[2017] FWC 5376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Hawkey
v
Macedon Ranges Shire Council
(U2017/6105)

DEPUTY PRESIDENT MASSON

MELBOURNE, 8 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] On 7 June 2017, Mr Shane Hawkey (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by the Macedon Ranges Shire Council (the Respondent).

[2] The application indicated that the date that the Applicant’s dismissal took effect was 18 May 2017.

[3] On 26 June 2017, the Respondent filed a response to the unfair dismissal application.

[4] On 27 June 2017, the unfair dismissal application was listed for conciliation before a Fair Work Commission Conciliator, but remained unresolved at the end of the conciliation.

[5] Consequently the matter was listed for hearing.

[6] The Applicant filed written submissions and witness statements to the Fair Work Commission (the Commission) on 14 July 2017. The Respondent filed written submissions and witness statements to the Commission on 7 August 2017.

[7] Section 396 of the Fair Work Act 2009 requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396 of the Act, I find that the Applicant’s application was lodged with the Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that the questions of the Small Business Fair Dismissal Code or genuine redundancy do not apply.

Permission to appear

[8] At a Directions Hearing conducted on 17 August 2017, the Commission granted permission under s.596 of the Act for the Respondent to be represented by a lawyer or paid agent.

Conference or Hearing

[9] At the Directions Hearing, the Commission also sought submissions from the parties as to whether the Commission should conduct either a conference (s.398) or a hearing (s.399) in relation to the matter. Taking into account the number of witnesses and the parties wishes, it was decided that a hearing would be the most effective and efficient way to resolve the matter.

[10] The matter ran as a four day Hearing before the Commission in Melbourne on 1 September, 6 September, 7 September and 19 September 2017.

The Hearing

[11] At the hearing the Applicant was self-represented and gave evidence himself.

[12] At the hearing the Respondent was represented by Mr J McDougall, barrister, instructed by Hunt & Hunt Lawyers. The Respondent called two witnesses:

Mr David McLean: Manager Organisational Development at Macedon Ranges Shire Council

Ms Sandra Griffin: Coordinator Risk and OHS at Macedon Ranges Shire Council

[13] A further two witnesses were ordered by the Commission pursuant to s 590(2)(a) of the Act to attend and give evidence following applications by the Applicant on 21 August 2017. The two witnesses ordered to attend were;

Mr Scott Gilchrist: Coordinator Parks at Macedon Ranges Shire Council

Ms Erin Templeton Injury Management Specialist with Recovre

Factual Background

[14] On 11 November 2013, the Applicant commenced employment with the Respondent as a Turf/Irrigation Maintenance Officer (Classification Band 3 – Level A) in the Turf and Mowing Team of the Parks and Gardens Unit of the Respondent. 1

[15] The Respondent supplied the Applicant with a mobile phone for work purposes only and keys to the relevant facilities to assist the Applicant undertake his duties. 2

[16] Other relevant members of the Parks and Gardens Unit at the time of the Applicant’s employment included Mr Glenn Rose (Senior Team Leader Turf and Mowing) and Mr Luke Coundon (Team Leader Turf/Irrigation, Classification - Band 4). The Applicant’s original position description stated that he reported to the Turf/Irrigation Team Leader (Mr Coundon). 3

[17] On 21 July 2014, Mr Scott Gilchrist was appointed as Coordinator Parks in the Operations Department and in that capacity had responsibility for the Parks and Garden Unit. In August 2015, Mr Matthew Whiteside commenced employment with the Respondent as a Turf Mowing Officer (Classification - Band 3). 4

[18] In August 2014, the Applicant, having become aware that Mr Coundon was classified at a higher classification level than himself, raised concerns regarding his (the Applicant’s) position description with Mr Gilchrist 5. The Applicant sought a review of his position description which Mr Gilchrist agreed to undertake.

[19] On 12 May 2016, Mr Gilchrist sent the Applicant an email attaching a draft revised position description and requested his feedback. 6 The draft PD provided to the Applicant by Mr Gilchrist was notable for the omission of a number items from the Applicant’s original position description that he received on commencement of employment with the Respondent. The Applicant did not respond to Mr Gilchrist’s request for feedback.

[20] On 12 July 2016, Mr Gilchrist and Mr Rose met with the Applicant to discuss the revised position description forwarded to the Applicant on 12 May 2016. At this meeting, the Respondent detailed both the proposed structure of the Turf/Irrigation team and the implications for the Applicant’s reporting relationship, duties and responsibilities. The Applicant was unhappy with the draft position description, the reporting structure and impact on his role. The Applicant asserted during the meeting that his role, as reflected in the draft position description, had been downgraded and that Mr Coundon lacked the skills and knowledge to provide the necessary technical advice required under the proposed structure. 7

[21] On 15 July 2016, Mr Gilchrist sought to meet with the Applicant regarding the Applicant’s position description, however the Applicant was unwilling to meet without the presence of an Australian Services Union (ASU) representative. Mr Gilchrist sought out the Applicant on that day and provided him with a copy of the minutes of the 12 July 2016 meeting. The Applicant regarded Mr Gilchrist’s behaviour as “hounding” and left the office shortly after. The Applicant did not return to the workplace following this incident. 8

[22] On 22 July 2016, the Applicant submitted a Certificate of Capacity and an Incident and Hazard Report to the Respondent alleging bullying and intimidation. 9

[23] On 4 August 2016, Mr McLean and Ms Griffin met with the Applicant and an ASU representative to discuss the Applicant’s complaint of bullying and intimidation. The Applicant’s complaint arose primarily out of his concerns over his position description and his view that his role had been or was being downgraded by Mr Gilchrist. A number of other issues were also raised by the Applicant during the meeting including: his relationship with Mr Gilchrist; training of the road crew; introduction of an RV to replace a quad bike; issues with change of uniform; removal of his jacket from the work utility; and unnecessary work at Gilbert Gordon oval. 10

[24] The Applicant lodged a WorkCover insurance claim with the Respondent on 4 August 2016, which was subsequently accepted by the Respondent’s WorkCover insurance claims agent, Gallagher Bassett, on or about 5 September 2016.

[25] On 15 August 2016, the Respondent wrote to the Applicant advising that his claims of bullying and intimidation had been investigated and were not substantiated. The Applicant’s legitimate concerns regarding the delay in resolving his position description were acknowledged by the Respondent. The process and timeline for finalising the Applicant’s position description was also detailed in that correspondence. 11

[26] Between August 2016 and May 2017, the Respondent worked with Gallagher Bassett in an attempt to develop and implement a return to work plan for the Applicant.

[27] On 25 August 2016, Ms Griffin discussed in a telephone call with the Applicant the process and next steps in effecting a return to work. The Applicant expressed an unwillingness to meet with Mr Gilchrist at this stage as he felt “it was too soon”. Ms Griffin subsequently wrote to the Applicant on the same day. 12

[28] On 26 August 2016, the Respondent wrote to the Applicant’s treating doctor, Dr Ian Gopal, seeking his advice on the Applicant’s capacity to return to work. 13

[29] On 29 August 2016, a new position description was emailed to the Applicant and on 1 September 2016, the Applicant met with Mr McLean and Ms Griffin to discuss the revised position description. A number of key items omitted from the draft position description forwarded to the Applicant on 12 May 2016 by Mr Gilchrist were restored in the revised position description sent to the Applicant on 29 August 2016. During the meeting on 1 September 2016, the Applicant accepted and signed the new position description. 14

[30] On 21 September 2016, the Applicant called the Respondent. During this telephone call, Ms Griffin offered the Applicant an opportunity to undergo mediation with Mr Gilchrist. The Applicant refused this offer. 15

[31] On 28 September 2016, Dr Gopal sent a letter to the Respondent advising that the Applicant was physically fit and very keen to resume his pre-injury duties. Dr Gopal also reported that consultant psychiatrist, Dr Hillol Das, had conducted an independent medical examination of the Applicant on 29 August 2016. Dr Gopal’s correspondence further stated that Dr Das had expressed the view that in respect to the Applicant’s return to work:

“It is imperative that mediation or an appropriate intervention is considered so as to help resolve the matter of his dispute and complaint, because it will otherwise remain an unsafe workplace for him if the matters are not addressed adequately and/or a professional if not trusting relationship is able to be restored between him and the Parks Co-ordinator….” 16

[32] On 3 October 2016, the Respondent received a response from Dr Gopal in relation to the specific duties the Applicant was capable of performing as part of his return to work plan. The response was provided by way of handwritten notes on the proposed return to work plan forwarded to Dr Gopal on 26 August 2017. 17

[33] On 4 October 2016, the Respondent offered the first return to work plan to the Applicant (RTW Arrangement 1). 18 No response was received from the Applicant in relation to the RTW Arrangement 1.19

[34] On 10 October 2016, the Respondent offered a revised return to work plan to the Applicant (RTW Arrangement 2). 20

[35] On 19 October 2016, the Applicant rejected both RTW Arrangements 1 and 2 on the basis that they were not suitable and were not in accordance with the Applicant’s medical advice. 21

[36] On 24 October 2016, the Respondent sent an email to the Applicant advising that the RTW Arrangements were in accordance with the medical advice provided by Dr Gopal and the independent medical examination report. The Applicant was also reminded of his obligations to participate in return to work planning. The Applicant responded with an explanation as to why he felt the RTW Arrangements 1 and 2 failed to comply with his medical advice. 22

[37] In early December 2016, the appointed organisational rehabilitation provider, Recovre, attempted to arrange a meeting with Dr Gopal in order to confirm the Applicant’s fitness to attend a mediation session with the Respondent. The Applicant refused to allow Recovre’s representative, Ms Erin Templeton, to meet with his doctors. 23

[38] On 20 December 2016, a mediation session was facilitated by an independent mediator, Ms Nicole Cullen. The Applicant attended this session with Mr Gilchrist and Mr McLean. The mediation was unsuccessful. 24 A further mediation was proposed to occur in February 2017 but did not eventuate.25

[39] On 20 and 22 December 2016, in the wake of the unsuccessful mediation, the Applicant sent several emails to the Respondent complaining about the poor condition of the Respondent’s ovals. Mr McLean, in his response, encouraged the Applicant to focus on his health and recovery rather than the condition of the Respondent’s ovals. 26

[40] On 12 January 2017, Ms Griffin wrote to the Applicant in relation to his expired certificate of capacity. Ms Griffin advised the Applicant that a further mediation planned for February 2017 had been put on hold as it was unclear to the Respondent what benefit it would provide. 27

[41] On 25 January 2017, the Applicant underwent a further independent medical examination by psychiatrist, Dr Natalie Krapivensky, at the request of Gallagher Bassett. 28 Dr Krapivensky assessed the Applicant as being fully fit for pre-injury duties and hours as soon as “successful mitigation” in the workplace had occurred. This was confirmed in a certificate of capacity completed by Dr Gopal dated 8 February 2017.29

[42] On 10 February 2017, Ms Griffin wrote to the Applicant in relation to his certificate of capacity dated 8 February 2017 and advised that the intention of the Respondent and Gallagher Bassett was to seek clarification from Dr Krapivensky regarding what further “mitigation” was required. Ms Griffin advised the Applicant that once clarification had been obtained she would again contact the Applicant to arrange a meeting to discuss a return to work. 30

[43] On 27 February 2017, the Applicant supplied a further certificate of capacity from Dr Gopal that indicated the Applicant “was unfit for work until successful mitigation has taken place in the workplace”. 31

[44] On 27 February 2017, Ms Griffin sent an email to the Applicant requesting that he attend a meeting with Mr McLean and Ms Templeton on 2 March 2017 in order to discuss his return to work with the purpose of drafting a new return to work arrangement. 32 The Applicant replied to the email the same day refusing to attend the meeting until his complaints of bullying and intimidation had been addressed. The Applicant stated that he would not be well enough to participate in a face to face meeting or a telephone call. In this email, the Applicant made further allegations of bullying and intimidation.33

[45] On 1 March 2017, Mr McLean sent the Applicant a letter asking him to provide details of his allegations set out in his email dated 27 February 2017. The Applicant was again reminded of his legal obligation to participate in return to work planning and was directed to contact Ms Griffin to arrange a return to work planning meeting within fourteen days. The Applicant did not respond to this letter or provide the additional details regarding his bullying allegations as requested by the Respondent. 34

[46] During the period of 10 February 2017 to 26 February 2017, the Applicant failed to provide the Respondent with a Certificate of Capacity covering that period. As a consequence, on 5 March 2017, Gallagher Bassett wrote to the Applicant advising that his weekly payments of workers compensation for that period had not been made. 35

[47] In early March 2017, as part of Gallagher Bassett’s workers compensation case management, Recovre contacted the Applicant to request that he participate in a Transferable Skills Analysis (TSA). This request arose from the independent medical examination report 36 provided by Dr Krapivensky, in which it stated that the Applicant had the capacity to undertake pre-injury employment at an alternate worksite. Recovre variously requested that the Applicant attend TSA sessions on initially 8 March 2017, then 15 March 2017 and 22 March 2017. The Applicant failed to attend each of the three TSA sessions that were scheduled.37

[48] On 5 March 2017, the Applicant wrote to the Respondent advising that he was “unavailable for any meetings in the near future”. 38TheApplicant by this point was also refusing to speak directly with Ms Templeton of Recovre and was only prepared to correspond with her by email.39 The Applicant’s position of not making himself available for meetings with the Respondent or its agents was not supported by medical certificates or medical reports furnished to the Respondent.

[49] On 30 March 2017, Gallagher Bassett wrote to the Respondent regarding a warning it had issued to the Applicant about not participating and co-operating in an assessment of his capacity to return to work, his rehabilitation process and future employment prospects. Gallagher Bassett warned that the Applicant’s weekly payments would be suspended if he failed to meet his return to work obligations. 40

[50] On 1 April 2017, the Applicant sent a “group message” email to the Respondent, Gallagher Basset and Recovre detailing his various complaints and concerns regarding the status of his return to work. He raised a number of issues including: further workplace mediation being required; suspension of his weekly payments; the need for his original bullying complaints to be properly addressed; unprofessional behaviour of various parties; his objection to undertaking a TSA; and further allegations regarding the bullying conduct towards him by staff in the Respondent’s Parks and Gardens unit. 41

[51] On 17 March, 24 March, 31 March and 4 April 2017, the Respondent sent emails to the Applicant requesting and then directing that he return the Respondent owned mobile telephone and keys in his possession. The Applicant was also reminded in the correspondence of 4 April 2017 of his obligations regarding participating in return to work planning. The Applicant failed to comply with the Respondent’s requests and directions regarding the return of the mobile phone and keys. 42

[52] Between 3 April and 9 April 2017, the Applicant sent emails to the Respondent in which he made allegations about the poor maintenance of the Respondent’s ovals and also made allegations regarding behaviour of particular employees of the Respondent. 43

[53] On 6 April 2017, the Respondent received reports of two incidents on that day involving the Applicant at the Romsey Community Park, which is owned by the Respondent. One incident involved an allegation that the Applicant was driving his car in an erratic manner at the Romsey Main Oval. 44 The second incident involved an allegation that the Applicant had approached parents watching a children’s cricket match on the Romsey Oval No 2 raising health and safety concerns over golf being played on the field by children at the same time as a junior cricket match was underway. The Applicant was alleged to have identified himself as an employee of the Respondent and verbally abused members of the public and threatened to shut down the oval.45

[54] On 6 and 7 April 2017, the Respondent received formal written complaints from members of the public in relation to the incident involving the Applicant at Romsey Oval No 2 on 6 April 2017. 46

[55] On 11 April 2017, Mr McLean replied to the Applicant’s various emails between 3 and 9 April 2017. The Applicant was again requested to provide specific evidence in relation to his various allegations. The Applicant was also warned in relation to his obligations under the “organisations’ policies and procedures including the Staff Code of Conduct”. The Applicant failed to respond to the request to furnish additional specific evidence of his allegations. 47

[56] On 12 April 2017, the Applicant wrote to the Respondent and Gallagher Bassett advising that he had decided to replace the appointed occupational rehabilitation provider Recovre with an alternate provider, IPAR. 48

[57] On 20 April 2017, Gallagher Bassett wrote to the Respondent confirming its position in respect to the Applicant’s ongoing entitlement to weekly workers compensation payments. The Applicant’s payments were suspended for a period of twenty eight days from 26 April 2017. The correspondence detailed the Applicant’s failure to attend TSAs that had been scheduled for 8 March, 15 March, 31 March and 19 April 2017. 49

[58] On 26 April 2017, Mr McLean sent the Applicant a letter requiring that he attend a meeting on 3 May 2017 with himself and the Coordinator Human Resources, Ms Elaine Watson. The purpose of the meeting was to discuss a number of issues in relation to the Applicant’s conduct. He was notified of his right to be accompanied by a support person. 50

[59] On 26 April 2017, the Applicant replied to the Respondent’s correspondence of that day. The Applicant maintained his position that the Respondent had failed to properly investigate his original bullying complaints and on that basis he was not prepared to meet with the Respondent. 51

[60] On 26 April 2017, the Respondent then replied to the Applicant’s stated refusal to attend the scheduled 3 May 2017 meeting by warning the Applicant that he had been issued a lawful direction to attend the meeting. 52

[61] On 28 April 2017, the Respondent sent further correspondence to the Applicant reminding him of the 3 May 2017 meeting and directing that he return the Respondent owned mobile telephone and keys by 3 May 2017. 53

[62] On 2 May 2017 at 10.38 pm, the Applicant sent an email to the Respondent advising that he would be unable to attend the meeting on 3 May 2017 because of two prior medical appointments. 54. The Applicant did not attend the scheduled 3 May 2017 meeting.

[63] On 3 May 2017, the Respondent sent the Applicant a letter attaching a list of questions regarding allegations of the Applicant’s conduct on which his responses were sought. The Respondent also required the Applicant to provide evidence by way of medical certificates to support his failure to attend the 3 May 2017 meeting and was again directed to return the mobile phone to the Respondent. 55 The key issues on which the Respondent sought a response from the Applicant were:

● His failure to return the Respondent owned mobile phone as directed;
● His failure to respond to the Respondent requests for further details on a report he had made regarding Romsey Oval;
● Alleged erratic driving at Romsey Main Oval on 6 April 2017; and
● Alleged misconduct at Romsey Oval No 2 on 6 April 2017.

[64] On May 5 2017, the Applicant forwarded a certificate obtained from the Design Dental Group to the Respondent which indicated that he had an appointment on 3 May 2017. The certificate did not indicate the time of the appointment. 56

[65] On 5 May 2017, the Applicant forwarded a response to the Respondent’s letter of 3 May 2017. The Applicant acknowledged that he had been present at Romsey Oval on 6 April 2017 but denied the allegations of erratic driving and misconduct. The Applicant explained that his failure to attend the 3 May 2017 meeting was due to medical procedures. The Applicant also confirmed that he had returned the mobile phone to the Gisborne office of the Respondent on 5 May 2017. 57

[66] On 11 May 2017, the Respondent sent the Applicant a letter advising him of their findings following consideration of his responses to the conduct allegations. The Respondent provided the Applicant with an opportunity to either respond in writing by close of business 17 May 2017 or attend a meeting with the Respondent on 18 May 2017. 58

[67] On 12 May 2017, the Respondent received a written response from the Applicant addressing the Respondent’s investigation findings. The Applicant rejected the Respondent’s investigation findings of misconduct on 6 April 2017 at Romsey Oval and also claimed his unwillingness to attend meetings was due to his medical condition. The Applicant also maintained that his original bullying complaints had not been resolved. 59

[68] On 18 May 2017, the Respondent wrote to the Applicant advising him of his summary dismissal on the grounds of serious misconduct. The stated reasons for the termination were as follows:

“You were first asked to return a Council owned mobile on 17 March 2017. Subsequent requests were made on 24 March, 31 March, 4 April and 28 April 2017. On 3 May you were advised to return the mobile by no later than 5 May which you did.

Your interaction with members of the public at Romsey Oval No 2 on Thursday 6 April 2017, where you identified yourself as an employee of Council (though you were not undertaking authorized duties) and where you were abusive to members of the public and threatened to shut down the oval are detrimental to the reputation of Macedon Ranges Shire Council.

You have failed to attend numerous appointments as requested with the parties involved with your return to work process and Workcover claim.

All of the above are serious breaches of your responsibilities as an employee of Macedon Ranges Shire Council.

Your conduct and failure to follow lawful instructions constitutes serious misconduct warranting summary dismissal.” 60

Case for the Applicant

[69] The Applicant provided closing written submissions and submissions in reply that supplemented an outline of submission and evidentiary materials filed prior to the Hearing.

[70] It was submitted by the Applicant that his termination on the grounds of serious misconduct was harsh, unjust and unreasonable, was consequently unfair and therefore should be overturned. The Applicant rejected the reasons provided for his termination, those being that he had engaged in serious misconduct; had failed to follow lawful instructions; had failed to attend numerous appointments and meetings; and had engaged in misconduct at Romsey Oval on 6 April 2017.

[71] It was submitted by the Applicant that he had been subject to bullying conduct by a number of the Respondent’s staff including Mr Gilchrist, Mr McLean and Ms Griffin over an extended period. The Applicant maintained that his original complaints of bullying and intimidation notified to the Respondent on 22 July 2016 were never properly investigated. This view was maintained by the Applicant notwithstanding advice provided to him by the Respondent on 15 August 2016 that his allegations had been investigated and found not to have been substantiated.

[72] The Applicant submitted that the Respondent failed to treat his original bullying complaints as a “protected disclosure” under the Protected Disclosure Act 2012 (Victoria) (PDA).

[73] The Applicant further submitted that the failure of the Respondent to properly investigate and resolve his bullying complaints created a barrier to his return to the workplace. The Applicant submitted that the issue of his unresolved bullying complaints and the barrier this created was supported by his medical reports.

[74] The Applicant submitted that his bullying complaint arose out of what he believed was a campaign by Mr Gilchrist to downgrade the Applicant’s role, remove more skilled duties and responsibilities from him and transfer those duties to another employee, Mr Whiteside, who the Applicant alleged was a friend of Mr Gilchrist.

[75] The Applicant highlighted the fact that it took Mr Gilchrist almost two years to address the Applicant’s August 2014 request for a review of his position description and when a draft position description was produced by Mr Gilchrist in May 2016 it represented a downgrade of the Applicant’s original position description. The fact that the position description may have been ultimately restored to substantially the same form as that of his original position description when he commenced employment with the Respondent, failed to address the balance of the Applicant’s original bullying complaints.

[76] The Applicant’s criticism of Mr Gilchrist and the Respondent extended more generally to decision making regarding oval construction/maintenance practices, equipment purchasing decisions, health and safety issues, and contractor usage. Significant material was presented by the Applicant in support of these submissions.

[77] The Applicant submitted that he had always been prepared to participate in return to work activities but that the return work plans (RTW Arrangements 1 & 2) offered to him by the Respondent failed to address key medical recommendations concerning the need for “mediation” and “mitigation” to occur. The Applicant further submitted that after initial mediation occurred on 20 December 2016 a further mediation was tentatively scheduled for February 2017 but did not proceed then or at a later time because of a decision of the Respondent. The Applicant submitted that he had continued to press the Respondent for further mediation as a means to remove the barrier to his return to the workplace.

[78] The Applicant submitted that his unwillingness to attend TSA meetings was explained by his focus on returning to his pre-injury role with the Respondent rather than pursuing employment opportunities with alternate employers. The Applicant also submitted that participation more generally in meetings with both the Respondent and its agents was not possible due to his medical condition and that his non-attendance was based on medical advice. The Applicant submitted that the persistent efforts of the Respondent and its agents to arrange meetings with him constituted bullying conduct.

[79] The Applicant submitted that the Respondent’s demands for the return of the Applicant’s work mobile phone during March and April 2017 was further evidence of bullying conduct by the Respondent. The Applicant rejected any inference that he was stealing the phone and submitted that he had merely been retaining it as he had been expecting to return to work. The Applicant submitted that in any case he had returned the phone on 5 May 2017 as requested.

[80] The Applicant submitted that the allegations regarding his conduct at Romsey Oval on 6 April 2016 were baseless. They were, the Applicant submitted, based on false complaints furnished by Mr Whiteside in relation to the Romsey Main Oval incident and from acquaintances of Mr Gilchrist in relation to the Romsey Oval No 2 incident.

[81] In relation to the Romsey Oval No 2 incident, the Applicant submitted that when he arrived at the oval on 6 April 2017 he noticed that concurrent activities were underway, that of a cricket match in the middle of the oval involving children and there were also children on the oval hitting golf balls. The Applicant submitted that as a concerned member of the community, he had approached adults in the area and had raised his concerns regarding the health and safety implications of the concurrent cricket and golf activities. When confronted with aggressive reactions from parents present, the Applicant submitted that he immediately left the oval precinct in his motor vehicle.

[82] In summary, the Applicant submitted that his termination was unfair and that the appropriate remedy was that of reinstatement.

Case for the Respondent

[83] Mr McDougall, who appeared for the Respondent, provided closing written submissions to supplement the Respondent’s outline of submissions and other evidentiary materials.

[84] It was submitted that the Applicant was terminated for a valid reason in that: he had refused to obey directions to return a work mobile phone; had abused members of the public participating in sporting activities at Romsey Oval on 6 April 2017; had threatened to shut down those sporting activities while purporting to be representing the Respondent; had failed to attend as directed numerous meetings arranged to assist his return to work; and had failed to attend without proper reason a meeting on 3 May 2017 that was scheduled to discuss his conduct.

[85] In relation to the Applicant’s refusal to return the Respondent owned mobile phone, it was submitted that there was a repeated refusal of the Applicant to follow a lawful direction. While the phone was ultimately returned by the Applicant on 5 May 2017 following the 3 May 2017 direction, it was submitted that there was a failure to comply with multiple requests made on 17 March, 24 March, 31 March and 4 April 2017. This in the Respondent’s submission constituted deliberate disobedience of a lawful instruction.

[86] It was also submitted that the Applicant had refused multiple requests and directions to attend various meetings, both with the Respondent and also to meetings arranged by the Respondent’s workers compensation claim manager, Gallagher Bassett, and the approved occupational rehabilitation provider, Recovre. The various meetings sought were in relation to planning and implementing effective return to work arrangements for the Applicant. It was submitted that contrary to the Applicant’s contention, his unwillingness and refusal to attend meetings was not supported by medical advice made available to the Respondent.

[87] In relation to the 3 May 2017 meeting, the Respondent submitted that the Applicant had been directed to attend a meeting on that day for the purpose of discussing a number of allegations regarding the Applicant’s conduct. The direction to attend was provided to the Applicant in correspondence on three separate occasions over the period 26 and 28 April 2017.

[88] It was submitted that the Applicant’s refusal on the grounds of two claimed medical appointments on 3 May 2017 was not credible as there was no evidence that confirmed the existence of pre-arranged appointments such that would have prevented the Applicant’s attendance at the scheduled meeting. It was submitted that the Applicant never intended to comply with the Respondent’s direction to attend the scheduled 3 May 2017 meeting.

[89] It was further submitted that the Applicant attended the Romsey Oval No 2 on 6 April 2017 while a junior cricket match was underway on the oval and took exception to the fact that some children were chipping golf balls on another part of the oval. It was submitted that the Applicant confronted the parents that were present, asserted there was an OH&S risk arising from these concurrent sporting activities, identified himself as an employee of the Respondent, demanded that the golf activity stop and threatened to shut down the oval. It was further submitted that the Applicant was aggressive towards the parents and had used foul and abusive language prior to leaving the oval precinct.

[90] The behaviour of the Applicant at Romsey Oval No 2 on 6 April 2017 was, according to the Respondent, detrimental to its reputation and constituted misconduct.

[91] It was submitted that the conduct of the Applicant was subject to a proper investigation during which the Applicant was afforded an opportunity to respond both to the initial allegations raised in the correspondence on 3 May 2017 and then to the investigation findings provided to the Applicant on 11 May 2017.

[92] The Applicant was, in the Respondent’s submission, provided with clear reasons for the termination of his employment by the Respondent. This was evidenced by the letter sent by the Respondent to the Applicant on 11 May 2017 that detailed the investigation findings and the further letter sent to him on 18 May 2017 confirming his termination of employment.

[93] It was submitted that the Applicant was invited to have a support person present for all meetings and discussions relating to his conduct and the disciplinary process.

[94] In response to the Applicants submissions the Respondent rejected a series of the Applicant’s claims, specifically that:

● it had ignored the Applicant’s medical advice;
● Mr Gilchrist had sought to remove duties from the Applicant;
● Mr Gilchrist had bullied and “hounded” the Applicant;
● the Applicant’s initial bullying complaint was a protected disclosure under the Protected Disclosure Act 2012 (Victoria) (PDA);
● genuine attempts of the Respondent to achieve a return to work ceased in October 2016; and
● the Applicant’s initial bullying complaints had never been resolved.

[95] In summary the Respondent submitted that the Applicant’s dismissal was not harsh, unjust or unreasonable but that if the Commission were to determine the contrary then reinstatement as a remedy would not be appropriate. Further, any compensation if awarded would need to be significantly discounted through the application of the Sprigg 61principles, having particular regard to the Applicant’s misconduct over a long period of time in refusing to follow lawful directions.

Protection from Unfair Dismissal

[96] An order for reinstatement or compensation may only be issued where I am satisfied that the Applicant was protected from unfair dismissal at the time of the dismissal.

[97] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

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

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

(b) one or more of the following apply:

(i) a modern award covers the person;

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

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

Note: High income threshold indexed to $142,000 from 1 July 2017.

[98] There is no dispute, and I am satisfied, that the Applicant has completed the minimum employment period, and is covered by a modern award. Consequently, I am satisfied the Applicant was protected from unfair dismissal.

[99] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.

Was the dismissal unfair?

[100] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“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

(d) the dismissal was not a case of genuine redundancy.

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

[101] In this case, there was no dispute and I am satisfied that the matter was confined to a determination of that 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:

“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.”

[102] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 62 by McHugh and Gummow JJ as follows:

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

[103] I am under a duty to consider each of these criteria in reaching my conclusion. 63

[104] I will now consider each of the criteria at s.387 of the Act separately.

Was there a valid reason - s.387(a)

[105] I turn first to consider whether there was a valid reason related to the person’s capacity or conduct.

[106] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 64 The reasons should be “sound, defensible and well founded”65 and should not be “capricious, fanciful, spiteful or prejudiced”.66

[107] Having been dismissed for misconduct, the Commission must first satisfy itself that, on the balance of probabilities that the alleged misconduct occurred. 67 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.68

[108] The Respondent dismissed the Applicant for serious misconduct confirmed in correspondence dated 18 May 2017 as summarised at paragraph [68] above. In order to assess whether there was a valid reason it is necessary to consider each of the reasons for dismissal relied on by the Respondent.

Return of mobile telephone

[109] The evidence of both Mr McLean and Ms Griffin was very clear as to the multiple requests made in writing for the return of the Respondent owned mobile telephone that was in the Applicant’s possession. The first request was made on 17 March 2017, followed by requests on 24 March 2017, 31 March 2017 and 4 April. 69 These requests were not complied with.

[110] Ms Griffin in her evidence rejected the proposition put to her during cross-examination that the requirement that the Applicant return the mobile telephone constituted further bullying. 70

[111] The evidence of the Applicant revealed that he regarded possession of the telephone as necessary for the purpose of assisting his return to work. In correspondence to the Respondent and others on 1 April 2017, the Applicant explained his reasons for retaining the telephone where he stated:

“..and the work phone is required for RTW consultations once the barrier has been overcome, the phone is also used for union assistance, conciliation assistance, medical appointments, mediation and other work related consultations to return me to my job” 71

[112] In further correspondence to the Respondent on 30 April 2017, the Applicant again made clear that he was not willing to return the mobile telephone until such time as he returned to the workplace. He stated in that correspondence:

“I have made it clear, I will not steal your phone, I will return it with me, when I return to work. Do not accuse me of attempting to steal your phone, as I have no intention of doing so.” 72

[113] During cross-examination, the Applicant conceded that he had received a number of requests from the Respondent to return the telephone. 73 He acknowledged that one of the requests from Ms Griffin included an offer by her to meet him to pick up the telephone.74 The Applicant maintained his position during cross-examination that he was entitled to retain the telephone pending his return to work in spite of the Respondent’s requests and that he regarded requests for the telephone’s return as further bullying.75

[114] The telephone was ultimately returned by the Applicant on 5 May 2017 following a fifth direction issued by Mr McLean on 3 May 2017.

[115] I am satisfied that the Respondent issued multiple requests and directions to the Applicant to return the Respondent owned mobile telephone over the period 17 March 2017 to 3 May 2017. I am not satisfied on the evidence that the requests were made in an unreasonable or capricious manner or that the requests were bullying in their character. Those requests and directions were not complied with by the Applicant until 5 May 2017.

[116] No matter how aggrieved the Applicant may have felt regarding the status of his return to work and the other complaints he had regarding his employer, that did not entitle him to refuse to comply with a reasonable and lawful instruction. There was no ambiguity as to what the Respondent required him to do, that is, return the Respondent’s property as directed. He failed to do so for several weeks.

[117] I am satisfied that the Applicant’s repeated failure to carry out a reasonable and lawful instruction of returning the Respondent owned mobile phone constituted misconduct.

Failure to attend meetings and appointments as directed

[118] I now turn to consider whether the Applicant had failed to attend meetings and appointments that he was directed by the Respondent to attend.

[119] Evidence of the Respondent indicated that the Applicant had failed to attend various meetings he had been required to attend including the following:

1. On 27 February 2017, Ms Griffin wrote to the Applicant requesting that he attend a meeting on 2 March 2017 with the Respondent and Ms Templeton of Recovre to discuss his return to work. 76

2. On 1 March 2017, Mr McLean wrote to the Applicant directing him to contact Ms Griffin to arrange a meeting within 14 days, the purpose of which was to discuss his return to work arrangements. 77

3. On 26 April 2017, Mr McLean wrote to the Applicant directing him to attend a meeting with the Respondent on 3 May 2017, the purpose of which was to discuss allegations of misconduct of the Applicant. 78

4. On 26 April and 28 April 2017, Mr McLean sent follow-up correspondence to the Applicant regarding the previous direction given to him to attend the 3 May 2017 meeting.

5. On 27 April 2017, Ms Griffin wrote to the Applicant notifying him of a meeting on 1 May 2017 with the Respondent, the purpose of which was to discuss his return to work plan. 79

6. Multiple TSA meetings arranged by the approved occupational rehabilitation provider were scheduled but not attended by the Applicant, including 8 March, 15 March, 22 March, 19 April and 17 May 2017. 80

[120] In response to the Respondent’s correspondence on 27 February 2017 requesting that the Applicant attend a meeting on 2 March 2017, the Applicant declined to attend the requested meeting arguing that such attendance would not resolve the bullying and that he was unwilling to attend until the unprofessional behaviour had ceased. In his correspondence he stated:

“I’m in no condition to sit down for a face to face chat, or a phone call at the moment, This would be of no benefit to my health or to resolving the bullying. Intimidating or unprofessional behaviour of the Parks Coordinator. You will need to work with the union to resolve the situation, as the problem remains, and will continue. Once the unprofessional behaviour is adequately resolved then I will be in a better place to sit down with you. Until then I will work on my health, and leave you to work on providing a safe place for me to work.” 81

[121] Further, on 28 April 2017, in response to Ms Griffin’s meeting request of 27 April 2017, the Applicant continued to decline to participate in any meetings with the Respondent regarding return to work planning where he stated:

“I will be happy to sit down with you and chat as soon as the workplace has been made safe and the appeal to my initial complaint has been finalized with all the facts taken into account, and with the assistance of the union, And I have medical clearance to attend face to face meetings.” 82

[122] In reply to the correspondence from Mr McLean on 26 April 2017 regarding the scheduled misconduct investigation meeting on 3 May 2017, the Applicant initially refused to attend as evidenced by his reply dated 26 April 2017 where he stated:

“The only meeting I will attend is for meetings returning me to my pre-injury duties, once the bullying issue has been resolved, it has not been resolved and it is still ongoing.” 83

[123] The Applicant’s evidence was that he was unable to attend face to face meetings on the basis of his medical condition and that such non-attendance was consistent with his medical advice.

[124] The Applicant also stated that he was unwilling to attend any meetings until such time as his original bullying complaints had been resolved and that mediation had been completed. His evidence was that his original bullying complaint was based on a number of issues that arose over a two year period. However, during cross examination the Applicant conceded that the origin of his bullying complaint arose from his raising concerns over his position description with Mr Gilchrist in August 2014. 84

[125] Mr Gilchrist in his evidence acknowledged that the Applicant had raised a concern regarding his position description in August 2014 and conceded that the resolution of the position description issue had been a “lengthy process”. 85

[126] The evidence revealed that the Applicant was dissatisfied with Mr Gilchrist’s handling of the review of his position description and along with other grievances he held, provoked him to make a formal complaint of bullying and intimidation which was lodged on 22 July 2016.

[127] Mr McLean gave evidence that the primary focus of the Applicant’s original bullying complaint was that of his position description. 86 He acknowledged that the time taken by the Respondent to resolve the Applicant’s request for a review of his position description was unacceptable and that the Applicant’s concerns over the delays in completing that review were justified.

[128] Mr Mclean gave further evidence that his role in addressing the Applicant’s bullying complaints involved investigating the particular complaints made by the Applicant and also finalising the Applicant’s position description.

[129] The Applicant was interviewed by the Respondent on 4 August 2016 in relation to his complaints and the outcome of the investigation was confirmed in writing to him on 15 August 2016. His allegations of bullying and intimidation were found not to be substantiated.

[130] A revised position description was accepted and signed by the Applicant on 1 September 2016. Mr McLean contradicted the Applicant’s evidence that the Applicant was pressured to sign the new position description. 87

[131] Notwithstanding the apparent resolution of the position description and acceptance of it by the Applicant, he remained dissatisfied with the outcome of the investigation conducted by Mr McLean and maintained his view that there were other issues raised which the Respondent had not addressed or resolved. This dissatisfaction with the investigation outcome contributed to the Applicant’s sustained refusal to engage in meetings with the Respondent and its workers compensation agents.

[132] The basis for the Applicant’s refusal to attend the 3 May 2017 meeting with the Respondent evolved from that of initially refusing to that of being unable to attend the meeting due to two medical appointments. 88 When pressed by the Respondent as to the reasons for his failure to attend the 3 May 2017 meeting, the Applicant supplied one certificate from the Design Dental Group indicating an appointment on 3 May 2017 but which failed to indicate the time of that appointment. 89

[133] The Applicant was unable to clarify the time of day of the dental appointment during cross examination. He also maintained during cross-examination that the request for the 3 May 2017 meeting was further harassment. 90

[134] A further justification for the Applicant’s failure to attend various meetings with the Respondent and its agents was that of medical advice according to the Applicant’s evidence. The Applicant, when pressed during cross examination as to what medical advice had been furnished to the Respondent that supported this position, was unable to identify or subsequently provide such medical advice when given an opportunity to do so by the Commission. 91

[135] The Applicant, in justifying his refusal to meet with the Respondent, also maintained that he had asked the Respondent to deal with the union on his behalf in relation to return to work issues. The evidence of the Respondent on this point was that efforts were made in October 2016 to make contact with Mr Brendan Parkinson of the ASU as requested by the Applicant, however, Mr Parkinson’s response was that the Applicant needed to discuss his return to work arrangements directly with the Respondent. 92

[136] It is clear from the evidence that the Applicant had made a conscious decision to avoid direct meetings with the Respondent and its agents in the wake of failed mediation on 20 December 2016. This unwillingness to engage covered return to work planning meetings, TSA meetings and disciplinary process meetings. This refusal to meet arose from the Applicant’s belief that his original bullying complaints had not been properly investigated or resolved and that his medical condition was such that he was not in a fit state to meet with the Respondent or its agents.

[137] The Applicant may not have agreed with the outcome of the investigation into his bullying allegations which was communicated to him on 15 August 2016 and he may also have been frustrated that further formal mediation after the unsuccessful 20 December 2016 session did not proceed due to a decision of the Respondent. That did not however give the Applicant the right to simply refuse to engage with the Respondent other than on his own terms.

[138] The Applicant, as part of his workers compensation claim, had particular obligations to participate in processes directed to support his return to work. This included both direct meetings with the Respondent, its occupational rehabilitation provider and in TSAs arranged to assess the transferability of his skills to other employers. These were not obligations that were open to him to pick and choose as to which, if any, he participated in.

[139] As to the Applicant’s contention that the attempts by the Respondent and its agents to engage and meet with him constituted further harassment, there was no credible evidence presented that supported that argument. To the contrary, the evidence indicated that the various correspondence from both the Respondent and its agents to the Applicant was professional and focussed on assisting return to work efforts.

[140] In refusing to attend meetings and appointments, the Applicant also relied on his claimed medical advice. Medical reports furnished to the Respondent focussed on his return to work capacity and said nothing on his claimed inability to participate in meetings with the Respondent or its agents regarding return to work planning arrangements. No evidence was provided to the Commission by the Applicant that supported his claims that his medical advice was ignored nor was any evidence provided of medical reports or certificates having been provided to the Respondent that justified the Applicant’s refusal to meet with it or its agents.

[141] There was no doubt the Applicant was uncomfortable and anxious about meeting with the Respondent given the status of his return to work and his belief as to his unresolved bullying complaints. However, in the circumstances the Applicant bore an onus of satisfying the Respondent that he was not fit to participate in meetings due to his medical condition. He failed to do so and persisted in refusing to meet or participate in requested meetings other than on his terms. This was an unreasonable course of action and inconsistent with his employment obligations.

[142] I am satisfied on the evidence that the Applicant’s sustained refusal to engage with or meet the Respondent or its agents in relation to return to work, TSA and disciplinary meetings was not supported by medical advice made available to the Respondent.

[143] The Applicant clearly held concerns regarding the original investigation of his bullying complaints and also held a strong belief that some further mediation was required as a pre-requisite to his return to work. However, it was not open to him to simply refuse to meet or engage with the Respondent over return to work processes or in respect of disciplinary matters. In these circumstances I am satisfied that the Applicant’s conduct was deliberate and contrary to his employment obligations and therefore constituted misconduct.

Romsey Oval incidents 6 April 2017

[144] I now turn to consider the Applicant’s conduct at Romsey Oval on 6 April 2017.

[145] The evidence of the Respondent was that Mr Gilchrist was contacted on his work telephone at approximately 3.30pm on 6 April 2017 by a parent of a child involved in a junior Cricket Victoria game that was being played at the Romsey Oval No 2 that afternoon. The nature of the initial report was that an employee of the Respondent had just been to the ground and had verbally abused parents with foul language prior to departing. 93

[146] Mr Gilchrist’s evidence was that after receiving the phone call he drove to the oval. On arrival he saw that there was a junior cricket match underway in the middle of the oval with a boundary marked out at approximately fifty (50) metres. He observed that there were also a number of children chipping golf balls and playing an informal game of hockey on the oval outside the 50 metres marked area of the cricket game. Mr Gilchrist’s evidence was that the age of the children involved and distance from the cricket match was such that the risk from the conduct of the concurrent activities on the oval was small. 94

[147] Mr Gilchrist gave further evidence that on arrival at the oval, he was greeted by “some angry parents” who were known to him through his community activities. They reported to Mr Gilchrist that a man had driven up, got out of his car and began to “swear and carry on” about OH&S and that golf was not allowed on the oval. Based on the descriptions given by the parents, Mr Gilchrist guessed the man to have been the Applicant. Mr Gilchrist advised the parents present that any formal complaints needed to be made in writing to the Respondent. 95

[148] Mr Gilchrist formally advised his immediate supervisor, Mr Shane Power, of the reports of the Applicant’s behaviour at Romsey Oval No 2 by way of an email on 7 May 2017. 96

[149] Three written complaints were received by the Respondent from members of the public who were present at Romsey Oval No 2 on 6 and 7 April 2017. 97

[150] Under cross-examination Mr Gilchrist acknowledged that he was not at the oval at the time the Applicant was present on 6 April 2017 and therefore could not give direct evidence of what was actually said by the Applicant. He rejected the proposition that the individuals who made the formal complaints were friends of his. He also gave evidence that he did not see the formal complaints that were subsequently lodged with the Respondent by the three members of the public regarding the Applicant’s behaviour. 98

[151] Mr Gilchrist also resisted the proposition put to him during cross-examination that golf was prohibited on all of the Respondent’s ovals and also rejected that the concurrent sporting activities that were occurring on the oval on the afternoon of 6 April 2017 presented an OH&S risk. 99

[152] The Applicant, in his evidence, denied the Respondent’s version of events of 6 April 2017. In evidence was the Applicants correspondence to the Respondent dated 5 May and 12 May 2017 in which he replied to the Romsey Oval No 2 allegations and investigation findings.

[153] The Applicant’s evidence was that he arrived at the oval and noticed that golf balls were being hit on the oval by children at the same time that a junior cricket match was underway. Concerned at the OH&S risks, the Applicant submitted that he asked on arrival who was in charge and during the subsequent conversation identified himself as an employee of the Respondent. He advised those present that golf was prohibited and raised his safety concerns. The Applicant’s evidence was that he was confronted with aggression by the parents and as a consequence decided to leave. He claimed to have heard abusive language and shortly after leaving the oval was physically sick. 100

[154] Under cross-examination, the Applicant gave evidence that cricket was being played over the entire area of the oval and that, contrary to Mr Gilchrist’s evidence; there were golfers amongst the fielders on the ground. The Applicant gave further evidence that he approached a man who stated he was in charge and advised him that golf and cricket were not allowed and said there were OH&S hazards. The Applicant acknowledged that he identified himself as an employee of the Respondent but denied that he had threatened to shut down the game and rejected the proposition that he had become angry, abusive or had sworn at members of the public. The Applicant under cross-examination also claimed that all three of the letters of complaint were lies sourced from friends of Mr Gilchrist. 101

[155] The Applicant, during cross-examination, acknowledged a degree of emotion in his behaviour on 6 April 2017. In response to a question about the concurrent cricket and golf activities, the Applicant submitted that he had “jumped up and down” about the issue. 102 Although denying that he that he became aggressive or abusive during the exchanges, he did concede that he may have been highly emotional when he left.103

[156] The Applicant and Mr Gilchrist’s evidence differed significantly on the description of the playing field marked out for cricket and on the physical separation of play between the cricket and golf. I find it difficult to accept that a supervised Cricket Victoria event, albeit a junior game, could or would have been allowed to continue with golf being played simultaneously amongst the fielders engaged in the cricket match. I found Mr Gilchrist’s evidence on the dimensions of the cricket playing area, the separation of the cricket and golf activities and the consequent low risks assessed by him as more credible then that of the Applicant.

[157] On the basis of my preferring Mr Gilchrist’s evidence above, I am satisfied that on the afternoon of 6 April 2017, a junior cricket match was being conducted on a marked area of approximately 50 metres in diameter in the middle of the Romsey Oval No 2 and that other children under the supervision of parents were playing hockey and also chipping golf balls outside of the marked out area within which cricket was being played.

[158] I am satisfied that the Applicant on arrival at approximately 3.30pm, sought to establish who was in charge and then proceeded to raise concerns over the concurrent golf and cricket activities underway. In doing so the Applicant identified himself as an employee of the Respondent. These points were not contested.

[159] I am further satisfied that at least one parent present at Romsey Oval on 6 April 2017 was sufficiently concerned about the Applicant’s behaviour that she called Mr Gilchrist and that on Mr Gilchrist’s arrival at the oval, a number of other parents spoke directly to him with their concerns about the Applicant’s behaviour.

[160] I am not satisfied on the evidence that the concerns and complaints raised by the members of the public were contrived or encouraged by Mr Gilchrist as was contended by the Applicant. The fact that a number of formal complaints were subsequently made to the Respondent supports a finding that the Applicant’s behaviour was more serious than he presented in evidence or conceded during cross-examination.

[161] The Applicant’s evidence was unconvincing and at odds with the weight of other evidence available. I am unable to make findings in relation to the specific language used by the Applicant in the absence of direct evidence of other parties present that day. However, such a finding as to the specific language used is unnecessary for the purpose of my findings as to the Applicant’s general conduct.

[162] I am satisfied that the Applicant represented himself as an employee of the Respondent and engaged in behaviour directed towards members of the public that included abusive language and threats to shut down the activities underway on the oval. These findings are based on my acceptance of Mr Gilchrist’s direct evidence of the parent reactions and the verbal reports made to him on his arrival at the oval; the Applicant’s own admissions as to his level of emotion; and the formal complaints subsequently lodged with the Respondent that were consistent with the version of events reported directly to Mr Gilchrist.

[163] I am satisfied that the Applicant’s conduct on 6 April 2017 was inappropriate, inconsistent with his employment obligations and constituted misconduct.

Consideration

[164] I am satisfied that the Applicant refused to follow lawful instructions to return company property, failed to attend multiple meetings and appointments that he was directed to attend and engaged in inappropriate behaviour in his dealings with members of the public at Romsey Oval No 2 on 6 April 2017.

[165] This behaviour of the Applicant constitutes serious misconduct and I am consequently satisfied that at the time of the Applicant’s dismissal the Respondent had a valid reason to terminate the Applicant based on his conduct.

Notification of the valid reason - s.387(b)

[166] The Applicant received correspondence from the Respondent on 3 May outlining a number of allegations regarding his conduct. On 11 May 2017, the Applicant received further correspondence that detailed the findings of the Respondent’s investigation of the Applicant’s conduct. The separate correspondence to the Applicant on 3 and 11 May 2017 made very clear to the Applicant the reasons for his termination.

[167] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 104 in explicit terms105 and in plain and clear terms.106 In Crozier v Palazzo Corporation Pty Ltd107 the Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 108

[168] I am satisfied that the Applicant was notified of the reason for his dismissal in plain and clear terms prior to the decision being made to terminate his employment.

Opportunity to respond to any reason related to capacity or conduct - s.387(c)

[169] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 109

[170] On 3 May 2017, the Applicant received a letter from the Respondent detailing allegations of the Applicant’s misconduct to which a response was requested by close of business on 5 May 2017. The Applicant responded on 5 May 2017.

[171] On 11 May 2017, the Applicant received a further letter from the Respondent that detailed the findings of the Respondent’s investigation of the Applicant’s conduct. The Applicant was afforded a further opportunity to respond and provide additional information by close of business 17 May 2017 or alternatively attend a meeting with the Respondent on 18 May 2017. The Applicant responded to this correspondence on 12 May 2017.

[172] I am satisfied that the Applicant was given an opportunity to respond to the reasons relied on by the Respondent for his dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[173] The Applicant was expressly advised of his right to be accompanied by a support person in meetings with the Respondent in correspondence to him from the Respondent dated 26 April, 28 April and 11 May 2017.

[174] I am satisfied that there was no unreasonable refusal by the Respondent to allow the Applicant to be accompanied by a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[175] The Applicant was not dismissed for performance shortcomings but for serious misconduct and so this factor is a neutral consideration in my decision.

Impact of the size of the Respondent on procedures followed - s.387(f)

[176] The Respondent’s F3 - Employer Response Form indicates that at the time of the Applicant’s dismissal it employed 656 employees. There is no evidence before the Commission that its size impacted on the procedures followed by the Respondent in dismissing the Applicant. This factor is therefore a neutral consideration in my decision.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[177] The evidence in this matter indicates that the Respondent had access to and did in fact utilise the services of dedicated human resources specialists employed by the Respondent. This factor is therefore a neutral consideration in my decision.

Other relevant matters - s.387(h)

[178] The Applicant raised some other matters which he submitted were relevant to the Commission’s consideration of his application. These matters, which I will deal with now, can be summarised as follows;

1. Failure of the Respondent to treat his original bullying complaints as a “protected disclosure” under Protected Disclosure Act 2012 (Victoria) (PDA).
2. The Respondent’s decision making and practices in respect of oval construction/maintenance, equipment purchasing, health and safety issues, and contractor usage.

Protected Disclosure

[179] The Applicant submitted that the Respondent failed to treat his original bullying complaints as a “protected disclosure” under the PDA. In making that submission, the Applicant asserted that he should have been treated as a “protected person” and should not have been subject to disciplinary action leading to his dismissal.

[180] A necessary element required to establish that the Applicant ought to have been subject to protection under the PDA was that of “improper conduct” which is defined in Section 4 of the PDA to mean “corrupt” or “specified conduct” which if proved would constitute a criminal offence or provide reasonable grounds for dismissing the person.

[181] The Applicant in his initial bullying complaints raised a number of matters. These were subsequently investigated by the Respondent and it was found that his claims of bullying were not substantiated. None of the original matters raised by the Applicant with the Respondent and recorded in Mr McLean’s contemporaneous notes of the 4 August 2016 meeting referred to any conduct that appeared to fall under the category of “improper” or “specified” conduct. 110

[182] The Applicant made various allegations regarding corrupt conduct by staff of the Respondent including Mr McLean, Ms Griffin and Mr Gilchrist during the course of the proceedings; however I am not satisfied that evidence relied on by the Applicant supported those allegations.

[183] I am not satisfied on the evidence that the Respondent wrongly failed to treat the Applicant as a “protected person” under the PDA.

Oval maintenance and other complaints

[184] The Applicant submitted extensive material in support of his submissions that the Respondent’s practices in oval construction and maintenance, equipment selection and purchase, procurement and OH&S were poor. The Applicant submitted that the poor decision making and practices were attributable to in part to Mr Gilchrist’s role with the Respondent. 111

[185] It is not necessary for me to consider the merit of the Applicant’s complaints and criticism of Respondent’s practices referred to above as I am not satisfied on the evidence that those issues raised by the Applicant are relevant to my consideration of the reasons for or processes followed in the Applicant’s dismissal.

Conclusion

[186] Having considered each of the matters specified in s.387 of the Act, I am satisfied that there was a valid reason for the dismissal of the Applicant and that were no other factors that would lead to a finding that the termination was otherwise unfair. I am consequently satisfied that the Applicant’s dismissal was not harsh, unjust or unreasonable and consequently he was not unfairly dismissed.

[187] The application is dismissed. An Order will be issued in conjunction with this decision to that effect.

DEPUTY PRESIDENT

Appearances:

Mr S Hawkey on his own behalf.

Mr J McDougall, of counsel, for the Respondent.

Hearing details:

2017.

Melbourne:

September 1.

September 6-7.

September 19.

Final written submissions:

Filed on 3 October 2017 for the Applicant.

Filed on 17 October 2017 for the Respondent.

Filed on 23 October 2017 for the Applicant in reply.

1 Exhibit R9, Statement of David McLean, dated 7 August 2017, at para 7 and attachment DM1.

2 Ibid at para 11.

3 Exhibit R9, Attachment DM1.

4 Exhibit R9 at para 12.

5 Transcript at PN873-876.

6 Exhibit A22, Position Description June 2015.

7 Exhibit A27, Minutes of Turf Meeting 12 July 2016 and transcript at PN 950-988.

8 Transcript at PN 1055-1078.

9 Exhibit R9, Attachment DM4.

10 Exhibit R9, Attachment DM6.

11 Exhibit R9, Attachment DM7.

12 Exhibit R11, Statement of Sandra Griffin, dated 7 August 2017, Attachment SG2.

13 Exhibit R11, Attachment SG3.

14 Exhibit R9, Attachment DM9.

15 Exhibit R11 at para 16.

16 Exhibit R11, Attachment SG5.

17 Exhibit R11 at Para 17 and attachment SG5.

18 Exhibit R11 at para 20.

19 Exhibit R11 at para 19.

20 Exhibit R11 at para 20.

21 Exhibit R11, Attachment SG8/9.

22 Exhibit R11, Attachment SG10.

23 Transcript at PN2824, PN2825 & PN2834.

24 Exhibit R9 at para 31.

25 Exhibit R18, email from Nicole Cullen to Sandra Griffin, dated 13 February 2017.

26 Exhibit R9, Attachment DM14.

27 Exhibit R4, email from Sandra Griffin, dated 12 January 2017.

28 Exhibit A36, Independent Medical Examination report by Dr Natalie Krapivensky, dated 30 January 2017.

29 Exhibit R5, Certificate of Capacity, dated 8 February 2017.

30 Exhibit R11, Attachment SG12.

31 Exhibit R6, Certificate of Capacity, dated 27 February 2017.

32 Exhibit R11, Attachment SG13.

33 Exhibit R11, Attachment SG14.

34 Exhibit R9, Attachment DM18.

35 Exhibit R9, Attachment DM19.

36 Exhibit A36.

37 Exhibit R11 at paras 33 & 34.

38 Exhibit R9, Attachment DM20.

39 Transcript at PN3374-3375

40 Exhibit R11, Attachment SG16.

41 Exhibit R11, Attachment SG24.

42 Exhibit R11, Attachments SG22, SG23, SG24 & SG25.

43 Exhibit R11, Attachments SG26, SG27 & SG29.

44 Exhibit R9, Attachments DM40 & DM41.

45 Exhibit R9at par a 55 and Attachment DM38.

46 Exhibit R11, Attachment DM39.

47 Exhibit R9, Attachment SG30.

48 Exhibit R11, Attachment SG17.

49 Exhibit R11, Attachment SG18.

50 Exhibit R9, Attachment DM42.

51 Exhibit R9, Attachment DM44.

52 Exhibit R9, Attachment DM43.

53 Exhibit R9, Attachment DM46.

54 Exhibit R9, Attachment DM48.

55 Exhibit R9, Attachment DM49.

56 Exhibit R9, Attachment DM51 and transcript at PN3602-3613.

57 Exhibit R9, Attachment DM52.

58 Exhibit R9, Attachment DM 53.

59 Exhibit R9, Attachment DM54.

60 Exhibit R9, Attachment DM55.

61 Sprigg v Paul’s Licences Festival Supermarket (1998) 88 IR 21.

62 [1995] HCA 24; (1995) 185 CLR 410 at 465.

63 Sayer v Melsteel[2011] FWAFB 7498.

64 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

65 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

66 Ibid.

67 Edwards v Giudice (1999) 94 FCR 561 [6]-[7]

68 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

69 Exhibit R9 at paras 45-48, Attachments DM26, DM27, DM28 & DM29.

70 Transcript at PN4870 & PN4873.

71 Exhibit R11, Attachment SG24.

72 Exhibit R11, Attachment SG33.

73 Transcript at PN2730, PN2743, PN2749 & PN2750.

74 Transcript at PN2754.

75 Transcript at PN2761-2766.

76 Exhibit R11, Attachment SG14.

77 Exhibit R9, Attachment DM18.

78 Exhibit R9, Attachment DM42.

79 Exhibit R11, Attachment SG19.

80 Exhibit R11, Attachment SG 21.

81 Exhibit R9, Attachment DM17.

82 Exhibit R9, Attachment DM45.

83 Exhibit R9, Attachment DM44.

84 Transcript at PN2554.

85 Transcript at PN5884-5889.

86 Transcript at PN4291-4296.

87 Transcript at PN3797-3800.

88 Exhibit R9, Attachment DM48.

89 Exhibit R9, Attachment DM51.

90 Transcript at PN3573-3623.

91 Transcript at PN3194-3201 & PN3728-3737.

92 Exhibit R11 at para 23, 24 and transcript PN4966-4971.

93 Exhibit R9 at para 55.

94 Exhibit R32, Statement of Scott Gilchrist, dated 31 August 2017 at para 20.

95 Ibid at para 21, Attachment SWG1.

96 Exhibit R32, Attachment SWG1.

97 Exhibit R9, Attachment DM39.

98 Transcript at PN5614-5618.

99 Transcript at PN5625-5629.

100 Exhibit R9, Attachments DM52 & DM54.

101 Transcript at PN2605-2722.

102 Transcript at PN2628.

103 Transcript at PN 2715.

104 Chubb Security Australia Pty Ltd v Thomas,Print S2679 at [41].

105 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

106 Previsic v Australian Quarantine Inspection Services, Print Q3730.

107 (2000) 98 IR 137.

108 Ibid at 151.

109 RMIT v Asher (2010) 194 IR 1, 14-15.

110 Exhibit R9, Attachment DM6.

111 Exhibits A3, A4, A5, A6, A12, A13, A14, A24, A25, A33 (various documents).

Printed by authority of the Commonwealth Government Printer

Shane Hawkey v Macedon Ranges Shire Council