[2014] FWC 446 [Note: An appeal pursuant to s.604 (C2014/2944) was lodged against this decision - refer to Full Bench decision dated 19 March 2014 [[2014] FWCFB 1870] for result of appeal.]
[Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Malcolm Pearson
v
Linfox Australia Pty Ltd
(U2013/10095)

COMMISSIONER GREGORY

MELBOURNE, 17 JANUARY 2013

Application for relief from unfair dismissal.

Introduction

[1] Mr Malcolm Pearson has been employed by Linfox Australia Pty Ltd since January 2007. He was initially employed as a casual but 6 months later commenced as a full-time employee. In his time with Linfox he has been located at different distribution centres managed by the Company. At the time of his termination he was working at the Fonterra Distribution Centre in Altona where he has been since April 2011.

[2] Linfox submits various issues to do with Mr Pearson’s conduct have given it a valid reason to terminate his employment. They primarily concern his failure to follow policies and procedures in place at the Distribution Centre. It submits the breaches go to four areas –

• the policy requiring contact with a relevant Supervisor/Manager when absent from work;

• the policy about mobile phone use;

• the policy concerning social media; and

• the Safe Working Procedures policy.

[3] Those reasons were confirmed in a letter given to Mr Pearson on 21 May 2013. However, Linfox does not seek to rely on the first two warnings detailed in that letter in support of its “valid reason,” although it submits the behaviour occurred and the warnings were legitimate.

[4] Mr Pearson denies Linfox had a valid reason to terminate him. He claims he has been targeted by the Company and subjected to differential treatment compared to other employees. He also submits this only occurred following his transfer to the Fonterra site. His submissions and evidence go to a range of facts and circumstances. However, I have confined my consideration to the evidence and submissions I consider relevant to Mr Pearson’s unfair dismissal claim.

The Evidence and Submissions

[5] Mr Pearson submits as a general proposition the termination letter dated 21 May 2013 and signed by Mr Brett Ambler, the Distribution Manager at the Fonterra site, contains “false and misleading information that continues on from the bullying complaint I filed in November 2011 against him.” 1 He also submits “Human Services” generally show a “lack of impartiality and bias against me.”2 Linfox submits in response the bullying claim was fully investigated and found to be unsubstantiated. It also denies any allegations of bias.

[6] On 13 July 2012 Mr Pearson was issued with a written warning for failing to notify his Manager or Supervisor about his previous absence from work on 6 July. Mr Ambler indicated it is a requirement of all employees that they contact their Manager or Supervisor as soon as practicable, if unable to attend work. This requirement is contained in Mr Pearson’s contract of employment and in an employee handbook issued to all employees. He also stated Mr Pearson attended a tool box meeting in February 2012 when a reminder was issued about this requirement. Mr Ambler subsequently discovered Mr Pearson attempted to provide notification that morning by sending a text message to a colleague employed at the same level as him. However, it appears that message was not passed on until after close of business on that day.

[7] Mr Ambler said he later became aware Mr Pearson said he was unable to attend on that day because he needed to look after his son who was unwell. He said if Mr Pearson had contacted the appropriate person to explain this situation there would not have been a problem, however, he did not do so. His conduct was accordingly unacceptable and in breach of his obligations under his contract of employment and the applicable Linfox policy. On 13 July Mr Ambler met with Mr Pearson and Mr Luke Fitzpatrick from the NUW to discuss the situation. Mr Ambler initially indicated Mr Pearson would be provided with a written warning regarding his failure to notify his Manager or Supervisor. However, following further discussion he agreed instead to provide a verbal warning. However, Mr Pearson then refused to sign the acknowledgement of having received this warning.

[8] Mr Pearson states he was absent from work on the day because of his son’s illness. His son suffered a seizure on 1 July and was unwell for several days afterwards. He said his son was “restless all night” 3 on the evening of 5 July and Mr Pearson decided he could not attend work on the following day. He sent a text message to the “first person I could find on my phone to let them know I won’t be in on 6 July 2012 due to taking care of my son, unfortunately, that person didn’t check messages until later at their first break and passed on message.”4 Mr Pearson states Linfox was notified on the day of his absence and the warning he received is in breach of its carer’s leave policy.

[9] On 15 February 2013 Mr Pearson was issued with a written warning for what Linfox describes as “a serious safety breach on site.” It arose from an issue to do with his use of a mobile phone at work. Mr Ambler said it is a site policy that employees are required to have mobile phones switched off during work hours, unless otherwise authorised. Employees are made aware of the policy through the induction process and through tool box meetings. On 18 January 2013 he entered the “chillers” area with a security officer and saw Mr Pearson “engrossed in an activity on his mobile phone.” 5 He asked what he was doing and Mr Pearson indicated he was getting a drink. Mr Ambler said he told Mr Pearson his conduct was in breach of the site policy regarding the use of mobile phones. He also said he didn’t have a discussion about hydration with Mr Pearson at this time, although the issue is one he takes very seriously.

[10] Mr Ambler said he subsequently decided to make a file note about his recollection of the conversation with Mr Pearson. In order to confirm what time the conversation took place he reviewed video footage of the location. On reviewing it he noted Mr Pearson had failed to take the keys from a truck driver before proceeding to load a rear load trailer, and commenced to load the trailer while the driver was not within the exclusion zone. Mr Ambler said he considered this behaviour to be a serious breach of the site Safe Working Procedure in which training had been provided to Mr Pearson in December 2011 and again through refresher training in December 2012. Mr Ambler said when he and Mr Stoodley initially discussed this incident with Mr Pearson he said he had taken the keys from the driver and placed them on the table, but after viewing video footage had admitted not following the applicable safe work procedure. He subsequently issued a written warning to Mr Pearson regarding this behaviour. The acknowledgement section of the warning was signed by Mr Pearson on this occasion. Another employee involved in similar behaviour and identified from the video footage was also provided with a similar written warning. Mr Ambler stated in cross-examination the other employee had actually watched the footage and admitted the safety breach had occurred.

[11] Mr Pearson states when Mr Ambler saw him in the “chillers” with a mobile phone in his hand he was checking on some forthcoming WorkCover appointments, as well as having a glass of water in accordance with the hydration policy. It allows employees to have a drink at any time. He indicated in cross examination it was not an emergency situation, but he was checking future medical appointments while in the process of obtaining a glass of water. He also denied he loaded the trailer on the chiller dock while the driver was not in the exclusion zone and could not remember attending training sessions about the appropriate safe work practices. He did, however, sign the acknowledgement of the written warning he received, but only did so on the recommendation of his Union representative.

[12] Mr Ambler said he was subsequently informed by Mr Stoodley that Mr Pearson had left work early on 14 March to attend an appointment with his solicitor. He said Mr Pearson had apparently informed Mr Stoodley at approximately 11am that morning he would be leaving work at 12:45pm. A similar situation occurred on 19 March. Mr Ambler stated this conduct was again in breach of Mr Pearson’s obligation to inform his Manager or Supervisor of his intended absence from work as soon as reasonably practicable. This requirement had again been raised with Mr Pearson on several occasions. Mr Ambler again met with Mr Pearson and Mr Fitzpatrick on 28 March to discuss this issue and at the conclusion of the meeting issued Mr Pearson with a further written warning indicating his behaviour, and his failure to submit the appropriate leave forms, was not in accordance with the standards expected by the organisation. That letter also indicated any further incidents might result in further disciplinary action, including termination of his employment.

[13] Mr Pearson states he gave notice of attending the appointment on 14 March prior to starting work, but subsequently rescheduled the appointment due to work commitments. He states he told Mr Stoodley about this at 9am that morning and was given permission to attend the appointment later that day. He states he was only given the warning by Mr Ambler after becoming a Union delegate.

[14] Mr Ambler said Mr Pearson was also issued with a written warning on 13 May regarding his refusal to sign the social media policy put in place by Linfox. On 11 April Mr Pearson attended a one-on-one training session in relation to the policy conducted by Ms Jodie Steel, the Distribution Administration Coordinator. Mr Ambler said all employees are required to attend a training session in relation to this policy. Mr Pearson did attend an initial collective toolbox meeting in June 2012, however, on review of the attendance sheet it was noted he had failed to sign to confirm his attendance, hence the subsequent one-on-one training that followed. Mr Ambler said this training was conducted in an adjoining office and at the conclusion of the meeting he heard Mr Pearson say he refused to sign the acknowledgement he had read and understood the content of the policy brochure. Mr Pearson continued to refuse and was subsequently issued with a written warning on 13 May regarding this refusal.

[15] Mr Pearson states he refused to sign the social media policy because it intends to apply outside of working hours and “... as Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech...” 6

[16] Mr Ambler also states he was aware of two further occasions when Mr Pearson had breached the mobile phone policy. The first occurred during the training session on 11 April when he heard Mr Pearson’s mobile phone receive a text message. He immediately directed Mr Pearson to switch his phone off. The second occasion was on 2 May during a meeting with Mr Pearson and Mr Pineaha in Mr Ambler’s office. During that meeting Mr Pearson’s mobile phone rang and Mr Ambler again informed him he was required to have his phone switched off during work hours in accordance with the site mobile phone policy.

[17] Mr Pearson states his mobile phone has been left on since he worked at the site. This was never raised as an issue during the time that he was performing office duties and he simply kept it on in case of family emergencies. He said other employees use their phone during working hours without being disciplined, and he was again being targeted.

[18] Mr Ambler said he finally made a decision on 17 May to stand Mr Pearson down on full pay until further notice. This was based on Mr Pearson’s lack of cooperation in refusing to sign the social media policy, as well as his repeated breaches of the site mobile phone policy, his failure on several occasions to report to his Supervisor or Manager regarding his absences from work, and the safety breach. The decision was intended to allow sufficient time for Mr Ambler to consider the appropriate response to his concerns about Mr Pearson’s conduct.

[19] On 21 May Mr Ambler organised a meeting with Mr Pearson, Mr George Katsifolis, a Workplace Relations Adviser with Linfox, and Mr Luke Fitzpatrick from the NUW. Mr Katsifolis outlined the various events and warnings provided to Mr Pearson over the preceding months, and then provided him with an opportunity to provide his views in response as to why his employment should not be terminated. Prior to the meeting Mr Ambler said he had formed the view that unless Mr Pearson was able to provide a reasonable explanation for his behaviour his employment at the site could not continue because his conduct was not in accordance with required standards. Mr Ambler said Mr Pearson did not provide any compelling reasons in the discussions that followed as to why he should not be terminated, nor did he demonstrate any genuine acknowledgement his behaviour was inappropriate, or that he was prepared to change his attitude and behaviour.

[20] Mr Fitzpatrick subsequently requested a break in the meeting. Mr Ambler said during this time the situation was discussed by the management team and it was agreed Mr Pearson had not provided adequate reasons as to why his employment should not be terminated. When the meeting reconvened Mr Pearson was provided with the letter dated 21 May 2013 terminating his employment with notice. Mr Ambler denied the allegations against him about bullying had influenced his decision to terminate Mr Pearson’s employment. He also denied in cross-examination the decision to terminate Mr Pearson had been made prior to the meeting on 21 May. He stated the decision was only made after the discussions at the meeting, and once it was confirmed there was no evidence of mitigating circumstances.

[21] Mr Pearson states these processes were “a setup to get rid of me,” 7 and Linfox had already made the decision to terminate him when he was called to attend the meeting on 21 May. He submits the letter dated 21 May supports this conclusion because it was prepared prior to the meeting and confirms Linfox was not prepared to take account of any mitigating circumstances he raised. He also submits he was unable to progress his concerns through the dispute resolution procedure, and the bullying complaints he made against Mr Ambler in October 2011 were not properly investigated. He submits he did not have any issues during his time at Linfox until he was transferred to the Fonterra site. He also stated he had other witnesses who could provide evidence to support his submissions, however, he preferred to speak on his own behalf, and not put them “... Under pressure, or to suffer consequences of what might happen when return to work after hearing from management...”8

[22] He said “all up, basically there has been a domino effect. I should have dealt with the listing immediately through dispute resolution rather than trying to take on the side of, “let’s discuss it,” and it has backfired on me because they built up until the day set me up on a termination letter.” 9 Mr Pearson also claims to have been denied access to his employment records which would have enabled him to pursue these matters through the dispute resolution procedures in the agreement that covers the parties.

[23] Ms Joanne Steel is employed as the Administration Coordinator at the Fonterra Distribution Centre in Altona. She attended the meetings in October 2012 and January 2013 with Mr Pearson and other management representatives in which Mr Pearson was told about the requirement to give reasonable notice of any absences from work. She also conducted the one-on-one social media policy training with Mr Pearson when he subsequently refused to sign the acknowledgement that states “I ______ have read and understood the content of this social media policy brochure.”

[24] Mr Pineaha is the Operations Manager at the Distribution Centre and has been in that position since October 2010. He has been employed by Linfox since January 2008. He confirmed the established practice at the site is that when an employee cannot come to work for any reason they contact Mr Stoodley or himself. However, Mr Pearson did not follow this procedure when he was absent on 6 July or again in January 2013. He was also present in the meeting with Mr Ambler and Mr Pearson in May 2013 when Mr Pearson’s mobile phone rang.

[25] Linfox submits in conclusion that Mr Pearson was of the view he could operate with impunity in his role at the Distribution Centre and could decide which policies he agreed to and would comply with, and which he would ignore. It also submits he has not been prepared to directly answer any of the issues and allegations raised in regard to his behaviour.

Consideration

[26] The respective submissions of the parties in this matter have a consistent theme. Linfox submits there is a pattern of behaviour whereby Mr Pearson fails to follow required procedures and policies, despite having been made aware of the requirement to do so. Mr Pearson on the other hand submits his actions can be explained in each case, and he has been targeted and singled out for differential treatment by his Manager and Supervisor and Mr Ambler, in particular.

[27] I now turn to consider Mr Pearson’s application under the criteria in section 387 of the Fair Work Act 2009 I must take account of.

(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);

[28] Linfox submits it had a valid reason to terminate Mr Pearson’s employment, namely his persistent failure to obey lawful and reasonable directions on a number of occasions. It submits it is well settled that an employee’s failure to follow an employer’s lawful direction may constitute a valid reason for termination. It cites the case of Woolworths Limited v Brown 10 where a Full Bench held “a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify the dismissal of common law will amount to a valid reason for termination.”11

[29] It also referred to the decision in Dickinson v Calstores Pty Ltd 12 where Sams DP held the Applicant’s multiple breaches of the Respondent’s policy might not be regarded as particularly serious if taken individually but that “each of the examples ....... cannot be disaggregated from a consistent pattern of behaviour which was confrontationist, argumentative and insubordinate.”13

[30] The decision of Northrop J. in Selvachandran v Peteron Plastic Pty Ltd 14 is also an often quoted authority for what constitutes “valid reason”. At page 373 his Honour stated a valid reason is one which is:

“... sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly...” 15

[31] It is also clear the reason must be objectively valid. It is not sufficient that the employer believes it had a valid reason for termination. This was emphasised in the Full Bench decision handed down by this Tribunal’s predecessor in the matter of Rode v Burwood Mitsubishi 16 at paragraph 19 where the Full Bench held:

“... [T]he reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[32] The existence or not of a valid reason is obviously also an important issue in any unfair dismissal application and often determinative. In the often cited decision of Parmalat Food Products Pty Ltd v Wililo 17 a Full Bench of the Commission made the following statement about the importance of valid reason:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination.” 18

[33] I now turn to consider whether Linfox had a “valid reason” in the present matter, noting the conduct and behaviour complained of is not constituted by one incident but by a series of events. The first involves Mr Pearson’s failure on at least two occasions to follow the appropriate notification procedure when absent from work. This is not an insignificant matter. An employer is entitled to put in place policies to be followed when an employee is unfortunately unable to comply with his/her obligations to attend at work. It is to be expected these policies and procedures will be observed and adhered to in the absence of any significant emergency situation that make this impossible.

[34] Linfox submits on at least two occasions Mr Pearson failed to comply with these procedures. On the first occasion he submits he was dealing with some significant health issues involving his son after he suffered a seizure. This is clearly a serious and significant issue for any parent to have to deal with. But in this case Mr Pearson’s absence from work actually occurred, according to his witness statement, five days after the seizure and after his son had a restless night that evening. I am not looking to diminish the significance of this issue for Mr Pearson but I am satisfied the emergency situation he was dealing with had passed by this time. I am not convinced those circumstances acted to prevent him from doing what the policy and procedure required; contacting his immediate Supervisor or Manager to advise he would not be attending at work that day.

[35] Mr Pearson instead chose to attempt to contact his employer by leaving a message with a colleague at work. The fact this was unsuccessful in getting advice to his employer about his absence on that day provides further demonstration of the rationale for why Linfox has a policy in place of requiring direct contact with the relevant Manager/Supervisor.

[36] Mr Pearson also submits Linfox is in breach of its Carer’s Leave policy in giving him a warning in regard to his absence on that day. He provided a copy of the policy as well as the personal/carer’s leave and compassionate leave provisions contained in sections 95 to 107 of the Fair Work Act 2009 in a bundle of documents provided to the Commission. The Linfox personal/carer’s leave policy document provided by Mr Pearson indicates at the outset:

“1.0 Purpose

This policy provides an overview of the method by which personal (i.e. sick leave) and carer’s leave is administered within the Linfox Logistics business in Australia.”

[37] Under the heading “Key Principles” it indicates, in part:

“All employees must notify their line manager of an inability to attend for work due to illness or injury, or due to carer’s responsibilities as outlined in this policy.”

[38] Sub clause 5.3.2 of the Policy document continues to indicate:

“Carer’s leave

The employee shall, wherever possible, give their line manager prior notification of their intention to take leave. The notification is to include; the name of the person requiring care, their relationship to the employee, the reasons for taking such leave and the estimated length of absence.

If prior notice of the absence is not possible the employee is required to notify their line manager of their requirement for carer’s leave at the first opportunity on the day of absence.”

[39] Section 107 of the Fair Work Act 2009 also states:

“107 Notice and evidence requirements

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave, has started); and

(b) must advise the employer of that period, or expected period, of the leave.”

[40] It is evident from these extracts that while they provide an entitlement to employees to access carer’s leave they also contain obligations for those employees, relevantly in this case an obligation to provide notice to their manager when a requirement to take leave arises. This should occur prior to the leave being taken, or as soon as practicable. Mr Pearson did not comply with these requirements, and in not doing so has not complied with the policy put in place by Linfox or the requirements of the Fair Work Act. I am also unable to understand how it is suggested Linfox has failed to comply with its carer’s leave obligations. Mr Ambler’s evidence indicates Linfox did not seek to deny Mr Pearson access to his carer’s leave entitlement, but wanted him to access that entitlement in accordance with the notice requirements contained in both its Policy and the Fair Work Act 2009.

[41] The second occasion involving notice when absent from work concerned Mr Pearson’s attendance at a medical appointment. He said he advised his Supervisor on the morning of the appointment he would be required to leave work that day. He subsequently changed the time because of other work commitments. In any case he submits he was attending a medical appointment concerning a workers’ compensation claim he was pursuing against Linfox and the Company should have been aware of the appointment. Linfox maintains Mr Pearson again failed to comply with the requisite procedures. It submits it is a large organisation and not necessarily aware of arrangements put in place for employees by other Departments within the organisation. In all of these circumstances I again see no reason why Mr Pearson was not able to follow the appropriate procedures within the required time frame. The requirement to do this should have been clear to him particularly because he was on notice about his previous failure to abide by these policies and procedures.

[42] The second issue concerns his inappropriate use of his mobile phone at work. Linfox claims it had a clear and understood policy about mobile phone use at work and Mr Pearson was in breach of this policy on several occasions. Mr Pearson provided various explanations for these occurrences. He claims that when working in the office he left his phone on and was never reprimanded for doing so. He says he has elderly relatives in frail health and “... I simply keep it on for emergencies...” 19 On another occasion he claims to have been checking forthcoming medical appointments arranged as part of his ongoing claims against Linfox, and later he was checking for messages from his Union after his election as a Union delegate. He also claims other employees were not treated in the same way in regard to this issue, although it was not made clear in those instances whether they were authorised to use a mobile phone within the Distribution Centre.

[43] These explanations do not hide the fact that on various occasions Mr Pearson left his mobile phone on at work and in doing so was in breach of a policy that was clear and understood. It is accepted that for various reasons an employee might want to be contactable during working hours. However, I am satisfied this could have been done in a way that was acceptable to both Mr Pearson and Linfox. Many employees have frail and dependent relatives. Union delegates may need to be contacted by their Union from time to time. Mr Pearson could have sought authorisation from Linfox to have his mobile phone on in these circumstances. Alternatively, a nominated contact within the Distribution Centre could have received messages on his behalf, when necessary. However, these arrangements were not put in place and the evidence indicates Mr Pearson continued to breach the policy about mobile phone use on repeated occasions.

[44] The next issue concerns the breach of a safe work procedure during the unloading of a vehicle at the Distribution Centre. This incident came to light while Mr Ambler was checking details in regard to one of the issues concerning mobile phone use. Mr Pearson again denies he was in breach of the appropriate policy and procedure and could not recall whether he had been appropriately trained in regard to them. The evidence provided on behalf of Linfox was that he had attended the training on at least two occasions. In addition, another employee involved in the same breach simply acknowledged he had not followed the appropriate procedure. He was also provided with a warning, but without the need for any further investigation because of his acknowledgement. Again, I have no reason to doubt the evidence provided by the Company in regard to this matter.

[45] The next issue concerns Mr Pearson’s failure to sign the appropriate acknowledgement following completion of training he received in regard to Linfox’s social media policy. Mr Pearson received one-on-one training because he failed to sign an acknowledgement he had previously attended a group training session. After attending the training Mr Pearson crossed out the word “understand” where the acknowledgement stated, “I _______ have read and understand ....”, and in the signature space wrote “refused to sign.” Mr Pearson said he refused to sign because the policy sought to constrain his actions outside of working hours, and this was in breach of various rights individuals are protected by. The first point to note in this context is that the acknowledgement he was asked to sign did not actually commit him to abide by the policy; it simply required him to acknowledge he had read and understood it.

[46] Secondly, Linfox’s desire to have a policy in place about the use of social media by employees can be understood. The evidence indicated it had been criticised in other proceedings for not having done so. Further, in an employment context the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business. It also serves a useful purpose by making clear to employees what is expected of them. Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only. An employer is also entitled to have a policy in place making clear excessive use of social media at work may have consequences for employees.

[47] In terms of Mr Pearson’s complaint that the policy sought to constrain him whilst not at work it is not my role to be sitting in judgement about whether the policy is in breach of his individual rights or other statutes and conventions. Mr Pearson is apparently pursuing those matters elsewhere. However, it is difficult to see how a social media policy designed to protect an employer’s reputation and the security of the business could operate in an “at work” context only. I accept that there are many situations in which an employer has no right to seek to restrict or regulate an employee’s activities away from work. However, in the context of the use of social media, and a policy intended to protect the reputation and security of a business, it is difficult to see how such a policy could operate in this constrained way. Is it suggested that an employer can have a policy in place that seeks to prevent employees from damaging the business’s reputation or stopping them from releasing confidential information while at work, but leaving them free to pursue these activities outside of working hours? This would be an impractical approach and clearly there are some obligations employees accept as part of their employment relationship that have application whether they are at work or involved in activities outside of working hours.

[48] I am satisfied in all the circumstances that what Linfox was asking of Mr Pearson in terms of his acknowledgement of its social media policy was neither unlawful or unreasonable. It was accordingly entitled to take the action it did in response to his refusal to do so.

[49] There are other matters that I consider are also relevant when considering whether a “valid reason” existed in the circumstances of this matter. Firstly, I am satisfied based on the evidence about how the relevant policies were promulgated and made known that their intent should have been clear and understood by Mr Pearson. I have reached this conclusion based on the evidence of each of the three witnesses who gave evidence on behalf of Linfox and the documentation attached to their witness statements. Secondly, as evidenced by the written warnings he received I am satisfied Mr Pearson was put on notice about the potential consequences of further breaches of the policies and procedures in place at the Distribution Centre.

[50] There is also the question of Mr Pearson’s submission about having been targeted and singled out by Mr Ambler, in particular, for differential treatment. This relates particularly to a bullying complaint he made against Mr Ambler in 2011. This is clearly a significant issue and one that could potentially lead to a response that is capricious or biased against Mr Pearson. However, Linfox submits it investigated the bullying claim and found it had no substance. Mr Ambler also denies it had any impact or influence on his behaviour or actions in regard to Mr Pearson. In addition, Mr Pearson did not provide any additional evidence in support of these submissions. Given this situation I am unable to conclude Linfox or any of its employees were motivated in the way suggested by Mr Pearson.

[51] In all the circumstances I am satisfied Linfox had a valid reason to dismiss Mr Pearson based on an objective analysis of the relevant facts. The individual instances concerning his conduct may not in isolation have justified his dismissal. However, in a similar way to the conclusion reached by Sams DP in Dickinson v Calstores Pty Ltd 20 his conduct involved, in aggregate, a consistent pattern of behaviour that demonstrated a repeated disregard for and refusal to comply with the policies and procedures Linfox had in place in the Distribution Centre. I am satisfied in those circumstances his conduct constituted a valid reason for termination.

(b) whether the person was notified of that reason

[52] Mr Pearson was notified of the reason for his termination verbally and in the letter provided to him on 21 May 2013.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[53] Mr Pearson was provided with the opportunity to respond to the reasons why Linfox believed his conduct warranted his termination in the meeting on 21 May 2013. He was also given the opportunity to respond on previous occasions to a range of issues raised in regard to his conduct, prior to warnings being provided to him. The details of those discussions have been referred to previously in this decision.

(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;

[54] There is no allegation made in this context. Mr Pearson had a support person, being a Union official from the NUW, involved in the discussions that occurred prior to his termination on 21 May 2013. The same official had been involved in previous discussions involving Mr Pearson’s conduct.

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal;

[55] This consideration is not relevant in the present matter as the issues that led to Mr Pearson’s termination involved his conduct, rather than any allegations about unsatisfactory work performance.

(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;

[56] Linfox is a large employer with specialist human resource management expertise. There is nothing apparent that is required to be considered in this context of these considerations.

(h) any other matters that the FWC considers relevant

[57] There is nothing further that requires to be considered in this context.

[58] In conclusion, having considered all the evidence and submissions in this matter, and the considerations in the Fair Work Act I am required to have regard to, I am not satisfied Mr Pearson’s dismissal was harsh, unjust or unreasonable. The application is dismissed.

Gregory C Signature.bmp