Travis Gladman v Beachport Corporation Pty Ltd T/A Beachport Liquid Minerals

[2016] FWC 7903

[2016] FWC 7903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Travis Gladman
v
Beachport Corporation Pty Ltd T/A Beachport Liquid Minerals
(U2016/9626)

DEPUTY PRESIDENT BARTEL ADELAIDE, 2 NOVEMBER 2016

Termination of Employment - whether dismissal harsh, unjust or unreasonable.

Introduction

[1] Mr Travis Gladman (the applicant) has filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act), following the cessation of his employment with Beachport Corporation Pty Ltd T/A Beachport Liquid Minerals (Beachport or the employer).

[2] The employer regarded the applicant as having resigned his employment at a meeting held on the morning of 4 July 2016. While the applicant did not specifically state that he would resign, this was the impression he gave. In any event, there is no dispute that the applicant was under the threat of dismissal at the time. It was not contested, and I am satisfied that the applicant was dismissed within the meaning of s.386(1) of the Act.

[3] The applicant commenced employment on 18 May 2015, after a period of two months working as a contractor for Beachport.

[4] The reasons for dismissal cited by the employer in the Form F3 Response Form are:

• Repeated lateness for work, which was the subject of a warning;



• Repeated failure to follow directions, and in particular, a failure to seek approval for important correspondence, which was the subject of a warning;



• Open lack of respect for Directors and Managers and an inability to accept direction.

[5] Both parties were unrepresented 1 and the matter proceeded by way of a determinative conference at the Mount Gambier Courthouse. The applicant is a person protected from unfair dismissal and there are no jurisdictional or other barriers to the application being heard on the merits. The employer employed 15 employees at the time of the applicant’s dismissal and is not a small business employer.2

Witness evidence

[6] The applicant gave evidence. His case focussed on what he perceived to be unfair treatment by Mr Kym Sutherland, Director, Ms Kelly Nicholson, Director and to a lesser extent, Ms Colleen Tilley, General Manager, when in his view he had always worked in the best interests of Beachport. He regarded the reasons for dismissal to be without merit.

[7] An order to attend the proceedings was issued to Ryan Nicholson, Production Manager at Beachport, on the application of the applicant. His questioning of Mr Nicholson focussed on specific incidents where he believed that Mr Nicholson was responsible for getting him into trouble with management.

[8] Mr Sutherland, Ms Nicholson and Ms Tilley gave evidence for the employer. Mr Sutherland’s evidence was that the applicant had been a valued and capable employee who had performed his tasks competently and had undertaken some business development projects to a good standard. He portrayed the souring of the relationship with the applicant as a direct result of the applicant’s refusal to accept the direction and authority of the Executive team, consisting of the Directors and the General Manager. This was also the tenor of the evidence of Ms Nicholson and Ms Tilley.

Factual background

[9] Beachport is a family owned and operated business involved in the manufacture and distribution of liquid livestock supplements for cattle, sheep and horses. Ms Nicholson is the daughter of Mr Sutherland and the third Director, Ms Chris Sutherland. During the course of 2016,Ms Nicholson assumed more responsibility in the business.

[10] Ms Tilley had previously worked with the applicant and she recommended to the Directors that he be engaged. He was subsequently employed in a full time position in Administration. He reported to and worked most closely with Ms Tilley whom he regarded as a friend and also had specific obligations to the Directors.

[11] The applicant’s role involved inventory and invoicing, customer service and responsibility for business development. As part of the business development role, he was tasked to secure organic certification for Beachport’s products. This became a source of conflict between the parties.

Time keeping

[12] Ms Tilley stated that the applicant was required to be in the office at 8.00 am each day. She identified ten occasions between August 2015 and February 2016 when the applicant sent text messages to her that he would be late for work, and stated that she was not always notified in advance of any absence. Ms Tilley stated that she did not seek to escalate this issue to a warning and that she ‘covered’ for the applicant. 3

[13] However the issue came to a head on Saturday, 19 March 2016, when the applicant was to attend the South East Field Day (the Field Day) where Beachport had a stand. The Field Day was regarded as a marketing opportunity for Beachport’s products and the applicant was to meet other employees at the office at 6.30 am so that they could travel to the Field Day together. The applicant failed to attend the office as planned, and arrived at the Field Day at 11.30 am.

[14] A meeting was held on the following Monday between the applicant, Ms Tilley and Mr Sutherland. The applicant acknowledged that he had been at fault and stated that he had overslept after working late on renovations to his house. It is apparent that management made clear its disappointment with the applicant, noting that this was not the first time he had been late.

[15] According to Ms Tilley, the applicant was late on a further four occasions after this meeting took place, even though the employer had adjusted his start time to 8.30 am 4.

[16] The applicant had various responses to this issue. He stated, and Ms Tilley conceded that he made up the time at the end of the day. He believed that, apart from the Field Day, he was only late by a matter of minutes on each occasion. In his evidence to the Commission he stated that he was feeling unwell on the Saturday of the Field Day and this is why he was late. There is no evidence he raised this at the meeting held on the following Monday, or at any time prior to the hearing.

[17] Both Ms Tilley and Mr Sutherland stated that the applicant was “warned” in connection with his late attendance, but I consider that the meeting was more of a counselling session with a view to impressing upon the applicant the requirement to attend on time to fulfil his responsibilities. For example, Mr Sutherland stated that “I warned [the applicant] that being so late on the Saturday was unacceptable.” 5 Nonetheless, the applicant was put on notice in relation to his timekeeping. The circumstances surrounding his lateness to work after March 2016 were not addressed by the parties.

Compliance with directions

[18] The primary allegation against the applicant is that he refused to follow directions. In relation to organic certification for Beachport’s products, the allegation is that the applicant failed to follow directions concerning the approach he adopted with the National Association for Sustainable Agriculture Australia (NASAA) and that he failed to comply with a direction that his emails to NASAA be shown to a member of the Executive team before being sent.

[19] According to Mr Sutherland, this direction was made initially in approximately February 2016 but was repeated on at least one further occasion. It was prompted by two matters - an email the applicant sent to NASAA that divulged some of Beachport’s intellectual property and the applicant’s unnecessary pursuit of particular research. 6

[20] I am satisfied that the applicant failed to follow directions concerning the approval of emails before they were sent. He conceded as much in the following exchange:

“THE DEPUTY PRESIDENT: … Do you say that you never got an instruction that you had to actually run the email by Kym or Colleen or whoever; or is it a case that you were just told that you had to run things past the people you reported to and there was no actual specific - - -

MR GLADMAN: No, there were a couple of times where they had been specific like that.

THE DEPUTY PRESIDENT: But you didn’t think it was necessary because you had discussed the contents of the email.

MR GLADMAN: On occasions, yes. Definitely.

THE DEPUTY PRESIDENT: That’s your - - -

MR GLADMAN: Yes, definitely. I wasn’t out to go and put anything out there that would jeopardise this place. That was my biggest fear in actually doing my role, was to actually screw things up for Kym and his family.

THE DEPUTY PRESIDENT: Okay.

MR GLADMAN: So yes, I was very nervous about that the whole way. That’s why I asked so many questions to him.

THE DEPUTY PRESIDENT: Okay. And do you accept that management might have wanted to see the emails to make sure that, you know, after you’ve had these discussions about what the content should be, that they’ve been, you know, correctly conveyed?

MR GLADMAN: Look, yes, that can be a point of view and that can be - I can accept that, for sure. There’s another flip side to the story whereby, you know, you’ve got to have a little bit of belief in the employee and in their - I believe I had showed my skills already. I believe I could cope with some really - I don’t believe I ever jeopardised them at all.” 7

[21] In relation to one email to NASAA dated 22 June 2016, the applicant stated that he showed it to Ms Tilley before it was sent. This is disputed by Ms Tilley and the applicant acknowledges that he did not mention this at a meeting held on 30 June 2016 (see below) when his failure to follow directions was raised. I am satisfied that this email was forwarded to the Executive team on 26 June 2016. I also accept that the applicant sent the email to NASAA within hours of being advised by Ms Nicholson to get Mr Sutherland’s approval before it was sent.

[22] A further matter relied upon by the employer was an email sent by the applicant to a supplier. 8 The applicant had been requested to order a pallet of magnesium. He did so, but included information within the email which was unnecessary and which did not reflect well on Beachport. In my view, this matter and the content of other emails authored by the applicant that were of concern to the employer, reflect an ‘expansive’ style of communication and a failure to tailor the content to the purpose for which it is written. It is not suggested that the applicant included the additional information out of any malicious intent. Nonetheless some oversight of the applicant’s emails was not unreasonable.

[23] It is also alleged that the applicant answered the phones when he was directed not to do so. The employer was concerned that the applicant tried to address customer queries without sufficient knowledge of the relevant subject matter. The applicant stated that he would take calls when others were busy and that he considered that he dealt with the calls appropriately. He said he was unsure why management issued this direction, but did not dispute that it was issued. 9

[24] The applicant had a very strong view about his abilities and capacity to deliver on the organic certification project. He was enthusiastic. He researched texts and other material, consulted with others and readily acknowledged that Mr Sutherland, in particular, provided helpful feedback and suggestions. However he appears to have taken ‘ownership’ of the organic certification project and a gap developed between his and the Executive teams’ expectations of how it should proceed. When the Executive team issued directions to the applicant to wrest back some control of the process by, for example, requiring his emails to NASAA to be approved before sending, the applicant viewed this as unnecessary and akin to a witch hunt. 10

29 June 2016

[25] On 29 June 2016 the applicant had a discussion with Mr Sutherland concerning issues that were arising at work. Mr Sutherland had been advised by Ms Nicholson about the applicant’s email to NASAA on 22 June 2016, and that she was frustrated by his contravention of her directions. The applicant stated that he wanted to meet with Mr Sutherland to discuss issues he was having at work, particularly whether he could be better utilised within Beachport. 11

[26] It is clear that there was at least some discussion about the applicant’s relationship with Ms Nicholson, as directly afterwards the applicant approached her to reassure her that he wanted a good working relationship and that they could sort out any difficulties between them. He then reported this to Mr Sutherland.

[27] A meeting of the Executive team was held that evening, where Mr Sutherland reported on the conversation he had with the applicant that day. It was resolved that a meeting would be held with the applicant on the following day to issue a written warning in relation to not following directions.

30 June 2016

[28] Ms Tilley and Ms Nicholson attended the meeting. Ms Nicholson had prepared a script for the meeting which identified the following concerns as the basis of the warning to be issued, including:

• Doing way too much work on something that is not required or discussed. It is our money paying for the time you spend on work.



• I feel like a need to write down (email) everything so there is traceability, this can be time consuming and impractical.



• Time spent recently discussing concerns with the GM & Directors. We have learnt that these issues need to be addressed straight away ...” 12

[29] The meeting did not go as planned. Ms Nicholson stated that the applicant was “very argumentative” and challenged her statements. For example, when she referred to the email of 22 June 2016 the applicant asked her to show him where the direction that he must seek approval for his emails had been put in writing. 13 By her own admission, Ms Nicholson became upset and was unsure how to get the meeting ‘back on track’. The applicant was advised that a written warning would be issued.

[30] The applicant stated that he was confused by the meeting, as he considered that matters had been dealt with on the previous day with Mr Sutherland. He acknowledges that he did challenge statements made by Ms Nicholson, but stated that he did so in a respectful way. He said he was not abusive or rude but was entitled to see the evidence underpinning the criticisms which were levelled at him, which he believed were unjustified.

[31] It is evident that the applicant felt a sense of frustration with his past treatment by Ms Nicholson. He considered that previous directions and criticisms were not warranted and that there had been a deliberate decision to overlook the positive contribution he had made. An example of this, which was clearly a source of significant aggravation to the applicant, concerned a saving of $17,000 that he secured for Beachport. This had been achieved by advance ordering of products. The saving was acknowledged by Ms Tilley who thanked the applicant and reported the savings to the Directors. The applicant was concerned that Ms Nicholson did not personally thank him for his achievement.

[32] He raised this at the meeting on 30 June 2016 and in response, Ms Nicholson indicated that she had high expectations of herself and others and that it may be a ‘flaw’ in her approach that she does not provide feedback on individual achievements. The applicant perceived this response as evidence that the Directors had taken a deliberate decision not to thank him and that he was singled out for less favourable treatment than other employees. The evidence does not support this interpretation.

[33] I am satisfied that the applicant was not abusive or disrespectful in the meeting. Ms Nicholson conceded that she was inexperienced in disciplinary processes and when her statements were challenged by the applicant she became flustered. A more experienced person would have come to the meeting armed with relevant facts, dates and documents. In my view, part of the problem may have been a failure to outline the chronology of events in terms of when specific directions were issued and when and how it was alleged that the directions were contravened by the applicant.

The evening of 30 June 2016

[34] Ms Tilley received a call from the applicant several hours after the meeting concluded. She was still at work at the time. Ms Tilley stated that the conversation was heated and that she swore at the applicant as he had interrupted her while she was finalising some work. It appears that he had called to ‘blow off steam” about the meeting.

[35] Ms Tilley contends that in the course of this conversation, the applicant said words to the effect that he knew Beachport’s intellectual property. Ms Tilley interpreted this as a threat and took steps to block the applicant’s access to data and removed formula sheets from the premises.

[36] The applicant agrees that he raised the intellectual property. He stated that he said words to the effect that he would expect Beachport to treat him better given his knowledge of their intellectual property, but that this statement was then qualified by words to the effect that he would never use that information to harm Beachport. Ms Tilley denies that this qualification was made.

[37] I am satisfied that the applicant raised his knowledge of the respondent’s intellectual property as an intended threat, albeit an empty one. I do not accept that the statement was qualified as stated by the applicant, but even if it was, the fact of the qualification indicates the threat carried by the initial statement. There was no explanation put forward by the applicant for raising the issue in the first place.

[38] Later that evening Ms Tilley received a text from the applicant. It included derogatory remarks about Mr Sutherland, and particularly Ms Nicholson, whom he described as “a dumb arse bitch”. The Directors were referred to as “fucken scumbags”. 14

[39] The applicant’s evidence in relation to his text was that it was personal in nature and sent to Ms Tilley as a friend. He regarded Ms Tilley’s actions in discussing the text with the other members of the Executive team (see below) as an act of betrayal and said that he and Ms Tilley had previously had discussions where this type of language had been used. This was rejected by Ms Tilley, who stated that there was discussion from time to time with the applicant which may have referred to other staff members, but nothing that approached the content of the text message.

3 July 2016

[40] Ms Tilley brought the text message and the perceived threat to Beachport’s intellectual property to the Directors’ attention. A meeting of the Executive team took place on Sunday 3 July 2016 where it was resolved that the applicant’s continued employment was untenable.

[41] On 3 July 2016 the applicant sent a text to Ms Tilley where he apologised for his “little tantrum tirade”. He stated that he didn’t understand the complaints against him but that he would apologise for what he was accused of. He also stated that he was just trying to get results to benefit Beachport and possibly secure a pay rise if successful. 15

4 July 2016

[42] The applicant was called to a meeting on 4 July 2016 with the Executive team, where he was advised that his continued employment was untenable. He was given the option of resigning or being dismissed and this topic appeared to dominate the meeting. At one point the applicant asked Ms Tilley what he should do and she suggested that a resignation would be preferable in terms of him securing other employment. The employer considered that the applicant had accepted this advice. As noted earlier, little turns on this. The applicant received two weeks’ payment on termination in addition to his accrued leave. 16

Consideration

[43] Section 387 of the Act sets out the matters that the Commission must take into account in considering 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.”

Was there a valid reason for dismissal – s.387(a)

[44] Whether there was a valid reason to dismiss is a matter not only to be considered but to be accorded some significance in determining if the dismissal is harsh, unjust or unreasonable. The Commission is required to conduct an objective analysis of all relevant facts in determining whether there was a valid or sound or defensible reason to dismiss. 17

[45] The applicant’s failure to follow directions, and in particular his blatant disregard for the instruction issued by Ms Nicholson on 22 June 2016, could have arguably constituted grounds for dismissal, although the employer was content to issue a written warning.

[46] I have found that the statement made by the applicant in his phone call to Ms Tilley on 30 June 2016 concerning the respondent’s intellectual property was made as a threat, although I doubt that the applicant had any intention of acting upon it. Together with the disparaging comments made about Mr Sutherland and particularly about Ms Nicholson in the text message of the same date, the applicant’s conduct provided reasonable grounds for the employer to come to the position that his continued employment was untenable. The fact that the applicant regarded the text message as a personal one between himself and Ms Tilley reflects a serious lack of perspective on her role and obligations within the organisation.

[47] I accept that the applicant was upset when he sent the text and that he apologised to Ms Tilley a few days later. While this indicates remorse for his comments it also indicates that the applicant knew he had ‘overstepped the mark’.

[48] I find that there was a valid reason for dismissal.

Procedural issues – ss.387(b), (c) and (d)

[49] Mr Sutherland acknowledged that there were problems with the procedure leading to the dismissal. 18 The applicant was given no opportunity to respond to the reasons for dismissal and no opportunity to seek advice; the assistance of a support person; and/or the opportunity to present a case for his continued employment.

Prior warnings related to unsatisfactory performance – s.387(e)

[50] I have dealt with the employer’s intention to issue a written warning to the applicant in relation to his refusal to follow directions however this was overtaken by the events on the evening of 30 June 2016.

Size of the employer and access to HR expertise – ss.387(f) and (g)

[51] The employer engaged 15 employees as at the date of the applicant’s dismissal. I am satisfied that the size of the employer and lack of Human Resource (HR) expertise led to the procedural errors referred to above.

[52] Beachport started from humble beginnings but now has a sizeable turnover. It has grown to a point where it has the capacity to implement a more structured HR regime so as to ensure procedural fairness to its employees and also to provide guidance for those charged with responsibility over HR matters.

[53] Accordingly, the size of the employer and the lack of access to HR advice provide only a limited defence to the procedural failings.

Other relevant matters – s.387(h)

[54] The applicant received two weeks’ wages in connection with the cessation of his employment. There are no other matters that are relevant to my consideration.

Conclusion

[55] The procedural failings in this matter are significant. In many cases they would be sufficient to render a dismissal harsh, unjust or unreasonable. This is because procedural fairness to an employee is not a mere technical requirement but something that is designed to ensure that a fair decision is reached by taking into account all relevant circumstances, not just those considered relevant by the employer. In this case Beachport dismissed the applicant without giving him the opportunity to put his view in relation to the events of 30 June 2016, to plead his case for continued employment or to discuss the impact of a potential dismissal.

[56] I have also taken into account that the applicant was not without positive attributes. I accept that he took his employment seriously and was genuine and enthusiastic in his desire to achieve organic certification for Beachport’s products and that he performed the remainder of his administrative tasks with the same positive attitude. The applicant has suffered financial hardship as a consequence of his dismissal. He lives in a regional area of the State with more limited employment opportunities.

[57] That having been said, the applicant’s rejection of Ms Nicholson’s authority, by his conduct as well as his words of the text message, was inconsistent with his continued employment. Had the employer followed a proper process I am satisfied that the outcome would have been the same, and payment to the applicant of two weeks’ wages on the termination of his employment has covered any loss he would have otherwise suffered.

[58] Being a relatively small organisation, Beachport relies heavily on productive working relationships between staff and the Executive team. In this case there was an irretrievable breakdown in the relationship between the applicant and the Directors.

[59] In weighing all the factors required to be taken into account under s.387 of the Act, I determine that the dismissal was not harsh, unjust or unreasonable. The application for an unfair dismissal remedy is dismissed, and an order to this effect is issued with this decision.

DEPUTY PRESIDENT

Appearances:

Mr T Gladman in person

Mr K Sutherland for the Respondent

Hearing details:

2016:

Mount Gambier;

October 17.

 1   An application by the employer seeking permission to be represented by a lawyer was declined.

 2   As defined in s.23 of the Act.

 3   At PN1382.

 4   At PN964.

 5   Ex R1 Statement of Kym Sutherland, para 11.

 6   PN952-962.

 7   PN553-562.

 8   Ex R2 Statement of Kelly Nicholson, Attach KN-4.

 9   PN326-328.

 10   At PN133-139.

 11   At PN341-342.

 12   Ex R2, Attach KN-6.

 13   Ex R2 at para’s 25 and 23.

 14   Ex R3 Statement of Colleen Tilley, Attach CT-2.

 15   As above.

 16   Ex R4.

 17   Edwards v Guidice [1999] FCA 1836 at [5] per Moore J; Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371; Rode v Burwood Mitsubishi, (1999) (unreported, AIRC (FB), R4471, 11 May 1999).

 18   PN1389-1393.

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