[2015] FWC 5842
The attached document replaces the document previously issued with the above code on 28 August 2015.
The Decision has been refiled to correct the dates in paragraphs [1] and [2].
Associate to Commissioner Roe
Dated 14 September 2015
| [2015] FWC 5842 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ian Horgan
v
Asia Pacific International College Pty Ltd
(U2014/13049)
COMMISSIONER ROE |
MELBOURNE, 28 AUGUST 2015 |
Termination of employment – alleged unfair dismissal.
[1] Dr Horgan was employed as a full time course coordinator at Asia Pacific International College Pty Ltd (APIC) between March and October 2014. Dr Horgan was dismissed by email on 5 October 2014. The email did not specify the particular reasons for the termination of employment. Dr Horgan was not advised that his employment was at risk and was not given an opportunity to respond prior to Dr Jaafari, the Principal of APIC, sending the termination email.
[2] There was extensive email correspondence between Dr Jaafari and Dr Horgan during the seven months of employment in which Dr Horgan expressed his dissatisfaction with management of APIC and APIC expressed its dissatisfaction with aspects of Dr Horgan’s conduct and performance. Dr Jaafari outlined in considerable detail his concerns on 24 July 2014. A warning was issued on 11 September 2014 concerning “insulting others and bad mouthing the college.”
[3] The application for unfair dismissal remedy was made on 6 October 2014. A conciliation was scheduled but APIC objected to participating and raised an objection that it was a small business employer and therefore Dr Horgan did not have sufficient service to bring an unfair dismissal application. That matter was heard on 12 December 2014. A decision was issued dismissing the objection on 25 May 2015. 1 This matter was heard on 17 August 2015.
[4] There was voluminous material in this matter. It is not necessary to determine the truth or otherwise of every accusation made by Dr Jaafari on behalf of APIC against Dr Horgan particularly given that the reasons for termination were not put to Dr Horgan.
[5] I am satisfied that Dr Horgan is protected from unfair dismissal and that:
● APIC is a national system employer.
● APIC is not a small business.
● Dr Horgan was employed for a continuous period of more than six months.
● Dr Horgan was not dismissed for reasons of redundancy.
[6] I am required to consider the factors in Section 387 of the Fair Work Act 2009. It is my assessment that the factors in Section 387(b) to (h) are largely uncontroversial in this case. The parties may disagree about some of the conclusions but the facts upon which those conclusions are based are not fundamentally in contention. It is the issue of valid reason (Section 387(a)) where there is greatest controversy.
[7] APIC allege that Dr Horgan’s communications with Dr Jaafari, students and other staff were inappropriate and disrespectful. It is not necessary to consider the credibility of the witness evidence of Dr Horgan or Dr Jaafari as the emails speak for themselves. I am satisfied that the examples I give are representative of the general tone of Dr Horgan’s communications.
[8] Dr Horgan said the following concerning a particular IT employee of APIC:
“OK. I’ll tell the students that it was a dream. Everything is perfect and they shouldn’t be upset. .. Anybody want to volunteer to apologise to the affected students? I’m fed up of fielding IT related issues from students. You may tell me that it’s wonderful but I know different. I want a report acknowledging issues, identifying causes and solutions.” 2
[9] Dr Horgan copied the abusive email to other more senior management. Dr Horgan was not responsible for the work of the IT employee and had no authority to direct them to provide a report. Dr Jaafari had earlier advised Dr Horgan in considerable detail that there were limitations on the system, the steps that were being taken to improve it, that the IT worker had a lot on their plate and was stressed and that staff needed to be careful about their expectations of IT. 3
[10] Dr Horgan later wrote to the IT worker with a copy to a range of others that the IT systems “are crap for people in Melbourne. I’m used to extensive testing to very specific test-plans to confirm the functionality of a system. Could somebody do the job properly?” 4 Dr Jaafari warned Dr Horgan as a result of this email. He made it clear that Dr Horgan had “no right to publicly condemn the work and initiatives of other people” and stated that the insulting and bad language was contrary to the code of conduct.
[11] When Dr Horgan was told that staff had complained about his abusive attitude he responded to Dr Jaafari: “As for the childish charges from APIC staff about my complaints about the system issues, I suggest you get staff that can do their job instead of defending them.” 5 In another email Dr Horgan repeated that “it’s just another childish complaint”.
[12] Dr Horgan implied that Dr Jaafari and APIC had “duped” students concerning the masters course. Dr Horgan was trying to explain why student engagement was so poor. I am satisfied that one of the reasons Dr Horgan had difficulty engaging the students was because there were changes to the credit recognition granted to those who completed the course. However, this was a recent development. It had not been the situation at the time of enrolment and Dr Jaafari properly informed students of the development. At another stage Dr Horgan accused Dr Jaafari of misinforming the students. There was no basis for Dr Horgan to accuse Dr Jaafari of duping or misinforming the students. I reject Dr Horgan’s suggestion that all he was doing was reporting the feelings of the students.
[13] Dr Jaafari was critical of Dr Horgan’s failure to ensure that the students attended the course and participated in assessments. I accept that some of the issues were not due to Dr Horgan’s failings. However, it is clear that a number were. Dr Jaafari made it clear in his communications with Dr Horgan that he understood that the changed course credit status was a difficult matter to deal with and he also acknowledged that some of the students were not serious. Dr Horgan continued to see all the problems and none of the solutions and largely failed to take responsibility. However, Dr Horgan wrote to Dr Jaafari “Do you take any responsibility, Ali?” 6 Dr Horgan wrote to Dr Jaafari “I had a horrible time this semester, partially because I was complacent about the students doing what was best for themselves without the need for my harrying.”
[14] Dr Horgan wrote to his students as a group saying that “My general feeling is that the majority of you want to pass with no effort”. Although it was made clear to Dr Horgan that he did not have the responsibility to expel or exclude students, Dr Horgan told students that if they did not improve their attendance they would be expelled. Some of Dr Horgan’s communications with students were sarcastic and accusatory.
[15] In July 2014 Dr Jaafari met with a number of students who informally complained about Dr Horgan. Dr Jaafari also looked at the student’s progress and other materials. Dr Jaafari raised a number of detailed concerns with Dr Horgan about his approach. The response of Dr Horgan was vitriolic. For example he said to Dr Jaafari “you happily bash my reputation and expect me to sit back and take it” and “you don’t have a moral right to formally question my integrity without giving me a right of reply”. Dr Horgan threatened to openly confront the students who had complained. Dr Horgan then suggested that if Dr Jaafari wanted to find the source of the problem with the student’s motivation and performance he should “look in the mirror”.
[16] Dr Jaafari did not simply rely upon the students’ complaints as the basis for raising a range of concerns with Dr Horgan. He relied upon a range of other data and observations. Dr Jaafari read emails which had been sent to students which were threatening. Dr Horgan accepted that he had told students that they were not required to attend project sessions for a period of time contrary to policy. Dr Jaafari considered that students had not received adequate coaching and assistance. There was one student accusation that particularly upset Dr Horgan and that was that some of his comments had racial connotations. Dr Jaafari did not say that he agreed with or accepted this observation and it was not the basis for his general conclusions. Dr Jaafari did not generally circulate or repeat the accusations. The record of the meeting was only sent to Dr Horgan and his teaching colleague Dr Care.
[17] It may be that Dr Jaafari could have made his position clearer but I cannot find any email where Dr Jaafari accepts or adopts the students’ accusation about racial connotations. However, Dr Horgan demanded “please email me an apology withdrawing the racist accusation that you inferred in a previous email and copy Nishi”.
[18] Dr Horgan argues that he had legitimate concerns about the IT system, about the quality of the students, about the information and expectations given to the students which led to them being dissatisfied and about the training and support provided to him on the APIC systems. Dr Jaafari argues that Dr Horgan was given adequate training and support and that other staff did not have the same problems as Dr Horgan. An examination of the many emails between Dr Jaafari and Dr Horgan demonstrate that Dr Jaafari did make many attempts to address Dr Horgan’s concerns and to provide him with assistance to better navigate and learn APIC’s systems. Dr Jaafari raised a number of other concerns about Dr Horgan’s performance. I accept that some of the alleged poor performance can be explained by the difficult situation created by the changed credit recognition of the course. It is not necessary to determine these matters as there is no excuse for Dr Horgan’s communication style, particularly given his role as an educator and a course coordinator.
[19] There is no excuse for the abusive and highly critical communications to be copied to external lecturers and other employees. Dr Horgan’s communication style was destructive of the employment relationship. Given that Dr Horgan was new to APIC he had a responsibility to build relationships with the management of APIC and to be respectful of APIC’s systems and goals. This does not mean that he should be a sycophant. This does not mean that he should not raise legitimate issues. What it does mean is that his communications should show basic courtesy and respect. They did not.
[20] I am satisfied that Dr Horgan’s communications with Dr Jaafari, students and other staff were inappropriate and disrespectful. Dr Horgan was warned and counselled about this matter and so I am satisfied that he was aware that the behaviour was not acceptable. The behaviour was repeated. I am therefore satisfied that this constituted misconduct and that it is a valid reason for termination.
[21] Dr Horgan was not notified of the reasons for his termination (Section 387(b)). However, he was aware of concerns about his communication style and had been warned about this issue only a month earlier. This is a factor which stands in favour of a finding that the termination was unfair but it is not a strong factor in the circumstances.
[22] Dr Horgan was not given an opportunity to respond to any reason for his dismissal related to his conduct or capacity. I am satisfied that the reason for termination related to Dr Horgan’s conduct and performance but he was not told of the reasons (Section 387(c)). Dr Horgan was given some opportunity to respond to concerns about his conduct and performance in the lead up to the termination. However, he was not told that his employment was at risk and he was not given an opportunity prior to a decision being made to influence the decision maker, Dr Jaafari. This is a factor which stands in favour of a finding that the termination was unfair.
[23] APIC argues that providing Dr Horgan with an opportunity to respond would not have made any difference. APIC argues that Dr Horgan responded in the same defensive and aggressive manner to every matter raised with him. In cross examination Dr Horgan said that if he had been given the opportunity to respond he would have demanded an independent investigation into the students’ complaints.
[24] However, I do not accept the argument that the right to respond would not have made a difference. I am satisfied that Dr Horgan may have responded differently if he had been clearly told that his employment was at risk and if the complaints against him had been clearly documented and if it was made clear that these complaints were completely separate from any accusation made by a student about references to race and that there was no reliance on that matter. Dr Horgan saw himself as the falsely accused victim in this situation and this was one factor behind his inappropriate conduct. If the situation was put directly and clearly to him it is possible that he may have made a sensible and constructive response. I am not saying that this is what would have occurred but rather it is a real possibility.
[25] Dr Horgan was not refused an opportunity to have a support person because there was no termination meeting (Section 387(d)). This is a neutral factor.
[26] The dismissal to some extent related to unsatisfactory performance with regard to student and course management and communication with students and management. These issues were brought to Dr Jaafari’s attention on at least 24 July 2015 and 11 September 2015. A warning about inappropriate communication with other staff was issued on 11 September 2015 (Section 387(e)). This is a neutral factor in the circumstances of this case.
[27] APIC is a medium sized employer and it does not employ specialist human resources personnel (Sections 387(f) and (g)). Regardless of an employer’s size the basic principle of fairness applies that an employee has a right to be informed of the allegations against them and the right to have an opportunity to respond to the allegations made against them prior to a decision being made. I am satisfied that the complete denial of these principles in the circumstances of this case cannot be excused or explained by the size of the employer or the lack of expertise. This is a neutral factor in the circumstances of this case.
[28] APIC has a Code of Conduct. Dr Horgan acknowledged that he was made aware of the Code when employed and that the Code required that he treat both students and other staff with respect, dignity and courtesy. I accept that this is a factor which stands in favour of finding that termination for behaviour where staff were not treated with respect, dignity and courtesy is more likely to be fair (Section 387(h)).
[29] In July 2014 Dr Horgan had requested an investigation of the informal allegation made by a student or students to Dr Jaafari and a recruitment agent that Dr Horgan’s behaviour had been racially discriminatory. Dr Jaafari had agreed, in July 2014 and then again at a later date, to an independent investigation but this did not occur. Dr Horgan was extremely upset and offended by the allegation. Dr Jaafari was clear that he and APIC made no finding concerning the allegation and there was no formal complaint by the students. Dr Horgan demanded the students be required to put the allegations to him so that he could respond. Dr Jaafari correctly rejected this demand as contrary to APIC policy. Dr Jaafari said that although he had told Dr Horgan that he agreed to an independent investigation Dr Jaafari did not proceed to engage an investigator because he felt that Dr Horgan had understood the concerns and was moving on and being more cooperative and also because Dr Jaafari was very busy. I am not satisfied that this is a satisfactory explanation. If Dr Jaafari thought that events had moved on then he should have consulted Dr Horgan before making a decision not to proceed with the investigation. I am satisfied that Dr Horgan had not moved on and consistently wanted an investigation to clear his name. When the matter came up again in October 2015 Dr Jaafari was of the view that the employment relationship had broken down and that the risks of continuing the employment were too great and therefore decided to terminate the employment. I am satisfied that the fact that this matter was unresolved affected Dr Horgan’s general demeanour and his capacity to respond to other matters. This is a factor which stands in favour of a finding that the termination was harsh or disproportionate (Section 387(h)).
[30] I have weighed up the factors described above. Although the valid reason for the termination is a strong factor in the circumstances of this case and the dismissal was not unreasonable it does not outweigh all the other factors. The dismissal was unjust because Dr Horgan was not advised of the reasons and given an opportunity to respond to them. There was also some harshness because Dr Horgan’s judgment was clouded by the failure to resolve the issue of the student complaint in the manner Dr Jaafari had agreed it would.
[31] Taking all of these factors into account I am satisfied that Dr Horgan was unfairly dismissed.
[32] Dr Horgan does not seek reinstatement. The relationship between the parties has been poisoned and this is illustrated by the intensive stream of consciousness email communications. In all the circumstances I am satisfied that reinstatement would not be appropriate. However, I do consider that an order for compensation would be appropriate.
[33] I have considered each of the requirements in Section 392 of the Act. There was no suggestion that any order I might make would affect the viability of the enterprise.
[34] The length of service of 7 months is a relatively short period of employment.
[35] The role of course coordinator in a small college is vital. The relationships between the course coordinator and the leadership of the college are critical to the success of the college. These relationships do take some time to develop. However, I am satisfied that within the first six months it was reasonably clear to both parties that the relationships were not good. Given this and the relatively short period of employment and the serious problems with the relationship I have estimated that the employment relationship would only have continued for a further six weeks had the termination not occurred.
[36] I am satisfied by the evidence of Dr Horgan that he made adequate efforts to mitigate his loss in that he has been regularly applying for new employment.
[37] Dr Horgan has not earned anything from employment in the period since the dismissal.
[38] I am satisfied that Dr Horgan engaged in misconduct. That misconduct was both significant and repeated. I consider that any award of compensation should be discounted by 33.33% for that reason.
[39] There are no uncertainties or reasons for deduction for contingencies.
[40] I therefore determine and order that the amount of compensation should be the payment of four weeks’ pay including superannuation. The amount shall be paid within fourteen days with appropriate taxation deducted. The parties are at liberty to apply for a variation to the order should the calculation of the amount to be paid be in dispute. The Order is published separately.
COMMISSIONER
Appearances:
Mr I Horgan represented himself.
Mr J Franken appeared for the Respondent.
Hearing details:
2015
Melbourne
August 17
2 Email 12 May 2014.
3 Email of 8 May 2014.
4 Email of 11 September 2014.
5 Email of 5 October 2014.
6 Email of 26 July 2014.
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