation in front of the clients and Mr Tilley says that Mr Seia said to him that “He needs to be told (i.e. to do his duties).”

[58] Mr Sanzana’s account of what occurred on this day is consistent with Mr Tilley’s hand written statement. Mr Seia was not called to give evidence.

[59] Mr Tilley’s statement, which he confirmed in evidence at the hearing, clearly indicates that Mr Seia started the conflict between himself and Mr Sanzana. It was Mr Seia who was initially yelling. Next in the ladies kitchen it was Mr Seia who continued to speak loudly. Mr Tilley did not give evidence that Mr Sanzana was yelling nor did his original statement say that Mr Sanzana was yelling or speaking loudly at all. Mr Tilley’s evidence is that it was Mr Sanzana who was then going to complain about Mr Seia’s behaviour.

[60] On the basis of the hand written statement Mr Tilley made shortly after the incident which was provided to the employer at the time it is difficult to understand, given that Mr Tilley was the independent witness to this interaction, how the investigators concluded it was Mr Sanzana who yelled at Mr Seia. But unfortunately that was the conclusion that Ms Quigley came to notwithstanding she had before her at the time Mr Tilley’s hand written statement 1 and Mr Sanzana’s denial he had yelled at Mr Seia.

[61] On the basis of the evidence before the Commission at the hearing there is no evidence to support the conclusion that on 13 May 2015 Mr Sanzana yelled at Mr Seia at all. Indeed the only persons present being Mr Tilley and Mr Sanzana confirm in their evidence it was Mr Seia who was speaking in a loud voice and yelling, not Mr Sanzana.

Allegation three

[62] This allegation is that on 17 May 2015 Mr Sanzana went into the ladies side of Buttercup House and that another staff member Ms Marie Tan told Mr Sanzana not to enter the hallway and bedroom area as the female clients were having showers and dressing. It was alleged that Mr Sanzana ignored this request and continued to enter the hallway and opened a door to the bathroom. That he then went to a bedroom doorway and attempted to engage in conversation with a female client who was still getting dressed and attempted to engage in conversation with another female client who was also getting dressed. It was alleged that a third female client was upset to the point where she began crying.

[63] The evidence as to what happened on this day is conflicting. Mr Sanzana says he went into the ladies area to get some cleaning stuff from the laundry but was confronted by Ms Marie Tan who told him to leave as he had nothing to do there. His evidence and his explanation to the respondent during the investigation was that he decided to leave to avoid a confrontation.

[64] Mr Sanzana says that later when he saw that Ms Marie Tan had gone for a smoke break he went to see a client, whom I will identify as Resident B, who normally liked spending her Sunday evening with the men in the other side of the house. Ms Marie Tan followed Mr Sanzana into the ladies area and again confronted him he says at the end of the corridor. He told her he had a right to be there as a staff member but she became abusive and physically pushed him to get out of there, she also made some offensive remarks about his appearance that day.

[65] He denies having any conversation with any of the residents in their bedrooms. He says he spoke to Resident B while she was sitting on a sofa watching TV. He denies he made any resident cry.

[66] The evidence of Ms Marie Tan however is to the contrary and she says that around 4.30 p.m. Mr Sanzana changed his clothes and was dressed in black pants, a long sleeved black shirt and a black leather jacket and she thought he was going to take the male clients out somewhere. Her evidence is that Mr Sanzana came into the female part of Buttercup House and walked down to the kitchen and kept walking down to the bedrooms and bathrooms. She said to him you can’t go down there because the girls are showering.

[67] She then said to Mr Sanzana again “Don’t go down there because the girls are showering.” He pushed past her and opened the door to the bathroom. She said “Please don’t go there” but he just opened the door. She said to him “Who the hell do you think you are mate?” He replied “Who do you think you are?” She said to him “You’re bloody horrible.” She then said “fuck” and really wanted to mouth off at him but was trying to keep calm. She admits she did raise her voice but he was annoying her.

[68] Her evidence is that she followed Mr Sanzana into the bedroom area and saw that one client was in her bedroom sitting on her bed with no clothes on but holding a towel. She pulled the door closed and told the client to stay there. Another client only had a towel on her and it was possible for Mr Sanzana to see both of them.

[69] Her evidence was that Mr Sanzana then spoke to a client who was in the lounge room. He was bending down towards her with his face very close to hers and when he straightened up Ms Marie Tan’s evidence is that the client started crying and it seemed to her that what he had been saying had intimidated or upset her. Ms Marie Tan accepts the client in the lounge room may also have been crying because of the atmosphere that had been created by the raised voices.

[70] Her evidence was that later this client said to her that Mr Sanzana scares her.

[71] After this incident Ms Marie Tan wrote a report and provided this to the house Supervisor. Ms Marie Tan’s hand written report dated 18 May 2015 was provided as part of her evidence at the hearing.

[72] Mr Tilley who witnessed some of these events also made a written statement on 19 May 2015 as to what he knew of this incident that had occurred two days earlier. His hand written statement was to the effect that he came into the foyer of Buttercup House and witnessed Ms Marie Tan yelling at Mr Sanzana that he should get out and that he was a predator as Mr Sanzana was making his way out the door of the ladies side of the house. His statement at the time was that there were a number of the lady clients present and he said to Ms Marie Tan that this was not appropriate especially in front of the clients. His statement confirmed in evidence at the hearing was that later one of the female clients asked to talk to him and she appeared to be upset. She explained to him that Mr Sanzana had gone into the ladies bedroom area when she was in her room with the door open immediately after having showered. Mr Tilley’s statement, confirmed in his evidence at the hearing was that this client said to her that Mr Sanzana came straight down and that you don’t know how to handle it when someone does this.

[73] Mr Tilley’s statement was that Ms Marie Tan then came and apologised to him for the incident regarding what had happened in the foyer, she said Mr Sanzana had walked in for no specific reason and she had asked him to leave and to not continue down the ladies hallway. Ms Marie Tan said to him that she said to Mr Sanzana they’re having showers. Ms Marie Tan then told Mr Tilley that Mr Sanzana refused to stop and continued down the ladies hallway.

[74] I note that in Mr Sanzana’s written response to the respondent regarding these allegations he suggested that they should speak to Mr Tilley as an independent witness to what occurred. Mr Tilley presented as a forthright witness and I accept his evidence as to what he had seen on 17 May 2015.

[75] It is clear from Ms Marie Tan’s cross-examination that she has some dislike for Mr Sanzana due to past conflicts with him. However in my view she was open about her feelings towards him and on balance I do accept her evidence as to what occurred on 17 May 2015.

[76] In short then I reject Mr Sanzana’s denial that he had acted inappropriately in the ladies side of the house rather I accept Ms Marie Tan’s evidence that he ignored her advice to him that the ladies were showering and were getting dressed and with this knowledge continued down the hallway into their bathroom and bedroom areas which caused some upset for a number of the female clients. I accept the evidence also that he spoke to one female client who was sitting on the sofa and that interaction appeared to have upset her.

Conclusion

Valid reason

[77] The first two allegations relied on by the respondent for dismissing Mr Sanzana are not supported by the evidence and these are not valid reasons for the dismissal of Mr Sanzana.

[78] The third allegation is supported by the evidence and I am satisfied that on 17 May 2015 Mr Sanzana misconducted himself and as such his actions on this day were a valid reason for his dismissal.

Notification of the reason

[79] Mr Sanzana had been notified in the show cause letter provided to him to which he responded of the reason for which the employer was considering dismissing him.

Opportunity to respond

[80] Mr Sanzana was given a proper opportunity to respond to the reasons the respondent was considering dismissing him for and did so in writing.

Refusal to allow a support person

[81] There was no refusal to allow Mr Sanzana to have a support person present during any discussions relating to dismissal.

Unsatisfactory performance warnings

[82] Mr Sanzana was not dismissed for unsatisfactory performance so this issue is not relevant.

The size of the employer and dedicated human resource specialists

[83] The respondent is a large employer with dedicated human resource specialists and whilst the procedure followed by the respondent in terms of providing a show cause letter to Mr Sanzana, conducting an investigation, holding meetings with him prior to making a final decision were superficially appropriate as will be noted below there was a number of flaws in the respondent’s decision making in this instance.

Other matters

[84] There were a number of matters which the respondent’s staff took into account in coming to their decision that Mr Sanzana should be dismissed.

[85] The first critically was that they concluded allegation one and allegation two had been substantiated when as explained above this was a wrong conclusion in both instances.

[86] There is also some doubt as to the validity of the previous first and final warning as explained above. There was real inconsistency in the manner in which the respondent dealt with the bullying complaints Mr Sanzana’s raised compared to the manner in which the respondent dealt with the bullying complaint Ms Lisa Tan made against Mr Sanzana, which is unexplained. There were good reasons for the respondent to question the reliability of any information Mr Seia might have given to the respondent regarding Ms Lisa Tan’s allegations against Mr Sanzana. In any event given that warning was in relation to supposedly bullying behaviour and only allegation two involved similar behaviour and this allegation was not correct the first and final warning should not have been a factor in the respondent’s decision-making process.

[87] Clearly the respondent’s decision to dismiss Mr Sanzana was based on their conclusion that all three allegations had been proven. That conclusion was wrong on the evidence and Mr Sanzana should in my view have been exonerated of allegation one and allegation two. It is reasonable to assume in the circumstances then that perhaps a different outcome would have occurred had the respondent’s conclusion only been that allegation three was proven.

Conclusion

[88] The Commission’s role is to take an independent view of matters based on the evidence before it and the submissions made at the hearing.

[89] There is no doubt that that Mr Sanzana’s behaviour on 17 May 2015 in the ladies area was not acceptable. He should not have engaged in an argument with Ms Marie Tan. He should not have continued through to the ladies area whilst some ladies were finishing showering and dressing. The evidence is his presence in the area at that time and his behaviour did upset some of the clients.

[90] There is no evidence that prior to this event Mr Sanzana has behaved inappropriately in failing to respect the privacy of female clients. It seems likely that the confrontation between Ms Marie Tan and Mr Sanzana in the hallway of the ladies side of the house was inflamed by their past poor relationship. There is however a common theme in that Mr Sanzana is not accepting of any interference in how he carries out his duties from other staff, whether that be Ms Marie Tan or Mr Seia.

[91] Mr Sanzana’s actions on 17 May 2015 did warrant firm disciplinary action being taken against him however in all the circumstances I do think the decision to dismiss Mr Sanzana was unjust. Mr Sanzana has been unfairly dismissed.

Remedy

Reinstatement

[92] Considering the option of reinstatement as the Commission is required to, the evidence does disclose that there is personal conflict and some animosity between Mr Sanzana and Mr Seia and also with Ms Marie Tan. This is a statement of fact that does not involve any apportioning of responsibility for this state of affairs. However inevitably this suggests that reinstatement of Mr Sanzana is likely to involve some practical difficulties in the workplace.

[93] Separately the respondent presses the point that its clients are especially vulnerable individuals and the Commission should be mindful of any risk to them that might be posed by Mr Sanzana’s reinstatement.

[94] I accept the evidence is that two of the clients have in their own way indicated to the respondent’s staff that Mr Sanzana makes them unhappy. 2Accepting that this is the case is not to say that objectively Mr Sanzana has done anything wrong in his dealings with these two clients however the fact that two clients react this way to Mr Sanzana is a matter the Commission should rightly take into account when considering whether or not reinstatement is appropriate.

[95] Mr Sanzana also explained that he is seeking to pursue a new career direction and re-establish his credentials to gain work as a teacher.

[96] I am satisfied then that reinstatement of Mr Sanzana in this case is inappropriate but I do consider that an order for the payment of compensation is appropriate in all the circumstances.

Compensation

[97] There is no evidence to suggest that an order of compensation would affect the respondent’s viability.

[98] Mr Sanzana had been employed between November 2013 and June 2015.

[99] I think it is readily apparent from the evidence in this case that had Mr Sanzana not been dismissed he would have received a written warning of some seriousness as result of his misconduct on 17 May 2015. It is also clear that there was ongoing friction between Mr Sanzana and a number of employees of the respondent. Whilst it has not been relevant to the decision as to whether or not Mr Sanzana was dismissed unfairly or not there is also some evidence from a number of the other employees to the effect that Mr Sanzana was not a particularly diligent employee. Considering all of this together my assessment is it is not likely that Mr Sanzana would have remained in employment, one way of the other, for longer than a further 12 weeks had he not been dismissed when he was. Mr Sanzana had he not been dismissed would have received remuneration for a period of 12 weeks.

[100] Mr Sanzana’s gross annual earnings was $59,322 and 12 weeks remuneration then would amount to $13,689.69.

[101] Mr Sanzana’s evidence is that he has made very few efforts to obtain other employment. His evidence was he has applied for one casual job but was unsuccessful. Mr Sanzana has made the personal choice to focus on re-establishing his teaching credentials to enable him to gain employment in other fields. He has as a result since being dismissed worked two days as a relief teacher. Whilst Mr Sanzana has every right to take this approach he also has an obligation under the law to mitigate his financial loss by actively seeking out other employment, which he has not done. Consequently there will be a discount of one third in the amount of any compensation to be ordered.

[102] Mr Sanzana received 2 weeks’ pay in lieu of notice on termination.

[103] The balance then is $13,689.69 - $2,281.62 (2 weeks’ wages) - $845.28 (two days relief teaching) = $10,562.79. The total amount to be ordered then is two thirds of this which equals $7,041.86. An order to that effect will be issued.

COMMISSIONER

Appearances:

R. Sanzana on his own behalf.

R. Buckley on behalf of the respondent.

Hearing details:

2016.

Perth:

March 8.

 1   Exhibit R4 at paragraph 27.

 2   Exhibit R5 at paragraphs 26 to 29.

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