DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Hunt
v
Coomealla Health Aboriginal Corporation
(U2018/1928)

Application for an unfair dismissal remedy - domestic violence - summary dismissal - whether conduct related to employment - breach of employer’s code of conduct - valid reason - application dismissed

[1] This decision concerns an application made by Mr Aaron Hunt for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act).

[2] Mr Hunt was employed by Coomealla Health Aboriginal Corporation (CHAC) as a trainee health practitioner. One of his duties was to run a weekly men’s group addressing health issues in the Aboriginal community, including the issue of domestic violence. He also worked with victims of domestic violence. It is not in dispute that on 9 February 2018 Mr Hunt assaulted his partner. He was subsequently arrested and charged by Victoria Police with intentionally causing injury.

[3] Mr Hunt was summarily dismissed on 12 February 2018. He contends that his dismissal was unfair because it related to conduct that occurred outside the workplace, and because he was affected by alcohol and medication at the time of the incident. He seeks an order for compensation. CHAC says that Mr Hunt’s conduct breached his contract of employment and CHAC’s Code of Conduct, and that it was antithetical to the role he was employed to perform.

[4] The factual background is not contested and can be briefly stated.

[5] CHAC is an Aboriginal Community Controlled Health Service, one of over 140 such organisations around Australia. It is an association incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. CHAC aims to provide accessible and culturally appropriate health services in Wentworth and Balranald Shires in New South Wales. It is funded by the Commonwealth and New South Wales departments of health. As well as providing primary medical care, CHAC carries out promotional activities to raise awareness of health issues affecting the Aboriginal community. This is done through community groups, such as women’s, men’s and elders’ groups.

[6] CHAC’s health promotion activities address problems that include drugs, alcohol and domestic violence. The organisation has an overarching aim to reduce domestic violence, both through holistic primary care and as part of its health promotion function, taking into account the link between domestic violence and social and economic determinants of health.

[7] Mr Hunt was employed by CHAC on 29 January 2013 in the role of ‘Aboriginal health worker (mental health)’. On 29 August 2017, Mr Hunt signed another contract of employment, which described his position as ‘social and emotional wellbeing worker and Centrelink assistant.’ 1 At the hearing, Mr Hunt produced a further contract of employment, dated 3 October 2017.2 Although the signature page was missing, CHAC recognised the document and did not dispute that it applied to Mr Hunt’s employment at the time of his dismissal. This contract described Mr Hunt’s position as ‘trainee Aboriginal health practitioner – primary care / Centrelink support officer’.

[8] Attached to Mr Hunt’s most recent contract was a position description. 3 The majority of the tasks listed in it relate to Mr Hunt’s trainee health practitioner role; Centrelink-related activities are required only on an ‘as needed basis’. Mr Hunt’s duties as a trainee health practitioner included developing and implementing ‘culturally appropriate health promotion, education and prevention programs targeting key areas of health’; and overseeing and implementing the CHAC men’s group, ‘following themes and deliverables as outlined in the CHAC Health Promotion Plan’.4 The Plan for 2017-2018 contains a number of references to activities related to domestic violence. For example, May is listed as ‘domestic violence prevention month,’ during which the men’s group discusses types of domestic violence, with the participation of the police and the domestic violence unit.

[9] Mr Hunt acknowledged that he physically assaulted his partner. His own words were that he committed family violence whilst being under the influence of alcohol and on new medication for a recently diagnosed mental health issue. 5 He said he was highly stressed and had suffered a breakdown.

[10] Mr Stephen Parr is employed by CHAC as the organisation’s quality and compliance officer. He learnt of the assault from the supervisor of Mr Hunt’s partner, in the course of a social discussion on 11 February 2018. The following day a meeting of CHAC management was convened to discuss the issue. In attendance were Mr Parr, Mr Barry Stewart, the chief executive officer of CHAC, Ms Summer Hunt, the deputy CEO, and Ms Alesha Rowe. Ms Rowe told her colleagues that she had spoken with Mr Hunt’s partner about the incident, and that she understood Mr Hunt was in the police lockup in Mildura. It was determined that a meeting needed to be held with Mr Hunt, and that if he had indeed assaulted his partner, CHAC could not continue to employ him.

[11] On 12 February 2018, Mr Hunt attended a meeting with the four CHAC representatives mentioned above. Mr Stewart asked Mr Hunt what had happened over the weekend, and Mr Hunt said words to the effect that he had lost control and beaten up his partner. Mr Stewart said words to the effect that CHAC could not have a member of staff doing that sort of thing, especially one who worked in the men’s health role. 6 He gave Mr Hunt a termination letter. After the meeting, Mr Hunt said to Mr Stewart words to the effect of ‘Sorry Baz, I’ve stuffed up.’ He shook Mr Stewart’s hand and left.7

Initial matters to be considered

[12] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Hunt’s application. There is no dispute between the parties, and I am satisfied, of the following. First, Mr Hunt’s application was made within the 21 day period required by s.394(2) of the Act. Secondly, Mr Hunt was a person protected from unfair dismissal, as he earned less than the high income threshold (s.382). Thirdly, Mr Hunt’s dismissal was not a case of genuine redundancy. Fourthly, no question of compliance with the Small Business Fair Dismissal Code arises.

[13] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable (s.385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s.387. I will address each of these in turn.

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

[14] The Act directs consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is ‘sound, defensible or well-founded.’ 8

[15] The Commission does not stand in the shoes of the employer and determine what the Commission would do if it had been in the employer’s position. 9 The question that the Commission must address is whether there was a valid reason for dismissal, in the sense both that there was a good or sufficient reason, and a substantiated reason.

[16] In cases relating to alleged misconduct, the Commission must make a finding on the evidence as to whether, on the balance of probabilities, the conduct occurred. 10 In the present matter, what occurred is not in contest. However, Mr Hunt contends, in effect, that there was no valid reason for his dismissal because it related to conduct outside the workplace, and that the conduct did not have a sufficient connection to the workplace.

[17] Mr Hunt’s contract of employment dated 3 October 2017 contained a clause stating that his employment conditions include the provisions of CHAC policies and procedures as amended from time to time. 11 One such policy was the ‘CHAC Code of Conduct’. The preamble to the Code of Conduct states that at CHAC ‘it is important that at all times you act in a manner that enhances community confidence in (the) organisation’.12 Clause 4.3 of the Code states: ‘I will not act violently or knowingly place myself at unnecessary risk of violence.’ This provision of the Code of Conduct is not confined to work-related conduct. In this regard it may be contrasted with other provisions of the Code, such as those relating to discrimination, harassment and bullying (clause 4.1 and 4.2), the operation of which are referrable to conduct ‘in connection with my duties.’ Clause 4.3 however applies at all times.

[18] The position description attached to Mr Hunt’s penultimate contract of employment, dated 29 August 2017, contained a final page entitled ‘applicant’s statement’, with a sentence that read: ‘I also hereby agree to abide by the policies, procedures, rules and guidelines as well as practices of the Coomealla Health Aboriginal Corporation.’ It is signed by Mr Hunt and dated. This final page does not appear in the version of the position description attached to the contract of employment dated 3 October 2017. 13 It was not contested that such a page exists. Irrespective of this, it is clear that the Code of Conduct is a policy of CHAC that Mr Hunt was contractually bound to observe. Mr Hunt acknowledged at the hearing that the Code of Conduct applied to his employment at the time of his dismissal in February 2018.

[19] Mr Hunt’s contract of employment stated that CHAC may immediately terminate the agreement upon giving written notice to him in the event either of a breach of the agreement, or misconduct bringing him into ‘serious disrepute.’ Quite plainly, Mr Hunt breached his contractual obligation to observe CHAC policies, and in particular the obligation not to act violently. His conduct also brought him into serious disrepute. His employment was terminated for a reason, and in the manner, contemplated by the contract.

[20] In my view, Mr Hunt’s breach of contract in this instance was repudiatory, and amounted to serious misconduct. It constituted a valid reason for termination. It is not strictly speaking necessary for me to consider further the question of the connection with the employment relationship. That connection is established by Mr Hunt’s fundamental breach of an express term of his contract of employment. However for completeness I note the following.

[21] In Rose v Telstra Corporation, 14 the Commission stated that the circumstances in which ‘out of hours’ conduct might constitute a valid reason for dismissal were limited to cases where the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee, damage the employer’s interests, or is incompatible with the employee’s duties as an employee. The Commission concluded that, in essence the relevant conduct must indicate a repudiation of the employment contract by the employee.

[22] In the present case, Mr Hunt’s conduct in assaulting his partner directly damaged CHAC’s interests in addressing domestic violence in the Aboriginal community in the Wentworth and Balranald Shire areas. As CHAC submitted, Mr Hunt did the very thing that he was employed to help other Aboriginal men avoid doing. CHAC contended, and I accept, that its credibility would have been impaired had it not dismissed Mr Hunt, and that its relationships with partner organisations would have been adversely affected. In this regard, I note that within two days of the assault, two of four relevant CHAC staff members had learned of the incident from separate sources within the community. In those circumstances, it was reasonable for CHAC to assume that word of Mr Hunt’s conduct would spread among its clients. That assumption turned out to be correct, as Mr Hunt noted in his own submissions.

[23] Furthermore, Mr Hunt’s own credibility in relation to the issue of domestic violence has been severely compromised. He led the men’s group, which focused among other things on questions of family violence. CHAC explained at the hearing that Mr Hunt was also sometimes required to assist women who had been victims of domestic violence. They could not be expected to feel comfortable dealing with a person who had engaged in such conduct.

[24] Plainly in this case, irrespective of Mr Hunt’s breach of an express provision in his contract, there was a sufficient connection between Mr Hunt’s conduct and his employment to bring the circumstances within the principles articulated in Rose. Mr Hunt’s assault on his partner was fundamentally antithetical to his role.

[25] CHAC had a valid reason for dismissing Mr Hunt from his employment. I will now address the other considerations that the Commission is required by s.387 to take into account in assessing whether a dismissal was harsh, unjust or unreasonable.

Notification of reasons for dismissal and opportunity to respond (ss.387(b) and (c))

[26] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to conduct or performance.

[27] To tell against a conclusion that a dismissal was unfair, notification of the reason for dismissal should occur before the decision to dismiss is taken, 15 and be made in explicit, plain and clear terms.16 The question of whether an employee had an opportunity to respond to reasons relating to conduct or performance should be understood in a common sense way; the focus is on whether the employee is treated fairly, rather than on any formality.17

[28] At the meeting of 12 February 2018, Mr Hunt was told of the reason for his dismissal, after having been asked to explain what had occurred over the weekend. He was thereby given an opportunity to respond to this reason for dismissal. His response was to admit that the assault had taken place, although he could not remember exactly what had occurred. Only then was he given the letter of termination.

[29] I am satisfied that Mr Hunt was notified of the reason for his dismissal (specifically, his conduct in engaging in a physical assault of his partner), and that he was afforded a reasonable opportunity to respond to the reason for his dismissal.

Considerations in ss.387(d)-(g): support person, warning, size of enterprise etc.

[30] There is no suggestion that CHAC refused to allow Mr Hunt to have a support person present to assist in discussions relating to the dismissal (s.387(d)). Mr Hunt requested that Ms Rowe attend the meeting to support him and she did so.

[31] If a dismissal relates to unsatisfactory performance, s.387(e) requires the Commission to consider whether the person has been warned about it prior to the dismissal. However the present matter concerns conduct rather than performance. It was not necessary for Mr Hunt to have been warned about the matter for which he was dismissed.

[32] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss.387(f) and (g)).

[33] CHAC noted in its submissions that it employs some 22 people. It is not a small business employer for the purposes of the Act but it does not have a dedicated human resources employee. CHAC said that any deficiency in procedure was the result of inexperience on the part of the persons involved. However, I do not consider there to have been any procedural shortcoming in this matter. Mr Hunt said that the presence of a pre-prepared termination letter at the meeting of 12 February 2018 showed that CHAC had made up its mind in advance. Mr Stewart explained that CHAC considered it likely that the conduct had occurred, and for this reason prepared the termination letter in advance. However, he said that if Mr Hunt had denied the allegations, he would not have proceeded to dismiss him at the meeting.

[34] In my view, the considerations in sections 387(f) and (g) do not carry weight in the analysis of whether Mr Hunt’s dismissal was unfair.

Any other matters the Commission considers relevant (s.387(h))

[35] In determining whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters it considers relevant.

[36] It is well established that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for dismissal. The Commission should consider all of the circumstances, and weigh the gravity of the misconduct and other circumstances telling against a dismissal being unfair with any mitigating circumstances and other relevant matters that might support the applicant’s claim that the dismissal was harsh, unjust or unreasonable. 18

[37] The gravity of an employee’s conduct and the proportionality of dismissal to that conduct are important matters to be taken into account. There can be no doubt whatsoever that an act of family violence is of the utmost seriousness on many different levels, including, in this case, the employment relationship. Mr Hunt was obligated through his contract of employment not to engage in violent conduct at any time. This requirement was entirely reasonable, given the objectives of the organisation Mr Hunt worked for and the role he was employed to perform.

[38] Mr Hunt contends that there are mitigating circumstances. He says that he was suffering from mental health problems at the time of the assault, and that he was intoxicated. He cannot remember the incident clearly, and submits that it was completely out of character. He says that he was also under the effect of new medication for his mental health conditions.

[39] There was no medical evidence offered to support Mr Hunt’s claim that he was suffering from a clinically confirmed mental illness at the time he assaulted his partner. Nor is there any evidentiary basis to form a conclusion about links between the assault and Mr Hunt’s mental health situation and his medication. Nevertheless, I am prepared to accept Mr Hunt’s own evidence that he was suffering from mental health problems at the time of the incident. I have taken this into account in considering whether the dismissal was unfair.

[40] I do not accept the contention that Mr Hunt’s being under the influence of alcohol during the assault is a mitigating factor. I agree with the statement of Anderson DP in Gosek No 2 that consumption of alcohol does not excuse misconduct, even if it might partially explain it. 19 I note that in the present case, CHAC’s health promotion activities address not only domestic violence, but also problems related to alcohol.

[41] In his written submissions, Mr Hunt stated that CHAC had suggested to him that his employment could continue if he was not convicted on the criminal charges and he remained able to work with children. However, these statements are not consistent with the accounts of the termination meeting given by the three CHAC witnesses, whose evidence I accept.

[42] Mr Hunt took issue with the fact that CHAC learnt of the incident from his partner and her work supervisor, and formed a view about his situation before it had spoken with him about the matter. It is true that Mr Stewart prepared the termination letter in advance of the final meeting, however it was not given to Mr Hunt until after CHAC had heard his version of events. Mr Hunt acknowledged to CHAC that he had assaulted his partner and did not dispute the facts that CHAC relied on to terminate his employment.

[43] I have taken account of Mr Hunt’s personal circumstances. He worked for CHAC for some five years, and save for one written warning, had a good employment record. Mr Hunt explained that he is suffering from mental health conditions, including depression and anxiety. He is in debt and unable to pay bills.

[44] I have taken into consideration the fact that Mr Hunt has been honest about his conduct, and I accept that he bitterly regrets it. I also note Mr Hunt’s submission that he started the CHAC men’s group, and has assisted many local indigenous men of all ages. CHAC did not dispute that Mr Hunt had been a good employee. Mr Hunt also contended that he has more to offer the community, given his experience and perspective now as someone who has done the wrong thing. This may be the case. But CHAC could not be expected to continue Mr Hunt’s employment following his assault of his partner. Its decision to dismiss him was justified, proportionate and fair.

Conclusion

[45] I am satisfied that there was a valid reason for Mr Hunt’s dismissal, and that the manner in which the dismissal was effected was not attenuated with procedural deficiencies or other unfairness. The dismissal was not disproportionate to the conduct, which constituted a fundamental breach of his contract of employment. The personal circumstances of Mr Hunt are not such as to outweigh the gravity of his conduct.

[46] Taking into account all of the circumstances and the considerations in s.387, I consider that the dismissal of Mr Hunt was not harsh, unjust or unreasonable and that accordingly his dismissal was not unfair for the purposes of s.385 of the Act.

[47] The application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr A. Hunt for himself

Mr T. Wolff for Coomealla Health Aboriginal Corporation

Hearing details:

2018

Mildura

5 June

 1   Letter of offer dated 29 August 2017, attached to the witness statement of Stephen Parr

 2   Exhibit A2

 3   Exhibit A3

 4   Ibid, page 2

 5   Written submission of Aaron Hunt, 11 April 2018

 6   Witness statement of Stephen Parr, paragraphs 22 and 23; witness statement of Barry Stewart, paragraph 6

 7   Witness statement of Barry Stewart, paragraph 8

 8   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 9   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

 10   Edwards v Giudice (1999) 94 FCR 561, at 564; King v Freshmore (Vic) Pty Ltd, AIRCFB, Print S4213 [24]

 11   Exhibit A2, page 3

 12   Exhibit R5, page 1

 13   Exhibit A3

 14   Print Q9292 [1998] AIRC 1592

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

 16   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 17   RMIT v Asher (2010) 194 IR 1 at 14-15

 18   B v Australian Postal Corporation (2013) 238 IR 1

 19   Illawarra Coal Holdings Pty Ltd t/a South 32 v Matthew Gosek, [2018] FWCFB 1829, at [125]

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