Steven Post v NTI Limited T/A NTI

[2015] FWC 3911

[2015] FWC 3911 [Note: An appeal pursuant to s.604 (C2015/4978) was lodged against this decision - refer to Full Bench decision dated 16 October 2015 [[2015] FWCFB 6785] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Post
v
NTI Limited T/A NTI
(U2014/14956)

COMMISSIONER WILLIAMS PERTH, 9 JULY 2015

Termination of employment.

[1] This matter concerns an application made by Mr Steven Post (Mr Post or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is NTI Limited T/A NTI (NTI or the respondent).

[2] The respondent is an insurance company which specialises in truck insurance.

[3] Mr Post commenced his employment with NTI in 2006. In a letter of termination dated 23 October 2014 NTI advised that he had been found to have engaged in serious misconduct and as a result NTI had made the decision to terminate his contract summarily without notice.

[4] At the hearing of this matter Mr Post gave evidence on his own behalf and called Mr King, Chief Executive Officer of the Western Australian Road Transport Association (WARTA) as a witness. Mr Post also provided witness statements from Mr Price, Mr Atkinson, Mr Howard, Ms Cooper, Mr Richard Post and Ms Stachewicz, the Executive Officer of Transafe WA. These witness statements were accepted by the Commission as the evidence in chief of these witnesses and the respondent did not seek to cross-examine these witnesses. The respondent called Mr Brereton, the General Manager−Human Resources, Mr Sweeney, the Chief Information Officer, Mr McAleese the State Manager−Western Australia and Mr Edmonds, the General Manager−Sales and Distribution.

The evidence

[5] Having considered the evidence of all of these witnesses I make the following findings in this matter.

[6] Mr Post began his employment with NTI in 2006. He was employed as a Risk Surveyor. This was a senior role and Mr Post was allowed to work with considerable autonomy. The applicant’s job was to attend the premises of potential and current clients and conduct surveys for the purposes of risk management and insurance premium assessment. This was mainly carried out within Western Australia however on occasions Mr Post also travelled to other states as part of this work.

[7] In 2011 there were some changes made to Mr Post’s role and responsibilities. Consequently the parties executed a variation to the 2006 contract which was dated 19 May 2011 1.

[8] Relevantly the contract includes the provisions set out below.

[9] A provision that he will report to the Underwriting Manager–WA or such other positions as determined by the company from time to time.

[10] The normal business hours are 8.30 a.m. to 5.00 p.m. however work outside in addition to 38 hours per week may be reasonably required.

[11] Schedule 1−Duties includes a position overview which says that Mr Post is to:

• Undertake surveys that clearly evaluate risk for State underwriting teams.



• Develop tools and implement processes that directly influence performance of the NTI fleet and motor portfolios.



• Conduct reviews of large losses for regions and identify trends.

[12] Schedule 1 also includes ten key responsibilities one of which is to:

• Liaise with associations and relevant industry bodies to collect and disperse information. These liaisons are used to build relationships, enhance NTI’s reputation in the marketplace and assist in creating change for a safer performing transport industry.

[13] Paragraph 2.1 specifies particular duties which include that Mr Post is to:

• Serve the company faithfully and diligently to the best of your ability.



• Act in the company’s best interests.



• Comply with all policies of the company in place from time to time.



• Report to the person or persons nominated by the company from time to time.

[14] Paragraph 2.2 of the contract specifically says that he must not:

• Act in conflict with the company’s best interests.

[15] Paragraph 8 of the contract also includes a provision about confidential information which is defined as being:

“...all confidential information including, but not limited to trade secrets and confidential know-how of which you become aware or generate (both before and after the day this letter is signed by you) in the course of, or in the connection with, your employment with the company.”

[16] The contract says that Mr Post may use confidential information solely for the purposes of performing his duties with the company and he may disclose confidential information only to persons whom:

• are aware and agree that the confidential information must be kept confidential; or



• have signed any confidential agreement required by the company from time to time; and either:



• have a need to know (and only to the extent that each has a need to know); or



• have been approved by the person or persons nominated by the company from time to time.

[17] Paragraph 11, the termination provisions of the contract, provide that the employment may be terminated by the company at any time without notice if Mr Post:

• Disobeys a lawful direction of the company.



• Is guilty of other serious misconduct.



• Breaches paragraph 8 (which is the confidential information provision mentioned above).



• Breaches any company policy including those policies contained in the NTI Employee Handbook and Induction Manual, “Welcome to NTI”.



• Breaches any other material provision set out in the contract including paragraphs 2.1 or 2.2.

[18] Paragraph 20 provides that Mr Post will comply with the company’s code of conduct and that a breach of the code is a breach of his contract.

[19] Whilst Mr Post may dispute the application of these provisions of the contract to the circumstances surrounding his dismissal he does concede that he was at all times bound by the terms of his contract and the provisions of the various company policies and the code of conduct.

[20] In 2011 Mr Post conceived the idea of a new transport body to assist in identifying and managing risk within the road transport industry in Western Australia, particularly for those stakeholders in the industry who did not have a process for raising and solving safety issues. In Mr Post’s view no similar organisation existed in the Western Australian road transport industry and there was a need for a representative body to carry out this role.

[21] On 28 February 2012 there was an inaugural meeting to discuss “Safer Trucking in WA” this new transport body. The meeting was attended by Mr Post and the minutes of the meeting identify him as being from NTI 2. Three other persons attended the meeting one of which was Mr King who is identified as being from WARTA. The minutes record that Mr Post tabled a paper entitled “Proposal to create a road transport safety Forum in Western Australia”. The minutes also discloses that Mr King suggested that a Constitution was required for a new Association and he could arrange preparation of that and that in addition he would undertake the registration of a business name which WARTA would pay for. The meetings also state that it was agreed that Mr Post would chair the entity until the first formal general meeting.

[22] The evidence is that the following month in March 2012 Mr Post spoke to Mr Edmonds about an idea he had for a new transport industry body modelled on a concept known as “Drillsafe” from the mining industry. In response Mr Edmonds expressed his view that there were enough bodies involved in this type of work and NTI probably did not have the time or resources to support an extra organisation. Mr Edmonds said he wanted Mr Post to focus on the WA operation of NTI and focus on the requirements of his role. Mr Edmonds said to Mr Post that if he wished to pursue other private matters this could not be to the detriment of NTI’s business or his role with NTI. Mr Edmonds told Mr Post to discuss this new transport industry body with NTI’s Mr Driscoll 3.

[23] Mr Driscoll is NTI’s National Manager of Industry Relations. In this role Mr Driscoll is responsible for the NTI strategy in terms of identifying which associations NTI will forge and maintain strategic alliances with. Some of these alliances involved direct commercial agreements between a transport industry association and NTI.

[24] One such strategic alliance in Western Australia is between NTI and WARTA.

[25] I accept on the evidence that it is not Mr Post’s role to decide which transport industry bodies NTI will develop strategic alliances with.

[26] Mr Post’s evidence which was confirmed in Mr King’s evidence and which I accept is that on 6 August 2012 Mr King advised by email that he was withdrawing WARTA’s support for a new transport body and that WARTA had been asked by the National Transport Commission and the Australian Trucking Association to join forces and develop an industry-wide safety initiative on behalf of the transport industry in Australia. Consequently Mr King stated it would be a conflict of interest and so he would have to withdraw the support of WARTA for the establishment of the new transport body which Mr Post was championing.

[27] In December 2012 Mr Post asked to meet Mr Edmonds and on this occasion put to him the desirability of their being a new road transport safety association which Mr Post called ‘Transafe’. I accept the evidence of Mr Edmonds that at this time he told Mr Post that without Mr Driscoll’s sign off NTI would not support any involvement with another association.

[28] On 14 May 2013 Mr Post sent a letter to Mr Driscoll headed “RE FOUNDATION SPONSORS TRANSAFE.COM Incorporated”. Attached to this was a business plan for ‘Transafe.com’.

[29] The letter opens by Mr Post saying he has been working with a group of road transport industry members in developing a new industrial safety organisation. The letter goes on to talk about sponsorship opportunities and that the executive of ‘Transafe.com’ would like NTI to consider their invitation to be a foundation sponsor.

[30] The business plan identifies Mr Post as the President of Transafe. Throughout the business plan the document also refers to Mr Post as a Risk Surveyor with NTI. In a number of places in the business plan the contact details for Mr Post are provided including his NTI email address and the phone and fax numbers for him at NTI.

[31] The business plan includes a profile of Mr Post detailing his history of involvement in the road transport industry and noting his position with NTI.

[32] Mr Post agrees that his profile and others contained within the business plan were designed to establish Transafe’s credentials in safety for the transport industry 4.

[33] Within the business plan under the heading of “Membership”it states:

“Membership will be open to any individual, organisation or government authority with a link to the road transport industry.

Membership fees will initially be seventy-five dollars ($75.00) for an individual and seven hundred and fifty dollars ($750.00) for a company or government body.

A concerted membership drive will commence as soon as the executive officer is appointed. An extensive data list is currently being formulated to complement this goal.” (Underlining added)

[34] Under the heading “Market research” references are made to Mr Driscoll and an NTI 2011 Major Accident Investigation Report. There is no evidence as to whether this was a publicly available report at that time or not.

[35] Mr Edmonds also received the request for sponsorship of Transafe and replied to Mr Post by email on 21 May 2013. In that email Mr Edmonds made the following points:

• NTI was not in a position to support Transafe.



• NTI has a strategy led by Mr Driscoll to identify partners in the industry and it is Mr Edmonds’ role to ensure the strategy is not compromised.

[36] Mr Edmonds’ email then raised a series of concerns about Transafe and Mr Post’s involvement with it:

• Had this endeavour been signed off by NTI noting conversations with Mr Post had made clear that Mr Driscoll leads this strategy for the business and he should liaise with him?



• Does Transafe have any actual or potential conflicts of interests with Trucksafe the safety strategic group that NTI supports? Mr Edmonds also refers to financial implications or that a competitor of NTI may gain leveraged by supporting Transafe.



• The references to NTI in the business plan may lead other stakeholders to perceive NTI is supportive of Transafe. Mr Post is asked to clarify how he’s made the separation between NTI and Transafe.



• Mr Edmonds notes that Mr Post now holds at least two industry board positions and notes NTI’s previous advice that they would not support Transafe in a business sense or provide any liability coverage. Mr Post is asked to confirm he has his own coverage and that other groups are fully aware that this is a personal endeavour on his part.



• Mr Edmonds closes his email by stating that Mr Post holds an important role in ensuring NTI’s profitability is protected. Mr Post is asked to confirm that his other activities do not present any concern in his ability to fulfil the requirements of his role and responsibilities to NTI.



• Mr Edmonds notes that NTI would not support activities outside of Mr Post’s role during normal business hours.

[37] Mr Post replied to Mr Edmonds’ email on 27 May 2013. Mr Post agreed Transafe has not been signed off by NTI but said he did not see why it would need to be.

[38] Mr Post says he did not believe there is any conflict of interest between Transafe and any other associations that NTI supports. Mr Post says no other insurance underwriting organisation has been approached with a request to sponsor Transafe.

[39] Mr Post says he would not do anything to jeopardise NTI’s business.

[40] Mr Post did not see any actual or potential conflict of interest with the current safety strategy group Trucksafe.

[41] Mr Post says that he always points out his involvement with Transafe is not linked to his employment with NTI. He says he can remove any reference to NTI from Transafe documentation to remove any ambiguity.

[42] Mr Post says that he is working long hours in his role in any event.

[43] Mr Post says in his email that if Mr Edmonds is not comfortable with the roles he plays with association and other industry bodies then he will resign from those roles upon receipt of Mr Edmonds’ written direction.

[44] Mr Edmonds replied to Mr Post on 28 May 2013 and said that Mr Post needs to understand Mr Edmonds has a responsibility to identify and manage any threat or risk to the strategic or operational performance of NTI.

[45] Mr Edmonds explained to Mr Post the reasons various questions were asked of Mr Post is that NTI has been used alongside his name in the promotion of Transafe which could raise the perception that NTI already supports the body. Transafe is not supported or aligned to NTI’s current transport liaison strategy and Mr Edmonds said there have been numerous discussions with Mr Post in this regard by a number of NTI people over a period of time. The correspondence goes on to say that the Transafe initiative has the potential to have competitors of NTI and its shareholders involved and that the Transafe proposal could lead to personal/professional conflict.

[46] Mr Edmonds’ email said he had no doubt that Mr Post’s intentions were honourable but Mr Post needs to ensure that his actions are in accordance with his employment contract. Mr Edmonds referred specifically to provisions in Mr Post’s contract that mention him acting in the best interests of the company, not acting in conflict with the company’s best interests, not competing with the company and to the provisions referring to confidential information.

[47] Mr Edmonds also pointed out that the respondent did not expect Mr Post to be working the long hours he said he had been.

[48] The evidence is that NTI at no time has directed Mr Post to resign from his position at Transafe.

[49] Mr Post agrees he was aware that NTI was a sponsor of WARTA. The evidence is that businesses that were members of WARTA were offered insurance policies on preferential terms by NTI. Mr Post was aware that WARTA received a percentage of the premiums paid to NTI by those businesses.

[50] Under cross-examination when the proposition was put to Mr Post that there was the potential for another insurance company to become a sponsor of Transafe which could lead to a reduction in NTI’s client base and income Mr Post would not concede this was possible. Mr Post rejected this possibility with the following answers:

“Well it wouldn’t have happened while I was there.”
“While I was working for NTI that would not have happened.”
“The fact is it wouldn’t have happened while I was employed by NTI.”
“I had a conflict of interest in relation to that and I wouldn’t have accepted it.” 5

[51] Mr Post’s evidence which I accept is that he was also a Director of Transport Women Australia and has previously been involved with the Chartered Institute of Logistics and Transport and that nobody at NTI had ever taken issue with his involvement with these organisations.

[52] The evidence is that in March 2014 Mr Post told Mr McAleese he would be speaking at a Transafe conference that month.

[53] Subsequently Mr McAleese was advised on 22 April 2014 by Mr Edmonds that Mr Post had spent all day at this Transafe conference. This was on an ordinary business day for NTI. Indeed the evidence is that Mr Post acted as the Chair for the conference. Mr Post made welcoming and closing remarks to the conference and facilitated a session during the day.

[54] Mr Post was paid by NTI for that day. Mr Post had not advised anybody in NTI he would not be available for work that day nor did he make any application for any sort of leave from NTI for that day.

[55] Mr Post’s evidence was that his presence at the Transafe conference was consistent with his duties under his contract to liaise with industry associations 6. Mr Post does not concede that participation at and involvement with the Transafe conference for this day was in conflict with Mr Edmonds’ instruction to him not to perform work for Transafe in NTI work time. Mr Post says he was working consistent with a flexible hours agreement made with one of his previous Managers Mr Carlson.

[56] Mr McAleese met with Mr Post on 22 May 2014 to discuss his involvement with Transafe. I accept that during their discussion Mr McAleese reminded Mr Post that he should keep his involvement with Transafe separate from his employment with NTI and he needed to avoid their being any conflict between his employment obligations to NTI and his personal involvement with Transafe.

[57] He told Mr Post he could not attend future Transafe conferences in work time it would need to be done on his own time and he would have to make a leave request beforehand. Mr Post told Mr McAleese that he was still using his NTI email address for Transafe matters. Mr McAleese told him that he should not do this and should set up a separate personal email account for Transafe email. Mr McAleese mentioned a number of times that Mr Post’s involvement with Transafe should not create a perception that Transafe was supported by NTI.

[58] After this Mr McAleese met with Mr Post fortnightly and sometimes weekly and his impression was that Mr Post was seeking to reassure him he was maintaining a separation between his employment and his personal involvement with Transafe. Specifically Mr Post mentioned that Transafe had employed an Executive Officer and she was substantially running the body and Mr Post was consequently less involved in Transafe matters.

[59] In April 2014 Mr King had contacted Mr Driscoll raising concerns about Mr Post’s involvement with Transafe and NTI and approaches made to WARTA members to join Transafe. Mr King in July 2014 sent an email to Mr Driscoll and Mr McAleese again raising concerns about Transafe. Mr Driscoll was absent due to a period of illness and consequently Mr Edmonds responded to Mr King regarding his concerns. Mr Edmonds’ evidence which I accept was that Mr King did not provide any evidence to support the concerns he had about Transafe’s activities and Mr Post’s involvement with Transafe. Mr Edmonds did say that any allegations as to the conduct of an NTI employee which might be inconsistent with their obligations would be taken seriously. There was no discussion with Mr King regarding any potential disciplinary action against Mr Post.

[60] Following this Mr Edmonds approached Mr Brereton regarding the concerns he continued to have about Mr Post’s involvement with Transafe. In light of those concerns Mr Brereton initiated a review of Mr Post’s NTI email account and use of the company’s computer system. Each employee of NTI has a personal drive on their computer, the H drive, which only that employee and the NTI information technology administrators can access.

[61] In August 2014 Mr Sweeney conducted the review and sought to identify any activities by Mr Post related to Transafe. Mr Sweeney’s evidence as to what was found by the review was not challenged in cross-examination.

[62] Under cross-examination Mr Sweeney’s evidence was that he had found a large number of files relating to Transafe and a large number of emails which set off warning signs for him. His evidence was that it was very unusual to see that amount of activity for a personal or non- NTI purpose. Mr Sweeney did not dispute that the number of emails found in Mr Post’s account which related to Transafe amounted to 1039 but this was over a period of 760 days.

[63] Mr Sweeney’s review identified:

• A significant amount of email traffic relating to Transafe particularly between Mr Post and Ms Stachewicz, the Executive Officer of Transafe.



• Emails from Mr Post to NTI clients and other business he was dealing with on behalf of NTI regarding his involvement with Transafe including sending some of them Transafe promotional material.



• Emails from Mr Post to his personal email address sending NTI property/confidential information.

[64] Some of the emails Mr Post sent from his NTI email address included a statement at the bottom to the effect that his involvement with Transafe was not part of his function at NTI but something he does in his spare time.

[65] A significant number of Mr Post’s emails concerning Transafe occurred after he had been specifically told by Mr McAleese in May 2014 that he should get a personal email address for Transafe matters and not use NTI’s email. Mr Post from at least September 2013 had a separate personal email address that he could have used for non NTI email communication if he had wished to 7.

[66] A number of specific emails in evidence were sent by Mr Post during normal working hours and involve him promoting the interests of Transafe by inviting people to attend Transafe events, requesting people send lists of persons who might be interested in attending Transafe events or sending information to people which was from Transafe. These emails were sent in the course of Mr Post having dealt with the individuals in his capacity as an employee of NTI and were sent from his NTI email address.

[67] Mr Sweeney’s review also identified:

• Materials saved on Mr Post’s H drive relating to Transafe including member lists, rules of association, business plans, agendas and minutes of meetings.



• Mr Post had copied client information from the NTI system and created a document entitled Potential Members List on his H drive 8.



• Mr Post had a folder called “Transafe” on his H drive. The Potential Members List mentioned immediately above was saved in this folder along with other documents related to Transafe mentioned above.

[68] Mr Sweeney specifically reviewed the Potential Members List document. He compared this document to an NTI document titled the “AA Survey Register”. The AA Survey Register is a document held on NTI’s computer systems G drive in the Perth office which is accessible to all employees including Mr Post. I accept his evidence which was not challenged in cross-examination that the Potential Members List document contains typographical errors that are identical to specific typographical errors found in the AA Survey Register document. In addition the same instances of unusual capitalisation of suburb or town names where they form part of a particular client’s name in the AA Survey Register is replicated in the Potential Members List. Further the Potential Members List and the AA Survey Register both contain a worksheet and both worksheets are titled “Survey Register”.

[69] I specifically accept the conclusion of Mr Sweeney that the Potential Members List had been created by Mr Post by selectively copying and pasting from a file called “AA Survey Register” which is a confidential NTI client survey register.

[70] Mr Post did concede that he created the Potential Members List from the NTI AA Survey Register. Mr Post rejected the proposition that the list of potential members was a list of potential members for Transafe to pursue. His explanation was that the list is a list of businesses that are potential members of all sorts of organisations. This evidence is not credible. Mr Post under cross-examination did not explain why he would be compiling such a list at all as part of his responsibilities at NTI as a Risk Surveyor. Nor in his evidence did Mr Post explain why the Potential Members List was contained in a folder on his H drive titled “Transafe”.

[71] The evidence is that the Potential Members List was created in August 2012 and modified on a number of occasions or accessed by Mr Post through to January 2014.

[72] Mr Post’s evidence as to why he created the Potential Members List document using NTI’s AA Survey Register is not believable.

[73] I find that the AA Survey Register was confidential information within the meaning of paragraph 8 of Mr Post’s contract of employment.

[74] I find that Mr Post used confidential NTI information to create the Potential Members List and on the balance of probabilities did this with the intention that the list would be used by Transafe to assist it recruit these businesses as new members.

[75] Mr Sweeney’s evidence was that he identified a significant amount of the email traffic relating to Transafe was between Mr Post and Ms Stachewicz.

[76] One email dated 1 November 2013 9 is fromMs Stachewicz to Mr Post and a number of other persons involved with Transafe and has the subject “Potential members/sponsors database – stage one”. The email says that she has been working on building a list of contacts using a spreadsheet that Mr Post gave her as a foundation.

[77] The respondent submits the obvious conclusion is that the spreadsheet Ms Stachewicz referred to in her email was in fact the Potential Members List sent to her by Mr Post. The evidence on this point is unclear and is not sufficient to reach this conclusion.

[78] I am satisfied however that Mr Post did provide Ms Stachewicz a list of businesses that Transafe could approach regarding membership. It may be that some potential members on this list were suggested by Mr Post not from his knowledge acquired as an employee of NTI’s but instead based on Mr Post’s long-term industry knowledge 10. However on balance it can be inferred that the list of potential members that Mr Post did give to Ms Stachewicz inevitably included businesses he was aware of, and contact details he had obtained by compiling the Potential Members List which itself was based on NTI confidential information.

[79] The evidence also demonstrates that on numerous occasions Mr Post received meeting invitations by email for Transafe meetings or events. Many of these were for meetings or events that would be during normal NTI working hours. Mr Post electronically accepted a number of these email invitations indicating he would attend. On none of these occasions did Mr Post seek permission from NTI that he be allowed to attend to non-NTI business.

[80] Mr Post in his evidence says that he worked extended hours for NTI often starting early and finishing later than his normal working hours and so this entitled him to undertake activities for Transafe during the normal working hours of the day. The evidence is that at no time did Mr Post seek any approval from NTI to work his hours in this manner. In any event Mr Post never sought any approval to undertake the regular activities for Transafe the evidence discloses he was undertaking.

[81] The evidence is that in September 2014 Mr King wrote a letter to the Chair of the Australian Trucking Association. The letter concerned an application from Transafe WA for membership of the Australian Trucking Association. In that letter Mr King referred to the fact that he was part of the inaugural committee of Transafe, that he had resigned after it became apparent Transafe’s objectives were not as stated and that they were keen to use other members of the committee to form another Association, that the Chairman of Transafe Mr Post was a full-time employee of NTI, that it had become apparent that Transafe used the NTI insurance list highlighting WARTA members and approached them with an offer to join Transafe at a rate of $80 per company, and that:

“The Transafe WA situation has been discussed formally with the NTI senior management namely Owen Driscoll and Mike Edmonds who, in conjunction with the WA State manager, will be deciding, very shortly, the ongoing involvement of the Transafe Chairman – Steve Post, with NTI.”

[82] The letter closed by Mr King stating that he does not believe that Transafe is acting in the best interests of the industry. Mr King requests Transafe application for membership of the Australian Trucking Association be rejected.

[83] In cross-examination on this letter Mr King stated that there were a number of WARTA members that had told him that Mr Post and other people had approach them regarding membership of Transafe and this was a sizeable attack on his association 11.

[84] Mr King’s evidence was that four of five of the WARTA members that had been approached to join Transafe were NTI customers.

[85] Mr King’s evidence was that in discussion with Mr Driscoll, Mr Edmonds and Mr McAleese about the situation his concern was the involvement of Mr Post being an employee of NTI as Chairman of Transafe. Mr King’s position was that you cannot have the Chairman of Transafe, which is working against the interests of WARTA, being an employee of NTI.

[86] Mr King’s exasperation which he expressed to NTI’s management was that at the same time NTI was asking what WARTA was doing to increase the flow of WARTA members taking up NTI insurance WARTA was fighting to retain its members because of competition from Transafe.

[87] Mr King denied he ever expected or discussed with NTI that they would deal with this problem in a way that would affect Mr Post’s employment. What he apparently expected them to address was the fact that Mr Post was the Chairman of Transafe.

[88] There is little dispute as to the course of action the respondent took having become aware of Mr Post’s activities following the review conducted by Mr Sweeney.

[89] The respondent met with Mr Post on 9 September 2014. Mr Brereton outlined the respondent’s concerns regarding Mr Post’s conduct, use of NTI’s email and information systems and activities in relation to Transafe. At that meeting Mr Post was not required to respond to these matters but was advised he would be placed on leave with pay and that a further meeting would be held on 11 September 2014 and he was invited to bring a support person to that meeting. He was provided with a show cause letter detailing the respondent’s concerns.

[90] Mr Post engaged solicitors and following correspondence with the respondent new dates within by which to respond were agreed. A written response to the show cause letter was provided by Mr Post solicitors on 22 September 2014 which ran to 19 pages.

[91] In response the respondent provided more detailed information and evidence on which it based its concerns and these were provided to Mr Post on 8 October 2014 in the form of a further show cause letter. This was responded to in writing by Mr Post solicitors on 15 October 2014.

[92] On 23 October 2014 the respondent advised Mr Post by letter his employment was terminated for serious misconduct.

[93] The evidence is that in more recent times after Mr Post’s dismissal Transafe has entered into a sponsorship arrangement with Zürich insurance who are a competitor of NTI.

Consideration

[94] The criteria for determining whether a dismissal was harsh, unjust or unreasonable are set out in section 387 below.

“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.”

[95] Mr Post in his various responses to the show cause letters from NTI and in his submissions in the hearing argued for a number of reasons that his actions and conduct should not be the subject of criticism by the respondent.

[96] Mr Post argues that it is a specific term of his contract that he liaise with associations and relevant industry bodies and his interactions with Transafe were wholly in accordance with this obligation and consequently NTI are not entitled to criticise his actions and conduct.

[97] This argument ignores that the requirement in his contract to liaise with associations and relevant industry bodies must be interpreted in the context of the other duties in his contract to amongst other things serve the company faithfully and diligently, to promote the interests of the company and to act in the company’s best interests. If Mr Post was liaising with Transafe in compliance with the term of his contract I do not accept that entitled him to ignore the fact that this liaison was contrary to the interests of NTI nor that he was entitled to ignore directions from his Managers on a number of occasions regarding this liaison.

[98] In any event Mr Post’s conduct and activity is not properly characterised as liaising with Transafe. Mr Post rather was one of the driving forces behind the establishment of Transafe, its development and its growth. Mr Post was the Chairman of Transafe. His interactions with Transafe were not as an employee of NTI liaising with an industry association.

[99] Mr Post’s involvement with Transafe was motivated not at all by a desire to comply with his employment contract but instead by what in other circumstances might have been a laudable personal enthusiasm for what may well be the benefits Transafe could bring to the transport industry.

[100] Mr Post points out that he was never directed by NTI to resign as Chairman of Transafe. Mr Post submits that in his response to Mr Edmonds’ email in May 2013 he even said he would resign from his position with any industry body or association if he was directed by Mr Edmonds in writing to do so. Mr Post argues then that NTI cannot later complain about his ongoing involvement with Transafe. This argument however ignores the fact that NTI never sought for Mr Post to cease all involvement with Transafe. Rather they were concerned to ensure that what involvement he had with Transafe was not and did not become a conflict of interest with his obligations as an employee of NTI. To that end they told him he should cease identifying himself as an employee of NTI in Transafe materials, not to use his NTI email address for Transafe business and not to attend to Transafe business during NTI working hours.

[101] If Mr Post had responded to NTI’s concerns in a proper manner, taken these remedial actions and ensured any future involvement with Transafe did not involve any conflict with NTI’s interests or his duty to NTI then there was no need for him to resign from his position with Transafe. The evidence is however that Mr Post did not heed his Managers’ directions to any real extent.

[102] Mr Post’s offer to resign from any position with an association or industry body if directed in writing is suggestive of him recognising the right of NTI to direct him regarding their concerns over Transafe however his subsequent actions quite to the contrary, demonstrate that he did not accept NTI’s directions to him in regard to his involvement with Transafe.

[103] Mr Post submits that the respondent’s concerns about Transafe which Mr Edmonds explained to him in detail were unfounded. Accordingly Mr Post argued that his involvement with Transafe did not conflict with his duties to his employer NTI. The response to this is simply that Mr Post was a Risk Surveyor. It was not his role to decide upon which strategic alliances NTI chose to enter into, or not, with associations and industry bodies nor for him to decide whether the establishment of Transafe created any potential conflict with the interests of NTI. That was the responsibility of other Managers within NTI. These Managers had formed the view that Transafe’s establishment and growth had the potential to negatively affect NTI’s strategic alliance with WARTA which had the potential to reduce the benefit of this alliance to NTI. Consequently NTI did not wish to be seen to be supporting Transafe. This was explained to Mr Post and Mr Post was obliged to accept that this was the direction NTI would pursue. Mr Post was not entitled to substitute his alternative belief and ignore his Managers’ directions.

[104] The evidence is that the evolution and membership recruitment activity of Transafe did in due course concern WARTA. Representatives of WARTA did complain about Mr Post’s involvement with Transafe as an NTI employee which they viewed as inconsistent with the strategic alliance WARTA had with NTI. Separately another concern NTI had about Transafe’s existence was a risk that it may become a beachhead for a competitor of NTI to use to market its insurance products to the transport industry. The evidence is that this has indeed come to pass and Zürich insurance is currently a sponsor of Transafe. Clearly then NTI’s concerns which were raised with Mr Post that there may be future conflicts between the interests of Transafe and the interests of NTI were reasonably held. Mr Post’s ongoing involvement with Transafe, which the evidence demonstrates was extensive, did involve a conflict with the duties he owed as an employee to NTI.

[105] Mr Post’s argues that all his activities to do with Transafe should be viewed as having being conducted in his own time because he worked lengthy hours for NTI. There is no evidence that Mr Post was working lengthy hours at NTI’s direction. There is some evidence to the effect that Mr Post preferred to drive around the State of Western Australia rather than fly and this explained some of the time he spent on the job. There is no evidence that Mr Post ever had authority to undertake the extensive activity for Transafe during NTI’s normal working hours that he did.

Valid reason

[106] Mr Post ignored directions from NTI’s Managers that his involvement with Transafe must be managed to avoid any conflict between the interests of NTI and the interests he was pursuing on behalf of Transafe and to ensure that he was complying with the obligations in his employment contract. Other than a disclaimer referring to Transafe found in some emails sent by Mr Post the evidence is he took no action to comply with his Managers’ directions in this regard. Instead he continued to pursue his interests in Transafe contrary to the interests of NTI and in ways that were in conflict with his employment obligations to NTI.

[107] Specifically Mr Post used NTI’s email and computer systems for Transafe activities without authority over an extended period.

[108] A significant amount of email traffic relating to Transafe was sent from and to Mr Post’s email address much of that during normal working hours at NTI. Much of this occurred after he had been specifically told by Mr McAleese in May 2014 that he should get a personal email address for Transafe matters and not use NTI’s email.

[109] Emails were sent by Mr Post to NTI clients and other businesses he was dealing with on behalf of NTI encouraging attendance at Transafe events and sending Transafe promotional material.

[110] Mr Post saved on his H drive material relating to Transafe including membership lists, rules of association, business plans, agendas and minutes of meetings in a folder titled “Transafe”.

[111] In pursuing his Transafe interests Mr Post misused confidential NTI information. He sent emails to his personal email address attaching NTI property/confidential information. Mr Post used confidential NTI information to create the Potential Members List with the intention that the list be used by Transafe to assist it recruit new members.

[112] On numerous occasions Mr Post received and accepted meeting invitations by email for Transafe meetings or events, many during normal NTI working hours. He attended a number of these without permission for him to attend to non-NTI business during working hours.

[113] Mr Post, without permission from NTI, attended a full day Transafe conference which he chaired on a normal working day on which he was paid by NTI.

[114] Mr Post’s conduct detailed above gave rise to a conflict between his personal interest as Chairman of Transafe and his duties to his employer NTI.

[115] His actions were all deliberate and wilful and carried out in full knowledge that his employer believed there was a likely conflict of interest between his obligations to NTI as an employee and his involvement with Transafe and that he should take steps to avoid this. This was ongoing conduct over a lengthy period clearly inconsistent with the continuation of the employment contract.

I am satisfied that this conduct was serious misconduct. This conduct was a valid reason for the dismissal of Mr Post.

Notification of the reasons for dismissal

[116] The reasons for which Mr Post was ultimately dismissed were detailed in a series of show cause letters prior to the decision to dismiss him and in the final termination letter.

Opportunity to respond

[117] The series of show cause letters sent to Mr Post provided him with a full opportunity to respond to the reasons for which he was dismissed. Extensions of time to reply were requested and agreed to. Mr Post took up that opportunity to respond and aided by his solicitors provided lengthy and detailed written responses to the show cause letters.

Refusal to allow a support person

[118] There is no evidence that the applicant made a request for a support person at any stage nor in any event that such a request was refused by the respondent.

Size of the respondent’s enterprise and availability of human resource specialists

[119] The respondent is a large employer which has dedicated human resource specialists. The disciplinary process undertaken by the respondent was appropriate in the circumstances and not in any way deficient.

Other relevant factors

[120] Mr Post had been employed for approximately eight years and in terms of his work performance as a Risk Surveyor the respondent had no complaints about him.

Conclusion

[121] There are no factors in this case that support a finding that the dismissal of Mr Post was harsh, unjust or unreasonable. The dismissal of Mr Post was not unfair. Accordingly this application will be dismissed and an order to that effect will now be issued.

COMMISSIONER

Appearances:

S Post on his own behalf.

C Murdoch of Counsel for the respondent.

Hearing details:

2015.

Perth:

April 22 and 23.

 1   Exhibit A6, Attachment 1.

 2   Ibid., Attachment 5.

 3   Transcript at PN225 to PN233.

 4   Ibid., at PN267 to PN272.

 5   Ibid., at PN300 to PN305.

 6   Ibid., at PN397.

 7   Exhibit R5 at paragraph 33(k).

 8   Ibid., Document at page 246.

 9   Exhibit R4.

 10   Exhibit A6 atparagraphs 97 to 101.

 11   Transcript at PN1004.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR568212>