Simon Eager v Royal Society for the Prevention of Cruelty to Animals Western Australia Incorporated T/A RSPCA WA

[2013] FWC 9511

[2013] FWC 9511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Eager
v
Royal Society for the Prevention of Cruelty to Animals Western Australia Incorporated T/A RSPCA WA
(U2013/12025)

DEPUTY PRESIDENT MCCARTHY PERTH, 12 DECEMBER 2013

Application for relief from unfair dismissal.

[1] Mr Simon Eager (the Applicant) lodged an application for unfair dismissal remedy (the Application) on 29 July 2013 claiming that he was unfairly dismissed from his employment with the Royal Society for the Prevention of Cruelty to Animals Western Australia Incorporated T/A RSPCA WA (the RSPCA). The Applicant’s dismissal took effect on 16 July 2013.

[2] The Applicant was employed by the RSPCA in February 2012 as a Senior Inspector. In April 2012, he was appointed to the position of Chief Inspector, a position he held immediately prior to his dismissal.

[3] The RSPCA is a not-for-profit non-government community-based charity. It provides a number of services including rescuing, caring and re-homing animals, community education, training and an animal adoption facility. The RSPCA also has a statutory role under the Animal Welfare Act 2002 (the AW Act). Under the AW Act, the RSPCA nominates General Inspectors whose role it is to enforce parts of that Act relating to offences against animals. The Applicant was thus a General Inspector appointed under the AW Act.

[4] The AW Act provides inspectors with a number of powers, including the power to seize an animal or other property in order to enforce offenses against animals. The AW Act also places obligations upon those inspectors in the exercise of their powers, including the obligation to return seized property. The terms relevant to this matter are those provided in section 44(5) of the AW Act, which provides what is known as the four-month rule. The provisions of the four-month rule are as follows:

“(5) Subject to subsection (9), an inspector must return seized

property to the owner if —

(a) 4 months have elapsed since it was seized and no person

has been charged with a relevant offence; or

(b) a charge of a relevant offence has been heard and

determined but the court hearing the charge has made no

order as to the return or forfeiture of the property.”

[5] Subsection 9 provides:

“(9) On an application under subsection (6), (7) or (8) a court

may —

(a) make the order sought on such terms and conditions as

the court thinks fit; or

(b) refuse to make the order.”

[6] Here, it is not in dispute that the Applicant, as the Chief Inspector, had the responsibility to ensure that the requirements of section 44(5) were not breached. It is also not in dispute that there were breaches of the requirements whilst the Applicant was the Chief Inspector. In essence, there were some nine different breaches involving nearly 30 animals. Whilst there are some differences as to the exact extent and number of breaches, those differences are not significant in the overall determination of this matter.

[7] The Applicant was dismissed for what the RSPCA regarded as serious misconduct on 16 July 2013. The RSPCA asserts that by the Applicant not fulfilling his responsibility to ensure compliance with the four-month rule, the RSPCA was at risk of having its funding from the Department of Agriculture and Food Western Australia (DAFWA) reduced and also putting at risk public confidence in the capacity of the RSPCA to fulfil its obligations. The Applicant asserts that the dismissal was harsh because it was a disproportionate punishment for the conduct. He asserts that the failure could have been easily corrected and overcome with some operational changes. The Applicant also asserts that the investigation and procedures adopted by the RSPCA that led to his termination were unfair.

The Evidence

[8] The Applicant evidenced that the Chief Inspector role was the first management position he had been appointed to. He considered that there were numerous distractions that prevented him from concentrating on his role and he received little feedback on his performance. He also stated that there had been a high turnover of staff during the period he was Chief Inspector and immediately prior to his appointment to that role. He says he considered the resources available to him and the workload expected of him to be unrealistic.

[9] The events that led to his dismissal occurred in early June 2013. The Applicant said that the night before he was due to return to work after taking some annual leave, he received a message to meet with the Chief Executive Officer, Mr Van Ooran when he returned to work on 6 June 2013 at 8:30am. He attended that meeting and was told of the non-compliance with the obligations and was also provided with a list of those instances. The Applicant says Mr Van Ooran told him that he was considering dismissing him or alternatively the Applicant could resign.

[10] The Applicant says that he informed Mr Van Ooran that he had a ridiculously heavy workload over the last 15 months and had not been “as across” things that he would have liked. He queried why he had never been approached before or given any indication regarding his performance and he began to feel bewildered about the meeting and how it proceeded.

[11] The Applicant said he left feeling stressed and was endeavouring to fathom where he had gone wrong. He reported sick on the following day and for the rest of the following week.

[12] Mr Van Ooran gave evidence that on 23 May 2013, he was copied into an e-mail from DAFWA addressed to the Applicant. The e-mail identified a complaint from a person who had animals seized. The e-mail from DAFWA requested he advise as to whether the animal had been destroyed, retained or returned to the owner and that if it remained, to see why it had not been returned in accordance with the four-month rule. The Applicant spoke to Mr Van Ooran on 30 May 2013 and informed him that the breach involved a rabbit seized in December 2012.

[13] Mr Van Ooran stated that this was the first time he had been made aware of the four-month rule. He decided to conduct an investigation to identify whether there were any other breaches and as the Applicant was on leave, he instructed Ms Amanda Swift, a Senior Inspector insubordinate to the Applicant, to conduct that investigation. Ms Swift indicated that she had concerns of breaches and that she had raised those concerns previously with the Applicant who had reassured her that he was dealing with those cases.

[14] The investigation by Ms Swift indicated nine cases of breach involving 24 animals. Mr Van Ooran received advice on how best to deal with the issue and briefed the President of the RSPCA on the AW Act regarding the circumstances.

[15] At a meeting with the Applicant on 6 June 2013, Mr Van Ooran says he outlined the instances of the breaches of the four-month rule. He asked the Applicant if he acknowledged if he was aware of the rule. The Applicant indicated that he understood the gravity and serious nature of the situation. He indicated to the Applicant that he could tender his resignation or the disciplinary process would continue, which would likely involve the termination of the Applicant’s employment. Mr Van Ooran says that the Applicant stated words to the effect of “I won’t make any excuses. I’m sorry. You beat me to the punch by raising these concerns. I’ve been struggling with management matters; this isn’t the job for me. I’ve been strongly thinking of moving on.” Mr Van Ooran’s notes of the meeting indicate that the serious nature of the breaches was emphasised to the Applicant.

[16] The Applicant indicated that he wanted to think about the options and would work from home for the rest of the day.

[17] On 10 June 2013, Mr Van Ooran received a text message from the Applicant indicating he was unwell and would not be at work. Mr Van Ooran rang the Applicant who asked him whether the previous meeting had been a disciplinary meeting. Mr Van Ooran responded that there had been no issue with his performance before this time.

[18] Later that morning, the Applicant attended the offices of the RSPCA and indicated that he had sought legal advice and would be in touch with the RSPCA by the end of the week. Mr Van Ooran says he had gained the impression from the earlier discussions held with the Applicant that he was strongly contemplating not returning to the RSPCA, and as a consequence of that indication, it terminated access to the RSPCA system.

[19] On 14 June 2013, Mr Van Ooran received correspondence from the Applicant’s lawyers proposing a settlement which involved for the Applicant resigning. That proposal was responded to on 17 June 2013.

[20] Also on 14 June 2013, Mr Van Ooran was informed of disparaging comments allegedly made by the Applicant at a function a number of inspectors had attended. On 18 June 2013, Mr Van Ooran e-mailed the Applicant warning him about any conduct involving disparaging comments about the RSPCA. On 18 June 2013, the RSPCA was also advised that the Applicant’s legal advisers were no longer acting for him.

[21] On 20 June 2013, the Applicant was suspended from duty on full pay. The suspension followed a number of telephone discussions between the Applicant and the Human Resources Manager, Mr Ian Wardrope. During those discussions, it was asserted that the Applicant had made disparaging remarks about the RSPCA during a social function. The Applicant denied making any disparaging remarks and no direct evidence was called regarding that issue.

[22] On 26 June 2013, the Applicant was advised by e-mail that there would be a formal disciplinary meeting that he had to attend. On 5 July 2013, that disciplinary meeting was conducted and the Applicant was informed that he was being investigated for serious gross misconduct. The nine instances of breach of the four-month rule were provided to him. The Applicant refuted that he was guilty of gross misconduct and gained the impression that the RSPCA had already made up their minds that they were going to dismiss him. An offer of settlement was canvassed and the Applicant was given a few days to respond. The offer involved the Applicant resigning from his position. On 8 July 2013, the Applicant formally advised the RSPCA that he rejected the offer.

[23] A further meeting was held with Mr Van Ooran on 11 July 2013. The Applicant produced a prepared document, which he read at the meeting, which he regarded as his final response statement to the RSPCA. On 16 July 2013, the Applicant was advised by e-mail that his employment had been terminated for serious misconduct.

[24] Mr Van Ooran formed a view that the Applicant was not going to resign and therefore decided to stand down the Applicant and put in place procedures to deal with the alleged misconduct by conducting an investigation. At a meeting on 5 July 2013, the Applicant was again advised of the nine breaches of the four-month rule and that he had previously acknowledged that it was his responsibility to ensure that such breaches did not occur. Mr Van Ooran indicated he was still prepared to consider an agreed separation, providing a separation agreement was signed, or otherwise he would continue to progress the allegations of misconduct.

[25] The Applicant responded to Mr Van Ooran that he had been overworked and the RSPCA had been aware of the shortcomings in the investigation process. Mr Van Ooran responded that breaches of the four-month rule was serious and was having, or could have, significant ramifications on the RSPCA. On 8 July 2013, the Applicant advised the RSPCA by e-mail that he would not be resigning. Mr Van Ooran decided he needed to finalise the investigation and make a decision in relation to the Applicant’s employment. Therefore, he arranged a meeting on 11 July 2013 at which time the issues were canvassed and the situation explained.

[26] At the meeting on 11 July 2013, the Applicant indicated that he wanted a quick resolution because he considered he was under pressure to resign which he did not want to do and rather, he wanted the RSPCA to make a decision. The Applicant also said that he would consider a settlement but the last offer from the RSPCA was not enough and was too restrictive. He wanted the RSPCA to make their decision and then he would consider settlement. Mr Van Ooran considered the comments ambiguous and that there was some indication that the Applicant wanted settlement e-mailed to him on 12 July 2013 in an endeavour to see whether that could be achieved. The Applicant responded on 15 July 2013 to the effect that he would not be resigning.

[27] Mr Van Ooran, after discussion with other staff members and receiving advice, decided to terminate the Applicant’s employment. The reasons for the termination were that breaches of the four-month rule occurred and the Applicant’s failure to monitor and prevent breaches over a substantial period of time.

Consideration

Was there a valid reason for termination?

[28] The evidence and conduct involved here are not really in dispute. The Applicant was responsible for a statutory obligation to comply with a rule regarding seized animals. He was aware of the rule, he was aware that it was his responsibility to enforce the rule and he realised a breach of the rule could have serious consequences for the RSPCA.

[29] The Applicant endeavoured to explain his failure to meet his responsibilities by asserting that he had not been properly trained, he was overworked, and there were insufficient resources for him to properly perform the function. There were other reasons he proffered of similar type. The Applicant also endeavoured to establish that the termination of employment was a disproportionate response for the conduct.

[30] I do not accept the arguments of the Applicant regarding this element of my considerations. Indeed it appeared to me during the proceedings that the Applicant’s real grievance was the RSPCA dismissing him for serious misconduct. The Applicant seemed to acknowledge the job was a bit beyond him. I do not consider that his conduct did constitute serious misconduct. Indeed, his failures were not really for conduct at all but a failure to perform his duties diligently.

[31] However, whilst the dismissal may not have been serious misconduct, nevertheless there were serious performance flaws and a clear lack of basic diligence in ensuring his Chief Inspector statutory responsibilities were met. Given the potential consequences of that conduct, the RSPCA quite obviously lost confidence in the Applicant. The seriousness of the failure was such that the disciplinary response of the RSPCA was not disproportionate.

[32] I find that there was a valid reason for termination.

Was the Applicant notified of the reason for his dismissal and was he given an opportunity to respond?

[33] The Applicant was given notification of the reasons surrounding his dismissal on a number of occasions. On each of those occasions the issues surrounding his performance and conduct and the ramifications of it would be canvassed quite thoroughly. Whilst the thrust of some of those discussions were directed at avoiding a dismissal by the RSPCA by establishing an agreed settlement for separation, the RSPCA clearly explained the reasons and its consequences to the Applicant.

[34] The discussions also provided a capacity for the Applicant to respond to the allegations and he did respond. His responses did not dispute the allegations themselves; rather, as identified above, he endeavoured to deflect the blame. The Applicant also endeavoured to negotiate a settlement. Whilst I do not criticise the attempts by the Applicant to maximise his interests, it nevertheless is indicative that the Applicant was given an opportunity to respond and he used that opportunity to his best advantage.

[35] I find that the Applicant was notified of the reason for his dismissal and given an opportunity to respond.

Was there an unreasonable refusal to bring a support person?

[36] There was no refusal for the Applicant to bring a support person.

Warning regarding unsatisfactory performance

[37] The RSPCA says that the Applicant was not dismissed for unsatisfactory performance but for serious misconduct and therefore, that fact should not be given any weight. I disagree. Even if the dismissal was for serious misconduct, that conduct involved the failure of the Applicant to perform an important element of his responsibilities. To me it is clear that termination was a direct consequence of the failure by the Applicant to perform his duties. Indeed, the only reason the RSPCA seriously put forward for the dismissal was the performance failure.

[38] The Applicant was aware of his responsibilities regarding the four-month rule. He knew that it was not a target but rather an obligation and he failed to fulfil an obligation. A warning should not be necessary regarding that performance, although a more sophisticated and alerting system was clearly called for. It was hardly surprising that the Applicant had not been warned as Mr Van Ooran admitted in his evidence that he only became aware of the four-month rule requirement once he was alerted to the rule in an e-mail from DAFWA to the Applicant on 30 May 2013.

[39] I find that the Applicant was not warned about his unsatisfactory performance.

Size of the enterprise and dedicated human resources personnel

[40] The RSPCA is a sizable organisation and have dedicated human resources personnel.

Other relevant matters

[41] The RSPCA has an annual budget of nearly $10 million which largely comes from the community, from donations, bequests, fundraising events and activities. Under a Memorandum of Understanding between DAFWA, the agency responsible for the administration of the AW Act, about $500,000 is provided to the RSPCA. $300,000 of that amount is provided specifically for the Inspectorate function.

[42] The Inspectorate function is a significant component of the RSPCA’s role, not only in terms of reliance on significant funding from DAFWA to perform the statutory functions, but also in maintaining public confidence in the RSPCA. Public confidence of the RSPCA is critical in being able to generate funds through donations and the like. Therefore, if the RSPCA were criticised for not properly performing its statutory functions as well as putting the DAFWA funding at risk, it could jeopardise public confidence and the capacity to generate other, and more substantial, funds.

[43] By his own admittance, the Applicant was placed in a role involving managerial responsibilities when he had no managerial experience and he was given no managerial training. He seemed to be left to his own devices with no systematic flagging of timelines he was obliged to meet. In those circumstances, it is unfortunate that alternatives to dismissal were not more thoroughly canvassed. It could be partly explained by the approach the RSPCA took to the investigation of the breaches. I also find it peculiar that a subordinate to the person being investigated would be given any carriage of any investigation such as Ms Swift was. It is also unfortunate that Mr Van Ooran, from the outset of his discussions with the Applicant, took the approach that the Applicant either resign or be dismissed. It is hardly surprising that the discussions therefore took on a type of stand-off between the parties regarding the terms of the separation, rather than alternative forms of discipline.

[44] It appeared to me that the RSPCA should have more intensively considered alternatives of termination of employment rather than embarking on the course it did that the only alternative was the Applicant resign or his employment be terminated by the RSPCA.

[45] I also had regard to the assertion about disparaging comments made by the Applicant. The RSPCA failed to establish that assertion in these proceedings. However, I do not consider that the assertion influenced the RSPCA in its decision.

Conclusion

[46] There are elements of the considerations here that weigh in the Applicant’s favour and there are elements that weigh in the RSPCA’s favour. The primary elements that I have given the greatest weight to are the reason for the dismissal and the failure of the RSPCA to consider alternatives to dismissal. The balance on the circumstances involved here weigh in favour of the RSPCA due to the significance of the damage the Applicant’s failure could have, and may still have, on the RSPCA. The Applicant’s position was such that he was aware of the obligation. In my view, the seriousness of that failure outweighs other elements that weigh in favour of the Applicant.

[47] I find that the dismissal of the Applicant was not harsh, unjust or unreasonable and thus the Application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S Eager on his own behalf

Ms R Dawson on behalf of the RSPCA

Hearing details:

2013.

Perth:

28 November.

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