[2012] FWA 3043 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Joseph Fagan
v
Department of Human Services
(U2011/7948)
COMMISSIONER CRIBB |
MELBOURNE, 19 APRIL 2012 |
Application for unfair dismissal remedy.
[1] Mr Joseph Fagan (the applicant) has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that the termination of his employment by the Department of Human Services (the respondent) was harsh, unjust or unreasonable. Mr Fagan is seeking a remedy in respect of his dismissal.
[2] There was a telephone conciliation conference on 21 June 2011 which was unsuccessful. The arbitration hearing took place on Tuesday 4 October 2011. Mr Fagan was represented by Ms D Salinger, Industrial Officer, Community and Public Sector Union (CPSU) and the respondent by Mr C O'Grady, of counsel.
THE EVIDENCE
[3] This matter progressed on the basis of a Statement 1 of Agreed/Not Opposed Facts which had been prepared by the parties. Written and oral submissions were provided during the hearing. There were no witnesses called.
APPLICANT’S SUBMISSIONS
[4] It was submitted by Ms Salinger that Mr Fagan had not taken any steps to find alternative employment and has not earned any money. 2
[5] The union contended that Mr Fagan’s dismissal was harsh and unreasonable and the Tribunal was taken to the High Court case of Byrne and Frew v Australian Airlines Ltd. 3 Reference was also made to Cosco Holdings Pty Ltd v Thu Thi Van Do4 as authority regarding the statutory construction of “valid reason” together with union's argument regarding differential treatment in comparable circumstances.5
19 May 2010 incident
[6] It was stated by Ms Salinger that it is agreed that, on 19 May 2010, Mr Fagan was working as night staff at the Department of Human Services, Melbourne Juvenile Justice Centre at Parkville (the Centre). He attended a client’s room to provide toilet paper at a time which was outside of prescribed lockdown hours. Upon opening the client’s door, six youths took a knife to Mr Fagan’s throat, assaulted him and held him against his will. The clients escaped the Centre and were later caught by authorities. 6
Mr Molloy incident
[7] The parties had also agreed that, several days prior to this incident, another client attempted to escape the Centre. The facts regarding this incident are agreed and include that this client called a mature age staff member (Mr Molloy) to his room with a request for water. The request was made outside of prescribed lockdown hours. Mr Molloy acquiesced to the request and opened the client’s door and entered the room. He was then assaulted by the client. Mr Molloy did not face any disciplinary action. 7
[8] It was the union's argument that there was differential treatment between the two employees in comparable circumstances. The Public Sector Standards Employment Principles were said to mandate consistent treatment of employees in comparable circumstances. 8 The union submitted that the incidents involving Mr Fagan and Mr Molloy constituted comparable circumstances because:
[9] The union submitted that the respondent’s decision-making processes have been applied inconsistently in comparable circumstances. This is because Mr Molloy faced no disciplinary action whereas Mr Fagan has been disciplined and ultimately dismissed. It was contended that it was the nature of the act itself that needed to be considered rather than the consequences of the conduct in question. 10
[10] Vice President Lawler’s decision in Sexton v Pacific National (ACT) Pty Ltd 11 was referred to with respect to the requirement that it is “apples with apples” that are to be compared. The union stated that the two incidents involving Mr Molloy and Mr Fagan can be viewed as “apples and apples”. This was on the basis that both employees entered the client’s rooms outside of prescribed lockdown hours with the intent of providing a necessity. Both instances involved the same client and both instances resulted in a physical attack on the respective staff members. Therefore, it was argued that the respective treatment of Mr Fagan and Mr Molloy constitute differential treatment in comparable circumstances.12
[11] It was further submitted that the differential treatment of the two employees should be considered as a relevant matter under section 387 (h) of the Act. 13
Training/debriefing
[12] The union stated that it is clear that no evidence exists that, following the Molloy incident, Mr Fagan was expressly notified of any debriefing sessions or that he was debriefed. It was submitted, therefore, that the respondent has breached its obligations under the Occupational Health and Safety Act 2004 with respect to the provision of a safe working environment for employees. This was said to also be the case because the employer had failed to provide specific information about the Molloy incident to Mr Fagan and the dangers posed by the client’s ability to assault staff (the requirement to provide information, instruction or training to employees to enable them to perform their work in a way that is safe and without risks to health). 14
[13] It was argued by the union that, in failing to debrief Mr Fagan, the employer had breached section 9.1 of the Operations Manual which requires that the service system is safe for clients, staff and the general public in order to promote a continuous improvement approach and a full and frank recording of adverse events and the recording of recommendations for improvements. The union submitted that it was therefore incumbent on the respondent to ensure that all staff were debriefed regarding the Molloy incident as required by the Operations Manual. 15
[14] Ms Salinger stated that it is an agreed fact that Mr Fagan was terminated for misconduct due to his failure to follow the Operations Manual and Departmental policy, both in opening the door to client’s room during prescribed lockdown hours and in taking photographs of clients. It was noted that it was also agreed that Mr Fagan had claimed that he had not received training in the Operations Manual and that the respondent holds no record to contradict such a claim. The union submitted that Mr Fagan was ignorant of the policies concerning the opening of doors during prescribed lockdown hours and camera use. The Tribunal was referred to the precedent of Woolworths Ltd (t/a as Safeway) v Cameron Brown. 16 It was said that the ignorance was based on a lack of operational training which is not contested by the respondent. Therefore, it was submitted that, if the Department seeks to enforce their policies with rigidity then training must be made available to all staff.17
Misconduct
[15] The union contended that Mr Fagan’s conduct was not wilfully disobedient. It was stated that he was not trained in what procedures to follow and was therefore not given the directives to follow. Without clear directives, there could not be wilful disobedience of said directives. Further, it was argued that Mr Fagan's conduct in taking photographs of clients was not wilfully disobedient as he was never trained in these procedures. Accordingly, he could not have disobeyed any instructions that are purported to exist. In addition, the union submitted that the conduct of Mr Fagan in opening the client’s door was not grossly negligent. This was because Mr Fagan was opening the door to provide toilet paper, a sanitary necessity, which ought to be weighed against the lack of operational training contended by the union and not disputed by the respondent. With respect to Mr Fagan's conduct regarding camera misuse, it was stated that it was in no way grossly negligent and could have been addressed by performance counselling. 18
[16] Therefore, section 387 (e) was said to be applicable in this case. It was agreed between the parties that Mr Fagan has received incremental progression payments indicative of meeting his performance requirements. The inference was said to be drawn that performance management was never enforced and that, if counselling and performance management was not put in place, Mr Fagan's dismissal was inconsistent with the “fair go” criteria specified at section 381 (2) of the Act. 19
Custom and practice
[17] It was submitted by the union that the Molloy and Fagan incidents are indicative of a custom and practice of employees opening client’s doors during prescribed lockdown hours. 20 It was noted that one of the agreed facts is that staff are required to open doors and wake clients outside of prescribed lockdown hours if clients have court appearances.21 The union argued that this was a permanent arrangement which continues to this day. Further, the custom and practice of staff opening client’s doors during prescribed lockdown hours could also be described as permanent, as evidenced by the Molloy and Fagan incidents which occurred within 10 days of each other.22
Condonation
[18] The union argued that, in the employer's failure to sanction Mr Molloy for his conduct, it has condoned the behaviour of opening the doors during prescribed lockdown hours. A number of authorities were referred to in support of this contention. It was said that the opening of doors during prescribed lockdown hours to get clients ready for court is no different to the act of opening a door during prescribed lockdown hours to provide a necessity such as toilet paper. 23 It was stated that the waking up of clients around 5.30am/6.00am when the day shift started at 8.00am/8.30am represented the same degree of danger as posed a few hours earlier for Mr Fagan.24 Ms Salinger stated that both actions are integral to ensuring clients are provided with a dignified and humanised environment in which to reside. She said that Mr Fagan had made it very clear during the investigation that he did consider it to be an emergency at the time. This was because he had seen clients use other methods to clean themselves in the absence of toilet paper and believed this to be embarrassing and undignified.25 The only difference was said to be the Department’s response to the two sets of actions - one act (getting clients ready for court) which is not contained in policy, is allowed whilst the other, undertaken only a few hours earlier, results in disciplinary action. The union submitted that this inconsistent application of the rules is in contravention of section 4.3 of the Victorian Public Sector Code of Conduct.26
Harshness
[19] It was common ground between the parties that Mr Fagan was not seeking reinstatement as the remedy. 27 However, it was contended that, as a result of Mr Fagan’s age (72 years old), he will find it increasingly difficult to obtain alternative employment and will face long-term unemployment. This could result in a real risk that he will lose his house if he is not able to make a significant contribution to the mortgage repayments. It was stated that, prior to his dismissal, Mr Fagan had been employee with the Victorian public service for approximately 26 years. As well, Mr Fagan had no intention of resigning prior to the age of 80 at least. Therefore, the financial loss for Mr Fagan has been significant as he has not received any remuneration since his dismissal.28
[20] Ms Salinger also stated that, for many years, Mr Fagan voluntarily ran the soccer program which was later adopted by the Department as a permanent arrangement. Mr Fagan was said to have been a victim of crime and has suffered significant psychological and physical trauma as a result of the incident on 19 May 2010. His position as a victim of a crime was stated to be a relevant factor pursuant to section 392 (g) of the Act. The union therefore sought for Mr Fagan consideration of the maximum amount of compensation available. 29
RESPONDENT SUBMISSIONS
[21] Mr O'Grady stated that the issue before the Tribunal is whether the termination of Mr Fagan employment was harsh, unjust or unreasonable. If it was, what is the appropriate level of compensation? He confirmed that it was common ground that Mr Fagan does not seek reinstatement. It was submitted that, in these circumstances, it is appropriate that the Tribunal be satisfied that reinstatement of Mr Fagan would be inappropriate. It was indicated that the wishes of the parties are that the Tribunal will consider the application on the basis of the Statement 30 of Agreed/Not Opposed Facts.31
[22] The primary issue was therefore said to be as to whether there was a valid reason for Mr Fagan's dismissal. It was indicated that it is common ground that the Department's processes have been adequate and nothing is said about the size of the Department or its access to human resource facilities. Therefore, the matters set out in sections 387 (b) - (d) and (f) - (g) do not render the termination of Mr Fagan's employment harsh, unjust or unreasonable. Paragraph 21 of the Statement 32 of Agreed/Not Opposed Facts was referred to in this regard.33
[23] With respect to section 387 (e), the Department's primary position was stated to be that this section does not have any application in this matter as the termination of Mr Fagan related to misconduct rather than performance. Alternatively, it was contended that the absence of a formal warning (as Mr Fagan had not informed the Department that he was entering client’s rooms after lockdown) did not result in the termination being harsh, unjust or unreasonable. 34
[24] The Department accepted that differential treatment of employees can be a relevant factor for the purposes of section 387 (h). It was stated, however, that the fact that Mr Molloy's employment was not terminated did not render Mr Fagan’s dismissal harsh, unjust or unreasonable. Given that there was only nine days between the Molloy incident and Mr Fagan's incident, this imposed practical limitations on the ability of the Department to issue new procedures or to conduct de-briefings. 35
[25] It was further argued that there were different circumstances between Mr Molloy’s conduct and Mr Fagan's incident in that there is no evidence that Mr Molloy had engaged in such conduct previously. It was stated that Mr Fagan has, at least on one other occasion, entered client rooms during lockdown, without receiving permission to do so. This was said to have been when he let the clients out of their rooms and took the photographs of the soccer team. 36 Secondly, Mr Molloy's conduct did not have the same adverse outcomes as Mr Fagan's conduct, namely six clients escaping from the Centre.37
[26] Mr O'Grady submitted that the union's position that the focus is on the nature of the conduct and not its consequences was wrong and untenable. He said that valid reason has to be assessed on the basis of a practical and commonsense approach which did not preclude consideration of the consequences of the conduct. 38 In a nutshell, the Department's position was that Mr Fagan’s conduct, on 19 May 2010, had breached the Department's policies and put himself, other staff, clients and members of the community at risk. Further, it was stated that this conduct reflected a willingness on the part of Mr Fagan to dispense with the rules and procedures when he did not believe they were appropriate or necessary.39 His conduct in entering client rooms and/or allowing clients to enter the rooms to take photographs was said to be another example of this willingness. Mr Fagan’s willingness to dispense with the rule about not going into clients’ rooms after lockdown had put himself, the general community and the clients at risk.40
[27] The Department contended that Mr Fagan's conduct, on 19 May 2010, should be assessed in the context of the nature of the facility, his role, the fact that he was unsupervised for long periods of time, the vulnerable nature of the clients and the potential for them to exploit any departure from the rules. 41
[28] With respect to the Statement 42 of Agreed/Not Opposed Facts, Mr O'Grady highlighted the following:
[29] With respect to the issue regarding the photographs taken in 2009, the Department stated that this was one occasion when Mr Fagan had allowed clients out of their rooms to gather in one room for the photographs. 51 Therefore, it was said that Mr Fagan’s actions on 19 May 2010 were not a one off. It proved that Mr Fagan had opened rooms at night at least on one other occasion.52 On the night the photographs were taken, it was submitted that Mr Fagan appeared not to have been wearing a security belt (with duress alarm). There was said to have been the potential for Mr Fagan to have been attacked (as he was on 19 May 2010). Further, there was also the potential for favouritism amongst clients to have developed and for clients to have manipulated Mr Fagan.53
[30] Secondly, there was an issue in itself with Mr Fagan bringing the camera in and taking photographs. Mr O’Grady argued that the clients are vulnerable and Mr Fagan was in a position of power. A client may not want their photograph taken and there was also the issue of their control of the image in the future. 54 It was also argued that Mr Fagan had not sought permission to take the photographs.55
[31] The respondent highlighted Mr Fagan’s responses during the investigation. It was argued that he had failed to admit any wrong doing and had sought to blame the Department. 56
Valid reason
[32] Mr O’Grady responded to the union’s authorities and argued that the provisions of the Act needed to be applied in a practical and commonsense way. The Tribunal was referred to a number of authorities. It was contended that, even in the common law test, the consequences as well as the nature of the conduct have to be assessed. 57 Commissioner Deegan’s decision in Smith v GEO Group Australia Pty Ltd58 was highlighted.59
Warning
[33] The respondent submitted that, in the circumstances of this case, section 387(e) of the Act does not directly apply. 60 This was on the basis that Mr Fagan’s behaviour on 19 May 2010 is more appropriately characterised as misconduct rather than poor performance.
[34] In the alternative, it was argued that, as the employer had not been advised/there being no evidence that Mr Fagan was going into a client’s room/letting them out, it was unable to warn Mr Fagan about that conduct. 61
Molloy incident
[35] It was argued by the Department that there were two bases for distinguishing the Molloy incident from the 19 May 2010 incident. The first basis was that Mr Fagan had entered client’s rooms after lockdown on at least one previous occasion. There was said to be no evidence that this was the case with Mr Molloy. 62 Secondly, Mr O’Grady submitted that Mr Fagan’s conduct was associated with adverse outcomes (an escape) that were not present in the Molloy incident.63
[36] Further, the respondent contended that this was not a situation of comparing “apples with apples”. This was said to be because of the radically different outcomes between the two incidents. 64
Condonation
[37] Mr O’Grady submitted that this was not a case of condonation and outlined several reasons for this. Mr Fagan’s evidence to the investigator was said to have been that he was unaware of what had happened to Mr Molloy. Therefore, he could not have thought that what he did on 19 May 2010 was endorsed by the Department because of its response to the Molloy incident. 65 In support of this contention, the Tribunal was taken in detail to a number of authorities.66
Occupational health and safety
[38] With regard to the union’s argument that the Department had breached its occupational health and safety obligations in respect of Mr Fagan, it was stated that a process of conducting briefings had commenced but Mr Fagan was not included in the initial round. Secondly, the two incidents occurred in close proximity of each other. Therefore, it was not a case of the Department sitting on its hands. 67
Compensation
[39] It was submitted that the fact that Mr Fagan has not sought alternative employment was said to be a significant factor. With respect to how long Mr Fagan would have continued to be employed, it was said that the Tribunal should not simply rely on Mr Fagan’s desire to work until he was 80. Rather, there may be other factors which could have an impact on the length of his employment eg. whether he remained suitable for night duty. Following receipt of five weeks pay in lieu of notice, it was noted that Mr Fagan had not earned any income. 68
Misconduct
[40] The Department contended that the Tribunal should find that there was misconduct by Mr Fagan which was the reason for his dismissal. In this case, it was submitted that there should be a significant reduction in compensation. Only a moderate or nominal award of compensation should be made. Reference was made to the Full Bench decision 69 in Smith v Grand Hyatt Hotel.70
CONCLUSIONS
[41] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[42] The application was made one day after the termination which is within the period required in subsection 394(2). With respect to the requirements of s.396(b), the applicant was covered by an enterprise agreement. 71 Therefore, the applicant was protected from unfair dismissal within the meaning of s.383 of the Act. Sections 396(c) and (d) have no relevance in this matter.
[43] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia is satisfied that:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
In this matter, s.385(a) has been met and s.385(c) and (d) are not relevant. Therefore, what remains for determination is whether or not Mr Fagan’s dismissal was harsh, unjust or unreasonable (s.385(b)).
Was the dismissal harsh, unjust or unreasonable?
[44] In order to determine whether the termination of the Mr Fagan’s employment was harsh, unjust or unreasonable, Fair Work Australia is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:
“Section 387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
I will deal with each of these factors in turn.
Valid reason – s.387(a)
[45] The parties provided a detailed Statement 72 of Agreed/Not Opposed Facts and the Tribunal was requested to consider the application on the basis of the Statement and its attachments. The wishes of the parties will be followed in this matter.
[46] It was common ground that the primary issue with respect to the requirements of s.387 of the Act is whether or not there was a valid reason for Mr Fagan’s dismissal.
[47] The Statement of Agreed/Not Opposed Facts set out the four substantiated allegations on which the Department proceeded. The allegations related to taking a camera into the Unit and photographing clients without authorisation to do either; on one or more occasions, permitting clients to exit their bedrooms at night and congregate in other clients’ bedrooms (to take the photographs) and, on 19 May 2010, opening a client’s door without proper cause, during prescribed lockdown hours. 73 By letter of 24 May 2011, Mr Fagan was dismissed for serious misconduct on the basis of the 2009 photography incident and the 19 May 2010 incident.74
[48] The union submitted that there was not a valid reason for Mr Fagan’s dismissal. It was argued that it was harsh in its personal and economic consequences and because it was based on different treatment by the Department in comparable circumstances.
[49] On the other hand, the respondent submitted that there was a valid reason for the dismissal. This was due to Mr Fagan’s conduct on 19 May 2010 when he breached the Department’s policies and put himself, other staff, clients and the community at risk. It was also said that this conduct reflected the applicant’s willingness to dispense with the rules such as when he entered clients’ rooms/allowing them out of their rooms to take photographs.
[50] Having considered all of the material before me, I find that there was a valid reason for Mr Fagan’s dismissal. This is on the basis of his conduct in entering a client’s room alone during prescribed lockdown hours, on 19 May 2010 and without taking precautions to assure his safety. Secondly, in 2009, Mr Fagan let clients out of their rooms and allowed them to congregate in other clients’ rooms for the purpose of taking photographs (of the soccer team).
[51] The environment in which Mr Fagan worked was a corrections facility for young people aged 18 or under who have been remanded or sentenced by the Courts. 75 He worked night shift and was responsible (amongst others) for keeping the Unit secure. It was agreed that Mr Fagan had tried, on the night of 19 May 2010, to contact the control room to ask for assistance in opening the door to the client’s room.76 It was also common ground that there were no staff available to assist him at the time.77
[52] It is accepted that Mr Fagan believed that the provision of toilet paper was a necessity which preserved the dignity of clients. However, it does not appear from the documentation before me that Mr Fagan considered alternative (and safer) ways of dispensing the toilet paper - in the absence of any available assistance to open the client’s door. In not doing this, in a corrections environment, he put himself and then others at unacceptable risk, in opening a client’s door alone, at night, during prescribed lockdown hours.
[53] With respect to taking of photographs of the soccer team in 2009, it is clear that the clients were allowed out of their rooms during a prescribed lockdown period. The Department’s Operation Manual (at 8.15) is noted regarding restrictions on cameras in the units and the prohibition on taking photographs of clients without written authorisation is noted. 78 It is also noted that there is no documented evidence that Mr Fagan received training regarding the Operations Manual.79
Notified of the reason – s.387(b)
[54] Mr Fagan was provided with a letter of termination dated 24 May 2011. 80 What preceded this letter was a letter to Mr Fagan, dated 9 July 2010, which set out the five allegations made against him.81 An independent investigator’s report, which found four of the five allegations to be substantiated,82 was provided to Mr Fagan. Mr Fagan was notified of a meeting to show cause as to why his employment should not be terminated, to be held on 3 March 2011.83 The Department’s delegate determined that Mr Fagan’s employment should be terminated.84
[55] On the basis of the process outlined above, I am satisfied that Mr Fagan was notified of the reasons for his dismissal.
Opportunity to respond – s.387(c)
[56] As part of the disciplinary process, Mr Fagan was given an opportunity to respond to the investigation report, including the provisional findings. 85 He responded to the investigation report on 15 December 2010.86 Also, during the show cause meeting on 3 March 2011, Mr Fagan was able to provide written and oral submissions.87
[57] Therefore, I am satisfied that Mr Fagan was given an opportunity to respond to the reasons for his dismissal.
Support person – s.387(d)
[58] It would appear from the material before me that Mr Fagan was represented by the CPSU throughout the disciplinary process.
Previous warnings regarding the unsatisfactory performance – s.387(e)
[59] As Mr Fagan was dismissed because of serious misconduct, this section is not relevant.
Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)
[60] Neither of these sections were in issue between the parties. The Department is a large organisation with dedicated human resources specialists.
Any other matters – s.387(h)
[61] It was accepted by the Department that Mr Fagan’s length of service and the issue of differential treatment of employees may be relevant considerations for the purposes of s.387(h). However, the parties had different views about each of these matters.
[62] The union argued that the incident on 19 May 2010 involving Mr Fagan was comparable to the incident with Mr Molloy several days earlier. This was on the basis that, in each case, a client telephoned a mature staff member and requested toilet paper (Mr Fagan) and water (Mr Molloy). Both Mr Fagan and Mr Malloy opened the respective client’s doors, at night during prescribed lockdown hours. Upon entering the rooms, both Mr Fagan and Mr Molloy were assaulted. In Mr Fagan’s case, the clients then escaped the Centre. No disciplinary action was taken against Mr Malloy whilst Mr Fagan was dismissed. It was submitted that comparing the two incidents was a matter of comparing “apples with apples”. This was because, amongst other things, it was the nature of the act itself that was the focus, rather than the consequences of the conduct in question.
[63] On the other hand, the respondent contended that comparing the Molloy and Fagan incidents was not comparing “apples with apples”. This was due to the adverse outcomes of the Fagan incident which did not occur with the Molloy incident. Also, Mr Fagan had gone into client’s rooms at least on one previous occasion (photographing). However, it was said that there was no suggestion that Mr Malloy had previously opened client’s doors during prescribed lockdown hours.
[64] Having considered all of the material, I have formed the view that there was differential treatment of Mr Fagan compared with Mr Malloy in circumstances that were comparable. Both Mr Fagan and Mr Malloy were telephoned by clients requesting toilet paper and water respectively. Both staff members unlocked the client’s doors during prescribed lockdown hours and were assaulted. In terms of the circumstances of the two incidents as set out above, I am satisfied that the comparison is “apples with apples”. 88 On the basis of the Statement89 of Agreed/Not Opposed Facts, there is sufficient evidence to make this assessment. Mr Molloy had no disciplinary action taken against him for unlocking a client’s door, alone, during prescribed lockdown hours. Mr Fagan did exactly the same thing but was dismissed. Therefore, there was differential treatment of Mr Fagan compared with Mr Molloy for the same conduct (except that there is evidence that Mr Fagan initially sought assistance (which was unavailable). There is no evidence before me that Mr Molloy took this step before opening the client’s door.
[65] It does need to be recognised that the outcome of both incidents, was different. It was argued by the union that the focus should be on the nature of the conduct in question rather than on the consequences of that conduct. The Department’s contention was that the consequences of the conduct has to be assessed as well as the nature of the conduct. The case referred to by both parties was Rankin v Marine Power International Pty Ltd. 90 In this decision, Gillard J, in dealing with a negligence case, quoted a paragraph from the decision in Savage v British India Steam, Navigation Company Ltd:91
“Determining the seriousness of an act of negligence, regard must be had, not to the -consequences of the act, but to its nature.” 92
However, Justice Gillard expressed his own view that:
“......whilst the focus must be on the nature of the negligent act, the likely consequences of same are a relevant factor to consider, when considering the gravity of the negligent act.” 93
[66] Taking a practical and commonsense approach, it is my view that the consequences of a person’s conduct do need to be taken account of. In this matter, even though the conduct of both Mr Molloy and Mr Fagan was the same or similar (comparable) the outcome of their actions was not. However, there was no disciplinary action taken against Mr Molloy. Even taking into account the different outcome of Mr Fagan’s conduct, it would seem difficult not to find that there was differential treatment of Mr Fagan compared with Mr Molloy in comparable circumstances.
[67] In making this finding, the photography incident in 2009 has been taken into consideration. As has the fact that Mr Fagan attempted to comply with the normal procedures by seeking assistance before opening the client’s door on 19 May 2010. There is no evidence before me that Mr Molloy sought assistance prior to opening the client’s door.
[68] Accordingly, I consider the differential treatment of Mr Fagan compared with Mr Molloy to be a relevant matter under s.387(h) of the Act.
[69] With regard to the issue of Mr Fagan’s length of service, it was common ground that he was a Public Servant for about 25 years, 10 years of which he was a Police Officer and then 16 years as a Youth Justice Worker. At the time of the hearing, Mr Fagan was 72 years old. The union’s contention was that account should be taken of this in assessing whether his dismissal was harsh. For its part, the Department’s position was that Mr Fagan was a very experienced staff member and that, given his length of service and experience, he should have understood the risks and consequences of his actions.
[70] After consideration of the parties’ submissions, I am of the view that Mr Fagan’s length of service is also a relevant matter.
Conclusions
[71] In all of the circumstances of this case and, having taken account of each of the factors in section 387 of the Act, I determine, on fine balance, that the termination of Mr Fagan’s employment was harsh. On the one hand, there was a valid reason for his dismissal and there was procedural fairness accorded him under s.387(b)-(d) of the Act. On the other hand, there was differential treatment of Mr Fagan compared with that of Mr Malloy and account should also be taken of his length of service and his age. These factors, on fine balance, render Mr Fagan’s dismissal harsh in all of the circumstances.
[72] It therefore follows that, pursuant to s.385 of the Act, Mr Fagan has been unfairly dismissed.
REMEDY
[73] Section 390 of the Act sets out when Fair Work Australia may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[74] With respect to the requirements of s.390, I am satisfied that the applicant was protected from unfair dismissal at the time of his dismissal (s.390(1)(a)) and that the applicant has been unfairly dismissed (s.390(1)(b)). Further, Mr Fagan has made an application under s.394 of the Act (s.390(2)).
[75] Section 390(3) states that Fair Work Australia must not order the payment of compensation unless two conditions have been met. The first condition is that Fair Work Australia is satisfied that reinstatement is inappropriate (s.390(3)(a)). Mr Fagan does not seek reinstatement and the parties requested the Tribunal not to consider reinstatement. In the circumstances of this matter, I am satisfied that reinstatement of Mr Fagan is inappropriate. It could be a difficult situation for all concerned if the applicant was reinstated.
Compensation
[76] Section 390(3)(b) requires that Fair Work Australia consider it appropriate in all of the circumstances of the case to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.
[77] The requirements regarding an order for compensation are contained in section 392 of the Act. Section 392(2) sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:
“(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.”
[78] I will deal with each of the criteria in turn.
s.392(2)(a) - viability of employer’s enterprise
[79] There was no material before me that any order made would affect the viability of the respondent. Therefore, I am satisfied that the order I intend to make will not impact in this regard.
s.392(2)(b) - length of applicant’s service
[80] The length of Mr Fagan’s service with the Victorian Public Service is about 25 years. For the past 16 of the 25 years he has been employed as a Youth Justice Worker. Given the length of Mr Fagan’s service, this criteria must be taken into account.
s.392(2)(c) - remuneration would have been likely to receive
[81] The union submitted that Mr Fagan had wished to remain working until he was 80 years old (a further 8 years). It was the Department’s view that Mr Fagan’s ongoing employment may have been impacted by factors such as no longer being able to work night shift and the need for the Department to deal with the issues raised by the 19 May 2010 incident.
[82] Having considered all of the material before me, I find that it is likely that, in the absence of dismissal, Mr Fagan would have continued with the Department for a period of 9 months. This amounts to $39,267.00. 94
s.392(2)(d) - efforts to mitigate the loss
[83] It was stated by the union that Mr Fagan had not taken any steps to obtain alternative employment. 95 The union also submitted that Mr Fagan was a victim of crime and had suffered significant psychological and physical trauma.96
[84] On the basis of the material before me, I find that Mr Fagan has not taken any steps to obtain alternative employment. In these circumstances, some discount on the compensation otherwise payable should be made. A discount, however, needs to recognise that, during the incident on 19 May 2010, Mr Fagan was assaulted and then, about 12 months later, his employment was terminated. Account should also be taken of the fact that Mr Fagan is 72 years old. I consider that a discount of 15% is appropriate. This means that the total projected lost income is reduced by $5,890.05, making a provisional total of $33,376.95.
s.392(2)(e) - the amount earned between dismissal and the order
[85] As set out above, Mr Fagan has not obtained alternative employment since his dismissal. When he was terminated, he was paid five weeks pay in lieu of notice ($5,017.10). 97
[86] Therefore, I find that Mr Fagan earned $5,017.10 between the dismissal and the order. The adjusted provisional compensation figure becomes $28,359.85.
s.392(2)(f) - the amount earned between the making of the order and receipt of the compensation
[87] On the basis of the material before me, I find that Mr Fagan will have earned no income during this period. Therefore, no adjustment of the provisional compensation figure is required.
s.392(2)(g) - any other matters
[88] It was submitted by the union that relevant matters included:
[89] The Department argued that there was insufficient material before the Tribunal to support the dire financial consequences claim by the union. 99
[90] Having considered the submissions of the parties, I consider, as relevant to the matter of compensation, Mr Fagan’s age and the consequential potential difficulties of finding alternative employment at his age.
s392(3) - misconduct
[91] Section 392(3) of the Act provides that:
“(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.”
[92] The Department argued that Mr Fagan was dismissed due to misconduct and that there was no dispute that the conduct had occurred and that it contributed to the decision to terminate Mr Fagan’s employment. It was submitted that a significant discount was warranted in the circumstances of the case. 100
[93] It is apparent from the Statement of Agreed/Not Opposed Facts that Mr Fagan’s conduct contributed to the decision to dismiss him. 101 An adjustment of 20% of the provisional compensation figure should be made to reflect this. Therefore, $23,359.85 is reduced by $5,671.97 which would result in a total of $22,687.88.
[94] With respect to contingencies, I propose to make a small adjustment to take into account potential factors such as Mr Fagan being unable to continue to work night shift. Accordingly, a 10% reduction of the provisional compensation amount will be made ($2,268.79) resulting in a total of $20,419.10.
[95] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Fagan (s.392(4)).
[96] The provisional compensation amount is less than the maximum prescribed by section 392 (5) of the Act as applicable in this matter. Therefore, no adjustment in this regard is necessary.
[97] Accordingly, I determine that the Department of Human Services is to pay to Mr Fagan the amount of $20,419.10 as compensation, taxed according to law, within 14 days of this decision.
[98] An Order 102 to this effect will be issued separately.
COMMISSIONER
1 Exhibit A1
2 Transcript PN 32 - 33
3 (1995) 185 CLR 410, Transcript PN 79 - 87 and Exhibit A3 at paragraph 4
4 (1997) 79 FCR 566
5 Transcript PN 81 and Exhibit A3 at paragraph 5
6 Ibid PN 82 - 83 and ibid at paragraphs 6 - 7
7 Ibid PN 84 - 85 and ibid at paragraph 8
8 Ibid PN 86 - 89 and ibid at paragraph 9
9 Ibid PN 90 and ibid at paragraph 10
10 Ibid PN 93 - 94 and ibid at paragraph 12
12 Transcript PN 95 - 97 and Exhibit A3 at paragraphs 13 - 14
13 Ibid PN 98 - 99 and ibid at paragraph 15
14 Ibid PN 101 - 105 and ibid at paragraphs 17 - 20
15 Ibid PN 106 - 111 and ibid at paragraphs 21 - 24
17 Transcript PN 112 - 116 and Exhibit A3 at paragraphs 25 - 29
18 Ibid PN 112 - 131 and ibid at paragraphs 33 – 38
19 Ibid PN 132 and ibid at paragraph 39
20 Ibid PN 133 and ibid at paragraph 40
21 Ibid PN 135, ibid at paragraph 49 and Exhibit A1 at paragraph 14
22 Ibid PN 136 - 137 and Exhibit A3 at paragraphs 44 - 45
23 Ibid PN 138 - 149
24 Ibid PN 480 - 481
25 Ibid PN 482 - 483
26 Ibid PN 150 - 151 and Exhibit A3 at paragraphs 46 - 52
27 Ibid PN 59
28 Ibid PN 152 - 157
29 Ibid PN 158 - 159 and 494 - 495 and Exhibit A3 at paragraphs 56 - 58
30 Exhibit A1
31 Transcript PN 181 - 182, Exhibit R1 at paragraph 1 and Exhibit A2
32 Exhibit A1
33 Transcript PN 183 and Exhibit R1 at paragraph 2
34 Ibid PN 184 - 186 and ibid at paragraph 3
35 Ibid PN 188
36 Ibid PN 190 and Exhibit R1 at paragraph 4
37 Ibid PN 191
38 Ibid PN 191 - 193
39 Ibid PN 194 and 266 - 268
40 Ibid PN 195 - 196 and Exhibit R1 at paragraph 5
41 Ibid PN 197 - 198 and ibid at paragraph 6
42 Exhibit A1
43 Transcript PN 201 - 209 and Exhibit R1 at paragraph 7 (a)
44 Ibid PN 210 - 212 and 312 - 326 and ibid at paragraph 7 (b)
45 Ibid PN 213 and ibid at paragraph 7 (c)
46 Ibid PN 214 and ibid at paragraph 7 (d)
47 Ibid PN 215 - 217 and ibid at paragraph 7 (e) - (f)
48 Ibid PN 218 - 219 and ibid at paragraph 7 (g)
49 Ibid PN 220 - 240
50 Ibid PN 250
51 Ibid PN 293 - 302
52 Ibid PN 333 and Exhibit R1 at paragraph 7(h)(ii)
53 Ibid PN 357 - 359 and ibid at paragraphs 7(h)(iii) - (vi)
54 Ibid PN 332 and 355 and ibid at paragraph 7(h)(i)
55 Ibid PN 361 and ibid at paragraph 7(h)(iii)
56 Ibid PN 375 - 380 and ibid at paragraph 8
57 Ibid PN 381 - 402 and ibid at paragraph 9
59 Transcript PN 405 - 412 and Exhibit R1 at paragraph 12
60 Ibid PN 414 - 417 and ibid at paragraphs 13 - 14
61 Ibid PN 413 and ibid at paragraphs 13 and 15
62 Ibid PN 419 and ibid at paragraph 17
63 Ibid PN 420 - 426 and ibid
64 Ibid PN 430
65 Ibid PN 431 - 433 and Exhibit R1 at paragraph 18
66 Ibid PN 436 - 447 and ibid at paragraph 19 - 20
67 Ibid PN 448 - 451
68 Ibid PN 452 - 456
70 Transcript PN 457 - 475 and Exhibit R1 at paragraphs 22 - 25
71 Victorian Public Service Agreement 2006 (2009 extended and varied)
72 Exhibit A1
73 Exhibit A1 at exhibit 8
74 Ibid at exhibit 16
75 Ibid at paragraph 1
76 Ibid at paragraph 10
77 Ibid
78 Ibid at paragraph 19
79 Ibid
80 Ibid at exhibit 16
81 Ibid at exhibit 3
82 Ibid at exhibit 8
83 Ibid at exhibit 12
84 Ibid at exhibit 15
85 Ibid at exhibit 9
86 Ibid at exhibit 10
87 Ibid at exhibits 13 and 14
88 Sexton v Pacific National (ACT) Pty Ltd PR931440 at [33] and [36]
89 Exhibit A1
90 [2001] VSC 150
91 (1930) 46 TLR 294
92 Rankin v Marine Power International Pty Ltd [2001] VSC 150 at [337]
93 Ibid at [339]
94 Based on final payslip - Exhibit A1 at exhibit 16
95 Transcript PN 31 - 33
96 Ibid PN 159 and Exhibit A3 at paragraph 57
97 Exhibit A1 at exhibit 16
98 Exhibit A3 at paragraph 54
99 Transcript PN 455
100 Exhibit R1 at paragraphs 23 - 25
101 Exhibt A1 at Exhibit****)
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