| [2016] FWC 1166 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Cole
v
PQ Australia Pty Ltd T/A PQ Australia
(U2015/10896)
COMMISSIONER ROE |
MELBOURNE, 29 FEBRUARY 2016 |
Termination of employment – alleged unfair dismissal Application for relief from unfair dismissal.
[1] Mr Cole was employed full time as a packer on night shift by PQ Australia from August 2011 until his dismissal on 23 July 2015. On 26 July 2015 Mr Cole was told that his dismissal could be converted to a resignation if he agreed to certain terms. On 27 July 2015 Mr Cole submitted a resignation. Mr Cole was paid notice and other entitlements. This included accumulated personal leave which under the relevant collective agreement is payable upon resignation but not upon termination for misconduct. The application for unfair dismissal remedy was made on 11 August 2015.
[2] Mr Cole was stood down with pay from 14 June 2015 until 3 July 2015 and then without pay from 3 July 2015 until the date of dismissal. In standing down Mr Cole PQ Australia advised that in their view Mr Cole “did not seem to be coping very well at work and we are concerned for your welfare.”
[3] PQ Australia did not allege that they had any concerns about the frequency or nature of Mr Cole’s absences from work on personal leave. Mr Cole had not had any lengthy or frequent absences. In fact he had accumulated more than 27 days of unused personal leave in his approximately 4 years of service. Mr Cole was absent for one day on personal leave on 14 June 2015. Mr Cole attended his doctor and eventually provided a medical certificate for this single day absence. He also provided a pathology request form signed by his doctor which included a diagnosis of his condition.
[4] There was no meeting between Mr Cole and PQ Australia management during the period of stand down between 14 June 2015 and 24 June 2015. At the meeting on 24 June 2015 Mr Cole was advised that he could not return to work until he attended a medical examination by a doctor nominated by PQ Australia. Mr Cole was advised that this was not disciplinary action and that PQ Australia had not concluded that he had engaged in any wrong doing but that PQ Australia was concerned “you are having problems from time to time maintaining an effective working relationship with some of your work colleagues.” A medical appointment was arranged by PQ Australia with Dr Baynes for 2 July 2015.
[5] Mr Cole confirms that he was told about the appointment on 30 June 2015. Mr Cole sought to have the requirement to attend the appointment reconsidered. PQ Australia reaffirmed the requirement to attend the appointment. Mr Bonicia of the AWU wrote to Mr Rice on 2 July that: “the concern arises that the evidence Daniel has indicates his being stood down, less than 5 minutes after he called in sick, may establish that the stand down and in turn, the assessment are part of adverse action against Daniel because he called in sick. Daniel’s behaviour subsequent to the stand down can be attributed to the adverse action he experienced in the first instance.” 1 Mr Rice for PQ Australia responded reaffirming the requirement for the assessment. Mr Bonicia responded “If adverse action has in fact occurred then having Daniel do the assessment may be construed as a continuation of the adverse action. Therefore, as we discussed earlier a deferral of the assessment is pertinent at this time”. This exchange was only a few hours before the appointment. Mr Cole says that he did not retrieve a telephone message confirming this request had been denied until after he should have left to attend the appointment.
[6] When Mr Cole failed to attend the medical appointment PQ Australia advised him that he was stood down without pay.
[7] Mr Cole lodged a general protections claim with the Fair Work Commission. PQ Australia refused to participate in a conference about the matter and as a result the application did not proceed. The Fair Work Commission notified the parties of this on 21 July 2015.
[8] On 15 July 2015 Mr Cole was given notice by Mr Doran, Vice President Human Resources for the company based in the US, that failure to respond to the letter and confirm that he was willing to attend a medical assessment by a practitioner selected by the company could lead to his employment being terminated. By email dated 22 July 2015 (US time) Mr Doran advised Mr Cole that he was dismissed from his employment effective from 23 July 2015. The reasons given were the failure to comply with the direction to attend an independent medical examination and failure to comply with the direction to only communicate with Mr Doran regarding this issue. This direction was also contained in the 15 July 2015 letter.
[9] I am satisfied that Mr Cole was instructed to attend a medical examination and refused to attend an independent medical assessment.
[10] On 24 July 2015 Mr Doran emailed an AWU organiser Mr Bonicia advising that if Mr Cole provided a resignation with no restrictions or caveats the company would pay accumulated leave (including sick leave) to which Mr Cole would have been entitled upon resignation and three weeks pay in lieu of notice. On 25 July 2015 Mr Bonicia advised Mr Cole of the offer. Mr Cole continued to protest against what he said was unfair treatment and that he should be able to return to work without a medical examination. He also effectively told Mr Doran that Mr Bonicia was no longer representing him. On 26 July 2015 Mr Doran wrote to Mr Cole stating that:
“The letter of dismissal you received from on on 7/23 is now in full effect as you chose none of the other options presented to you in good faith. …Daniel, no additional emails or further communication will change this outcome as you are now officially no longer an employee of PQ Australia.
For the purposes of helping you move forward to look for new employment opportunities, I will offer one last opportunity for you to consider voluntarily resigning effective July 24th by sending me a simple two line email confirming exactly that, with no caveats, exceptions or other conditions. If I receive that email as described by no later than Wednesday 29th July Australian end of business, I will then accept your resignation which will be what is then reflected in your final employment file designation for leaving PQ, replacing the termination designation. Based on accepting your resignation the company will then issue your unused 207.21 hours of personal leave which is equal to $9,208.21 gross and subject to taxes. Additionally the company will issue you 3 weeks of pay recognising a prior email you sent where you stated that if you resigned you intended to give 3 weeks notice.”
[11] In response on 26 July 2015 Mr Cole reiterated his view that his treatment was unfair and that he was the victim of bullying and “looks like I see you in court”. Following a response from Mr Doran which reiterated the earlier position of the company Mr Cole sent a resignation on 27 July 2015. It said “I refer to your email. I regretfully resigned my position at PQ Australia effective 24 July 2015.” Mr Doran responded on 27 July 2015 (28 July Australian time) “I understand and accept your resignation” and advised that the personal leave and notice payments would now be made. Mr Cole then sent a number of further emails over the next 24 hours which made it clear that he was still contesting the end of his employment. On 29 July 2015 Mr Doran responded that Mr Cole should not persist with his stated intention to return to the work site and that “there is no further information or additional attempts to email which will change the outcome and end of employment with PQA.”
[12] There are of course situations where an employee is dismissed and then subsequently there is an agreement to re-characterise the event as a resignation. This is often accompanied by an agreement not to pursue an unfair dismissal application.
[13] In the circumstances of this case I have no hesitation in concluding that Mr Cole was dismissed by the employer effective from 23 July 2015. There is clear written evidence of this fact. This is reaffirmed in subsequent correspondence. At no point was there mutual agreement to withdraw the termination of employment. Mr Doran on behalf of PQ Australia offered to re-characterise the termination as a resignation on his employment file if a resignation effective from 24 July 2015 was received by 29 July 2015. The resignation was received by that date. However, within 24 hours of acceptance Mr Cole made it clear that he was continuing to dispute the termination of his employment.
[14] I am not satisfied that the events which followed the termination of employment alter the fact of the termination in this case.
[15] PQ Australia argues that the conduct and behaviour of Mr Cole following the decision to stand him down was such as to irreparably damage PQ Australia’s trust and confidence in him and to bring his employment relationship to an end. They argue that Mr Cole was not forced to resign because of the conduct of the employer but because Mr Cole was not prepared to attend the independent medical assessment. There are of course some situations where an employment contract ends due to frustration. Abandonment of employment is the most common example. However, if employer concerns about conduct and performance were generally taken to mean that an employee was not dismissed this would render unfair dismissal protection ineffective. I am not satisfied in the circumstances of this case the employment ended on 23 July 2105 due to the actions of Mr Cole.
[16] Mr Cole argued that the actions of the employer left him with no choice but to resign. PQ Australia argue that Mr Cole had a number of choices. Mr Cole could have, prior to the 23 July letter of termination, agreed to attend the medical examination. It is clear that this option was not open to Mr Cole after the 23 July 2015 letter of termination. After 23 July 2015 Mr Cole had no choice which could undo the ending of the employment relationship. In this sense the resignation was something Mr Cole was forced to do because of the conduct of the employer in dismissing Mr Cole and then stating that if he wanted to receive certain entitlements and if he wanted the employment file to specify “resignation” then he must resign. Mr Bonicia wrote to PQ Australia emphasising this point on 28 July 2015. 2 However, it is not necessary to determine this matter given that I am satisfied that the dismissal in fact occurred prior to the resignation. If I am wrong about this matter I would still be satisfied that Mr Cole was dismissed within the meaning of Section 386(1)(b) of the Fair Work Act 2009. I would be satisfied that Mr Cole “resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer”.
[17] Having concluded that Mr Cole was dismissed at the initiative of the employer for misconduct, Mr Cole is protected from unfair dismissal in that in is not in dispute that:
● PQ Australia is a national system employer.
● PQ Australia is not a small business.
● Mr Cole was employed for a continuous period of more than six months.
● Mr Cole was not dismissed for reasons of redundancy.
● The application was made within time.
[18] I am required to consider the factors in Section 387 of the Fair Work Act 2009.
[19] It is not disputed and I am satisfied that:
● Mr Cole was notified of the reason for the dismissal. If the reason was a valid reason then Section 387(b) has been satisfied.
● Mr Cole was given an opportunity to respond to the allegations which concerned his conduct. There was considerable written communication between the employer and Mr Cole about the requirement to attend a medical examination prior to any return to work. Mr Cole was advised that failure to confirm that he would attend the examination would lead to the termination of his employment. He had the opportunity to respond to that advice and he did respond to that advice. He was also directed not to communicate about this issue with others in management. Mr Cole had the opportunity to respond to this. It is not in contention that he did not comply with this instruction. Section 387(c) has been satisfied.
● Mr Cole was not refused a support person. The AWU represented Mr Cole during most of the period between his stand down and his termination. Section 387(d) has been satisfied.
● The issues raised in the show cause letter and the dismissal letter relate to conduct not performance and so Section 387(e) is not relevant.
● PQ Australia is a medium sized employer with human resource management expertise. Sections 387(f) are (g) are not relevant in this case.
[20] The issues in this case are about whether or not there was a valid reason for termination (Section 387(a)) and other factors (Section 387(h)). For the reasons summarised above the other factors are neutral considerations.
[21] The central issues to be determined in respect to valid reason are:
● Was it reasonable for PQ to require Mr Cole to attend a medical examination by a practitioner selected by the company to assess his fitness for work prior to allowing him to return to work? It is not necessary to determine if the decisions to stand Mr Cole down with pay and then without pay were reasonable. It is the failure to obey the instruction to attend the medical appointment that was the principal reason for the termination of employment.
● Did the failure of Mr Cole to agree to attend the medical examination constitute a valid reason for dismissal?
● Did the failure of Mr Cole to comply with the direction to communicate only with Mr Doran about the return to work issues constitute a valid reason for dismissal?
[22] The issues in respect to other factors are:
● Is the issue of the recording of conversations by Mr Cole relevant under other matters to the question of whether or not the dismissal was harsh, unjust or unreasonable? Is it also relevant to remedy?
● Is the alleged bullying of Mr Cole and management’s response to it relevant to the question of whether or not the dismissal was harsh, unjust or unreasonable?
● Were Mr Cole’s communications between the stand down and the termination inappropriate?
● Is the post dismissal conduct in repeated contact with managers relevant to either merits or remedy?
[23] It is accepted that an employer may have the right, depending upon the circumstances, to require a medical examination where the employer has concerns that an employee cannot perform the inherent requirements of the job. The clearest contemporary statement of this is in the decision in Blackadder v Ramsey Butchering services Pty Ltd 3 and in particular the following:
“67 An employer has, as indicated above, strict obligations under the NSW legislation to ensure the safety and well-being of its employees. The importance of occupational health and safety is also reflected in the Act. Whilst an AWA, in general, prevails over conditions of employment specified in State laws to the extent of any inconsistency, provisions which relate to certain matters, such as occupational health and safety, operate subject to any relevant State law (see s 170VR(2) of the Act).
68 It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift.
69 The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of "necessity" accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 450.”
[24] Based upon this authority I consider that the following matters need to be considered in answering the question of whether the requirement to attend the medical examination prior to return to work was reasonable.
a. Was there a genuine indication of the need for the examination such as prolonged absences from work or absences without explanation or evidence of an illness which related to the capacity to perform the inherent requirements of the job?
b. Had Mr Cole provided adequate medical information which explained absences and demonstrated fitness to perform duties?
c. Is the industry or workplace particularly dangerous or risky?
d. Were there legitimate concerns that Mr Cole’s illness would impact on others in the workplace?
e. Did Mr Cole agree to the assessment by the practitioner selected by the employer?
f. Was Mr Cole advised of the details of the conduct which led to the concerns that he was not fit for duty?
g. Was the medical practitioner advised of the issues of concern and were those matters focused on the inherent requirements of the job? What information was proposed to be given to the medical practitioner about the actual job requirement?
h. Was Mr Cole advised of the matters to be put before the medical practitioner for his assessment?
i. Was the medical assessment truly aimed at determining, independently, whether Mr Cole was fit for work?
[25] Mr Rice described the concern about Mr Cole’s capacity in correspondence to Mr Cole on 17 June 2015 as follows:
“The reason that we have directed you not to attend for work until further notice is that a number of issues have arisen in the workplace over the last few months which have involved or affected you and we are concerned about the impact these issues have had on you and on others.”
The issues were not further particularised to Mr Cole prior to the meeting on 24 June 2015.
[26] In the Statement of Mr Rice 4 he says that at the meeting of 24 June 2015 (some ten days after the stand down began) he described the concerns to Mr Cole as “you are having problems from time to time maintaining an effective working relationship with some of your work colleagues.” Mr Rice also says that he said “we are however extremely concerned that you do not seem to be coping very well at work and we are concerned for your welfare”.5
[27] Mr Rice gave evidence that he cited a number of incidents that led to these concerns at the meeting on 24 June 2015. Mr Cole was not asked to respond to these incidents at the meeting. Mr Cole confirms that Mr Rice did cite a number of incidents. I am satisfied that these incidents were raised and were the incidents which formed the basis of Mr Rice’s concerns and his decision advised at the meeting of 24 June 2015 to require a medical examination prior to any return to work. Mr Rice based his judgment on the reports provided to him by Mr Lutterschmidt the details of which are contained in Mr Lutterschmidt’s evidence.
[28] I will now consider each of the matters 6 relied upon by Mr Rice at the 24 June meeting in turn having regard to Mr Lutterschmidt’s evidence about each of the matters.
[29] The report of this matter by Mr Lutterschmidt 7 accepts that the complaints were in the main justified and that the other employee was not completing tasks before the end of the shift. Mr Cole was advised that he needed to ensure that he was at work on time for a handover. There is nothing in this incident which suggests Mr Cole was erratic or unwell or contribute to a reasonable management concern about Mr Cole’s capacity to perform the inherent requirements of the job due to illness.
[30] Mr Lutterschmidt advised that the rate had been increased. PQ submitted that the increased rate had occurred on other shifts some time earlier. There is nothing unusual or unexpected in Mr Cole advising that he “can’t keep up at this pace. I’m knackered” following the increase in rate. 8
[31] Mr Lutterschmidt says that Mr Cole told him at the time he raised the issue that “he was unsure as to what behaviours and actions from the other employees constituted workplace bullying”. Mr Lutterschmidt provided him with information about the bullying policy and Mr Cole then told him that he had read the material and that he didn’t want to pursue the matter further. There is nothing unreasonable or improper about this behaviour. It does not mean that there were not issues of concern for Mr Cole or that those issues had no justification.
[32] Mr Cole gave evidence of an incident which had occurred in January 2015. Mr Cole provided photographic evidence of a rope noose that he says was placed above his work station. Mr Cole says that he cut it down but it was put up again in the same place the next night. Given the limited number of persons who work in the area Mr Cole believes that he knows the identity of the employee responsible and he has no doubt that the placement of the noose was action directed against Mr Cole. Mr Cole sent an email to Mr Lutterschmidt drawing the matter to his attention. Mr Lutterschmidt did not take any action about the matter.
[33] I am satisfied that this was a very serious incident which is relevant background to the concerns Mr Cole had about the manner in which he was treated by other employees. It strongly suggests that there may have been a reasonable basis for Mr Cole’s concerns. This is particularly the case given Mr Cole is suffering from depression and made a number of references to suicide in his written communications.
[34] The only incidents in May referred to in Mr Lutterschmidt’s statement relate to Mr Gordon McCrae. The incident referred to was in the week prior to 17 May 2015. Mr Lutterschmidt told Mr McCrae that the suggestion that Mr Cole had made would have corrected the problem and prevented the maintenance department from coming in. The report of the discussion of the incident suggests that Mr Lutterschmidt believed Mr Cole was the aggrieved party and there was nothing unreasonable or erratic in Mr Cole’s behaviour. 9
[35] Apart from the matter referred to above, the first matter referred to by Mr Lutterschmidt was on 17 May 2015. Mr Cole provided Mr Lutterschmidt with a report on that incident at the time. 10 The report is clear, calm and reasonable. There is no reason to disbelieve Mr Cole’s account. Mr Lutterschmidt’s account of the meeting to discuss the matter on 20 May 2015 includes an admission by Mr McCrae that he had been aggressive towards Mr Cole.11 Mr Lutterschmidt reminded Mr Cole that he needed to focus on completing all required tasks. However, overall the report does not suggest that Mr Lutterschmidt concluded that there was anything unreasonable or irrational in the behaviour of Mr Cole and it does suggest that Mr Cole had cause for concern about Mr McCrae’s behaviour towards him.
Mr McCrae complained that Mr Cole had left the site on 21 May 2015 without permission. There is no direct evidence as to the truth or otherwise of the allegation. Mr McCrae was not called as a witness.
[36] On 22 May 2015 Mr Cole said that he could not work with Mr McCrae. Mr Cole said that Mr McCrae had called him a smart arse and yelled at him for not responding quickly enough to alarms and Mr McCrae refused to provide assistance in getting raw materials when Mr Cole was under pressure. He raised a number of other complaints about Mr McCrae’s behaviour. Mr Lutterschmidt wrote to Mr Cole “I appreciate your report and am comfortable with the way in which you are handling the situation. If you feel, over time, that you are not seeing an improvement in Gordon’s temperament towards you, I want you to let me know and I will intervene”. 12
[37] There is nothing to suggest that Mr Cole’s response to the behaviour of Mr McCrae was unreasonable or irrational.
[38] The complaint was about Mr McCrae. The allegations were of patronising, aggressive and unreasonable behaviour.
[39] Mr Cole raised as part of the bullying complaint an incident which had occurred in January. Mr Cole alleges that Mr McCrae deliberately used an air lance to flow leaked Qcel towards him. This led Mr Cole to have to run out of the way to get fresh air. If the claim was substantiated it would constitute seriously dangerous and unreasonable behaviour. There was no evidence of any finding by PQ Australia that the incident as claimed by Mr Cole had not occurred. However, PQ Australia submit that I should take account of the fact that Mr Cole did not raise this incident with management until some four months after it occurred and Mr Cole subsequently agreed to shift to work on a regular basis with Mr McCrae. In my experience it is not unusual for a person who has been the victim of unreasonable behaviour to be anxious and fearful about making a complaint. I accept that Mr Cole felt that he could work with Mr McCrae and agreed to move to be rostered to work with him regularly. At the time Mr Cole had concerns about the behaviour of some other employees. The issue of unreasonable behaviour by Mr McCrae only became a major issue for Mr Cole after there were a number of other incidents. Three is no basis for me to doubt the evidence of Mr Cole about this matter and I accept his evidence.
[40] In respect to the allegations about the events of 21 May 2015 Mr McCrae admitted that he had suggested that Mr Cole was a smart arse and agreed that he had spoken aggressively. Mr McCrae also accepted that he had told Mr Cole that he didn’t help him out often because Mr Cole had told Mr Lutterschmidt that Mr McCrae and other employees watched movies on shift and used the air lance to clean up. Arising from the meeting about the complaint Mr McCrae agreed to change the way in which he speaks to Mr Cole and his attitude towards him. Mr McCrae apologised to Mr Cole. Mr Cole said that he accepted Mr McCrae’s response “but said that he would judge GM by his actions”. Mr Lutterschmidt reported that Mr Cole “accepted this outcome and considers this matter closed at this time”. 13
It is clear that the contemporaneous notes of the meeting do not support a conclusion that Mr Cole withdrew the bullying allegation. The contemporaneous notes of the meeting also support a finding that there was a strong basis for the bullying allegation. Mr Cole agreed that the matter was “closed at this time” but made it clear that he would monitor what happened from that point onwards. This is not a withdrawal of the complaint. There is nothing unreasonable about Mr Cole’s behaviour in this respect.
[41] The Statement of Mr Lutterschmidt refers to a text message from Mr Cole of 8 June 2015 in which he advised that he stated “4 years of bullying and being used as the company escape goat is enough Jack. I’m not waiting till morning to sort this out when your happy to come straight out for Gordon’s sake.” Mr Lutterschmidt responded: “wait there. I will be there not long after 6.30am”. Mr Cole responded: “I need to speak to management straight after my shift. I will drive to Laverton if need be. Please notify me of what I need to do.” A meeting was held on the morning of 9 June. Mr Lutterschmidt says that Mr Cole re-raised the matters in the bullying complaint and the January issue. He asked to be transferred back to his old partner to move away from Mr McCrae. Mr Lutterschmidt says that “given the recent events” he wasn’t prepared to agree to this.
[42] Mr Cole gave evidence, which I accept, that the reference in the message to “I’m not waiting till morning to sort this out when your happy to come straight out for Gordon’s sake” is to an earlier occasion when Mr Lutterschmidt came to the site during the night shift in response to concerns raised by Mr McCrae. Mr Cole believed that Mr McCrae was on that occasion trying to blame him for inappropriate behaviour of Mr McCrae. It is not unusual for employees who have been bullied to fluctuate between blaming others and themselves and to be anxious about the consequences of pursuing a complaint. As a consequence it is not uncommon or unreasonable for an employee to fluctuate between enthusiasm to pursue their complaint and reluctance to do so. In context there is nothing unreasonable about Mr Cole’s behaviour or anything that would suggest there was a reasonable basis for concern that he was unable to perform the inherent requirements of the job due to illness.
[43] In the emails of 12 June 2015 Mr Cole apologised for his text message of 8 June 2015 and said that he would do his best to make things work. In that email he says that the environment is stressful for him because “I’ve been dealing with some things outside of work that I manage on my own because my wife is staying in a treatment clinic at the moment but I am doing everything I can not to let this effect my work.” 14 Mr Lutterschmidt asked for some clarification. In response Mr Cole said that “I wanted to let you know that everything is ok with me, I don’t need a counsellor and a little trust will go a long way. I realise I may have lost some of your trust and for that I am sorry. I will attempt to earn it back.” He reiterated his desire to change shift partners but also said that if management would not agree to this then he was prepared to sort the issues out with Gordon and “try and keep the piece”. I am not satisfied that Mr Cole withdrew his request to change shift partners. It is obvious from the correspondence that Mr Cole was stressed and upset. Mr Lutterschmidt was aware of the strong reasons for this stress and upset. Considered in context there was nothing particularly unreasonable in Mr Cole’s behaviour.
[44] Mr Lutterschmidt interviewed Mr McCrae and two other employees about the events on the night shift of 12/13 June 2015. However, he did not interview Mr Cole and at no stage were the claims made by the other employees about the events on that shift put to Mr Cole.
[45] According to Mr Lutterschmidt’s notes Mr McCrae and another employee complained about Mr Cole’s behaviour and performance on the night shift of 12 June 2015. Mr McCrae complained about work not being properly completed and another employee complained about the work station being in a mess when he relieved Mr Cole in the morning. Mr McCrae says that “at 3.30pm I went out to give him his break, the exit line had 5 boxes, the in line had had 4, the box erector had apprx 10, I said Daniel I can’t accept this you need to get up to speed and then come and get me. … At 4am Daniel went to his car and left the line, which was in even worse condition, I followed him out and said what are you doing you cant leave it like that. Daniel said yelling, its 4 oclock Im going on my break. I said don’t yell at me, you don’t like me yelling at you, (continuing with), the other packers can and do leave it loaded, why do you think its ok for you not to.” Mr McCrae wrote that Mr Cole took 50 minutes break and told him he had been to the police station and getting photos of his face.
[46] According to Mr Lutterschmidt’s notes of his interview with Mr Small, Mr Cole told Mr Small that he had only had 1.5 breaks for the entire 12 hour shift and that Mr McCrae had been falsifying the results to make him look bad and that he had been working flat out and that he was never going to work with Mr McCrae again. Mr Small says that Mr Cole said “contrary to belief I have not got depression, my wife has.” Mr Small says that he said to Mr Cole: “A few weeks ago, none of us have a problem with you, you were quiet, kept to yourself and did your job. Then you start carrying a phone around with you recording conversation and place a video recording camera in the packing area. No one trusts you.” Mr Small says that in response Mr Cole apologised. Mr Small then “offered him some advice on how to get through his shifts with GM (Mr McCrae).”
[47] According to Mr Lutterschmidt’s notes of his interview with Mr Fearby, another operator, Mr Fearby said that he told Mr Cole when he wanted to change operators to Mr McCrae in April 2015 “he will experience a totally different operator”. Mr Fearby said that he “is cautious in talking with DC as he feels that his behaviour and mannerisms represent a person who is on a downhill slide”.
[48] Given that Mr Cole’s version of events was not considered it is hard to accept that there was a reasonable basis for PQ Australia to conclude that Mr Cole’s behaviour on 12 June 2015 indicates that he may not be able to perform the inherent requirements of his job on an ongoing basis. Considering Mr Cole’s version of events and the reports provided by Mr Lutterschmidt there is reason to have some concerns about Mr Cole’s work performance and conduct on the night of 12 June 2015. It is clear that he was not well. He took the next night off and went to his doctor. The events also raise significant questions about the behaviour of Mr McCrae. In context there is nothing about the events of 12 June 2015, absent a more fulsome investigation, which included the matters raised by Mr Cole, that could justify a conclusion that Mr Cole may be unable to perform the inherent requirements of the job.
[49] Mr Cole and Mr Lutterschmidt have different versions of this conversation.
[50] Only two workers are rostered to work on a night shift, a packer and an operator. Mr Cole had worked with an operator for a long period of time but moved to work with Mr McCrae from April 2015. As discussed above, there was conflict between Mr Cole and Mr McCrae on the night shift of 12/13 June 2015. Mr Cole advised that he was not coming into work on the following shift. Mr Cole went to the doctor on 14 June 2015 and received a medical certificate that he was unfit for work on the night of 13 June 2015. Mr Cole told PQ Australia that he was fit to return to work. Mr Lutterschmidt says that Mr Cole told him that he was not coming into work on the night of the 13th because he could not work with Mr McCrae and stated that he was not sick. Mr Lutterschmidt stood Mr Cole down from work with pay.
[51] Mr Cole denies telling Mr Lutterschmidt that he was not sick and says that he said that he was sick and that Mr Lutterschmidt told him that he did not believe Mr Cole was sick.
[52] I am satisfied that Mr Cole communicated to Mr Lutterschmidt that he was unhappy about working with Mr McCrae given Mr Cole’s views about Mr McCrae’s conduct which Mr Cole considered to be bullying.
[53] I am not satisfied that Mr Cole said that he was not sick. As a witness I found Mr Cole to be confused upon occasions but I did not find him to be dishonest. Mr Cole made concessions even when these were not favourable to his case. Mr Cole went to the doctor within 24 hours and the doctor confirmed he was unfit for work. Mr Lutterschmidt’s notes of his interviews with other employees about the events of the night of 12/13 March 2015 suggest that Mr Cole was agitated and distressed at the end of that shift. In these circumstances I consider it unlikely that Mr Cole would have said to his manager that he was not sick.
[54] It is not disputed that Mr Cole did obtain a medical certificate and provided it to the employer. Mr Cole was stood down from employment and told that he was not permitted to attend the work premises. Mr Cole gave uncontested evidence that he attended work on about 16 June 2015 in order to hand in the certificate but was instructed to leave the premises. I accept this evidence. Mr Cole gave evidence which I accept that he had the certificate with him with the intention of handing it in at the meeting on 24 June 2015 but forgot to hand it in. This was the first opportunity Mr Cole had to hand in the certificate. An email to management of 26 June 2015 says that the certificate was attached to that email. 15 Mr Rice says that the attachment was not included with the email. The next opportunity was the meeting of 7 July 2015. Mr Cole gave evidence that he handed in the certificate on that occasion and had not been asked previously. Mr Rice says that he first saw the certificate on 3 August 2015. It is not suggested that the delay in provision of the medical certificate in any way affected the decisions of management to stand down Mr Cole or to refuse to allow him to return to work until he had attended a medical examination by a practitioner selected by PQ Australia. In these circumstances it is not necessary to determine the question of when the certificate was handed in.
The period from stand down on 13 June to the meeting on 24 June created considerable uncertainty and anxiety for Mr Cole. I am satisfied that a reasonable person in these circumstances would believe that the employer was attributing responsibility for the conflict which had occurred on the night of 13 June and in the lead up to that event to Mr Cole. This is particularly the case since it was Mr Cole and none of the other participants who were stood down. I am satisfied that this caused Mr Cole considerable anxiety and distress and that this explains his persistent attempts to contact members of PQ Australia management to explain his position and to seek an audience to explain his position.
[55] I am now in a position to answer the questions posed earlier.
[56] There were no prolonged or frequent absences from work. There were two specific alleged absences without explanation and a general suggestion that there had been others. There is no direct evidence about the first alleged absence. Mr McCrae was not called to give evidence. The other absence took place during Mr Cole’s meal break on night shift. He was absent for 50 minutes, including the time of the meal break, as he went to the police station to report the bullying behaviour he was allegedly experiencing. Mr Cole says that he told relevant employees that he was leaving the site during his break. Mr Lutterschmidt says that Mr McCrae denies this but there was no direct evidence from Mr McCrae. There is no evidence of any link between Mr Cole’s absences and any illness which might affect his capacity to perform the inherent requirements of his job. There is adequate medical evidence to justify the absence on 14 June 2015.
[57] There is no reasonable basis to assume that Mr Cole had any illness which related to his capacity to perform the inherent requirements of the job. The fact that Mr Cole disclosed that he was suffering from depression and claimed that he was being victimised and unfairly treated because of that does not provide a reasonable basis to assume that he was incapable of performing the inherent requirements of the job. Absent other evidence, there is no reason to conclude that a person is incapable of performing work as a packer whilst suffering from a depressive illness particularly when the employer is aware that the person is receiving treatment for the illness from a medical practitioner.
[58] For the reasons discussed earlier none of the incidents referred to by Mr Rice give rise to a reasonable concern that Mr Cole may be unable to perform the inherent requirements of his job due to illness. Considering all the matters raised as a whole does not alter this conclusion.
[59] I am satisfied that Mr Cole had provided adequate medical information which explained his whole day absences. The relevant absence which provoked the stand down was on 14 June 2015 and a medical certificate was provided. In the normal course if an employee who is absent on personal leave provides a medical certificate for the period of absence that is sufficient to demonstrate fitness to resume duties at the conclusion of the period covered by the certificate. In the case of prolonged or frequent absence there will be some circumstances where further evidence of fitness to perform duties will be reasonable. There is no basis for further evidence in this case given the short period of absence and the lack of any clear evidence of incapacity. The incidents of allegedly unauthorised absence during earlier shifts does raise some concerns but Mr Cole was not requested to provide medical or other explanation for those absences. In those circumstances the requirement for independent medical examination is not justified.
[60] More stringent requirements for evidence of fitness to perform duties may reasonably be required in particularly dangerous or risky occupations such as airline pilots or meat workers. I have considered the Statement of Mr Rice in respect to the health and safety risks at the site. 16 Although there are some risks associated with chemicals and guarded machinery at the PQ Australia work site I am not satisfied that Mr Cole’s packing job is particularly dangerous or risky justifying abnormal intrusion on private medical matters.
[61] There were some issues of concern about conflict between Mr McCrae and Mr Cole. There was a reasonable basis for proper inquiry into the bullying allegations made by Mr Cole against Mr McCrae. Following inquiry there may have been a basis for concerns about conduct or performance to be raised with either or both of the employees. However, there was no reasonable basis, prior to undertaking such inquiry, to conclude that Mr Cole’s depression would impact on others in the workplace. There were no alleged instances of violent or dangerous behaviour by Mr Cole.
[62] I am satisfied that Mr Cole’s union representative, Mr Bonicia, agreed to Mr Cole attending an independent medical examination at the 24 June 2015 meeting. Mr Cole did not specifically reject Mr Bonicia’s position at the meeting on 24 June 2015. However, I am satisfied that Mr Cole made it clear at all times that he was uncomfortable about this. Mr Cole reiterated his position of opposition within hours of the meeting of 24 June 2015. 17 PQ Australia could have been in no doubt about this given the frequent email communications from Mr Cole. At all times Mr Cole wanted to be given the opportunity to respond to the allegations made against him concerning his conduct and concerning the conflict between himself and Mr McCrae. Mr Cole was told by PQ Australia that he was not to have the opportunity to respond or return to work until after he attended the medical examination.
[63] Mr Cole repeatedly expressed his concern about releasing and sharing information about his medical condition with PQ Australia management. He gave evidence that information about his medical assessment at the time of his employment in 2011 had been shared by PQ Australia management with other employees. Mr Cole gave evidence that he believed that this was the source of bullying behaviour by other employees and the source of difficulties that he had in relation to other employees. Mr Cole said that other employees believed that his initial medical assessment suggested that he had taken drugs. PQ Australia did not refute this evidence and I accept it. In these circumstances I consider that Mr Cole’s reluctance to share medical information to be reasonable. As early as 17 June 2015, that is prior to the requirement to attend an independent medical examination being discussed, Mr Cole advised Mr Lutterschmidt that “also please be aware of my reluctancy to discuss any medical issues with management”. 18
[64] I am satisfied that matters were listed as described in Mr Rice’s statement. 19 However, details were not provided and Mr Cole was not asked to respond.
[65] Mr Rice provided evidence that a document was prepared to provide to the medical practitioner. However, the document was not provided in evidence and there is no evidence that the document was provided to the medical practitioner. The details of the issues of concern and their link to the actual job requirements were not particularised to Mr Cole at the 24 June 2015 meeting. Given this failure I doubt that PQ Australia ever undertook that exercise. I am not satisfied that the document advised the issues of concern which were related to the actual job requirements.
[66] Mr Cole was not advised of the matters to be put before the medical practitioner.
[67] I am not satisfied that the assessment could be truly aimed at determining, independently, whether or not Mr Cole was fit for work given that the employer failed to disclose to Mr Cole the matters to be put before the medical practitioner.
[68] I have some doubts about the assurances PQ Australia gave to Mr Cole that the requirement to attend medical examination did not form part of any disciplinary action and that PQ Australia had not concluded that he had engaged in any wrong doing. Mr Doran in his statement says “having regard to the various work incidents that occurred prior to 14 June 2015 and that manner, tone and content of his persistent unsolicited and unwelcome communications after that date, I do not believe that there is any prospect of the Applicant having a satisfactory or effective working relationship with any employees of the Respondent who will be required to supervise him.” 20 Mr Lutterschmidt makes an identical statement.21 Mr Rice makes an identical statement.22
[69] Shortly after the stand down of Mr Cole, Mr Bonicia of the AWU has a conversation with Mr Rice. Mr Rice’s notes include the following:
“SB: Steve asked whether his standing down was for disciplinary reasons.
DR: Indicated that it was, due to Daniel advising Jack by phone shrtly before his shift was scheduled to start that he was not coming in to work, the reason being not because he was sick but because he could not work with Gordon.
SB: Steve asserted that was incorrect and the Daniel took sick leave on Saturday night and had a medical certificate to demonstrate that he was unwell….
SB: Indicated that this was a very stressful time for Daniel and he wanted to know whether these ”next steps” would involve termination.
DR: I indicated that these next steps did not involve termination (I felt that this was truthful as were are intending to propose to Daniel in the first instance that he undergo a Fit for Work assessment.)” 23
[70] This evidence reinforces my conclusion that the requirement to attend the medical examination did form part of disciplinary action and that the employer had concluded that Mr Cole had engaged in wrong doing particularly on the night of 13 and 14 June 2015 but had not given Mr Cole adequate opportunity to respond to the particulars of any allegations.
[71] Although it may not have been PQ Australia’s intention, the requirement to attend a medical examination in this case meant that a proper investigation of a bullying complaint was delayed or avoided and there was also a failure to deal with concerns about Mr Cole’s conduct or performance in a transparent and fair manner. An employer cannot expect to have a model workforce. A workforce will include people who are ill, are affected by the stresses and strains of life outside work and who may at times be both difficult, unconventional and unusual.
[72] Given my finding above I am satisfied that it was not reasonable for PQ to require Mr Cole to attend a medical examination by a practitioner selected by the company to assess his fitness for work prior to allowing him to return to work.
[73] PQ Australia referred to it’s policies. The fit for work policy is about drugs and alcohol and so has no relevance to this matter. There is nothing in the OHS policy which is relevant to the requirement to attend a compulsory medical examination. The disciplinary policy is not relevant because it provides for a hierarchy of warnings for underperformance and PQ Australia says that the termination was not related to underperformance or misconduct other than the refusal to obey the instruction to attend the medical and the instruction not to communicate with other managers.
[74] For the reasons discussed above the direction was not reasonable and therefore I am not satisfied that the failure to agree to attend the medical examination constituted a valid reason for dismissal.
[75] The letter from Mr Doran of 15 July 2015 included the following:
“As all future communications regarding your work status will be with me, any evidence of you continuing to barrage either Jack or David with emails or texts regarding this matter will be viewed as additional examples of your refusal to cooperate in the process outlined which was intended to resolve this issue.” 24
[76] I am satisfied that this was a direction from management to Mr Cole. I am also satisfied that the direction was reasonable. Mr Cole had sent a large number of communications to both Mr Lutterschmidt and Mr Rice. It was reasonable for PQ Australia to determine a single point of contact to deal with the issues.
[77] The dismissal letter referred to the blatant disregard of instructions to not contact local management as the matter which formed part of the decision to dismiss Mr Cole. This is a clear reference to the direction of 15 July 2015 quoted above.
[78] Mr Lutterschmidt received a text message from Mr Cole on 19 July 2015. That text message was a clear breach of the direction of 15 July 2015 not to communicate with others about the return to work issues. PQ Australia did not produce any other communications from Mr Cole during the period from 15 July 2015 until the date of the dismissal which were in breach of the direction. Mr Rice gave evidence that there were a large number of communications from Mr Cole to him in the period leading up to 14 August 25 but there is no evidence as to how many were addressed directly to Mr Rice during the period from 15 July 2015 to 23 July 2015. Mr Rice was “copied” into some communications between Mr Cole and Mr Doran during this period but I do not consider this to be a clear breach of the direction. It is alleged that Mr Cole visited the work site on 21 July 2015 in an attempt to discuss matters with management. He was turned away by security.
[79] Although the term bombardment might be appropriate to describe the number of communications with Mr Lutterschmidt and Mr Rice in the first two weeks of July 2015, it would not be appropriate to describe the number of communications to them in the period from 15 July 2015 to 23 July 2015 as bombardment. I accept the evidence of Mr Doran, Mr Rice and Mr Lutterschmidt that there was a bombardment of communications in the period following the dismissal.
[80] During proceedings PQ Australia suggested that the misconduct related to directions given not to contact or harass local management. They referred to emails and letters from Mr Rice to the applicant during the period from 17 June 2015 to 10 July 2015. The communication of 17 June was that Mr Cole should not discuss the matter with his work colleagues. I am not satisfied that this was a reasonable instruction. On 9 July 2015 Mr Rice asked that communications be directly with him and that Mr Cole no longer contact Mr Lutterschmidt. Mr Cole was reminded of this on 10 July 2015 and Mr Rice said that further texts had been sent to Mr Lutterschmidt. I am not satisfied that these communications are relevant to the instruction issued by Mr Doran on 15 July that communications should no longer be with Mr Rice but should be with him directly.
[81] I am not satisfied from the evidence that there was serious and continuous breach of the direction during the period from 15 July 2015 to 23 July 2015.
[82] Given Mr Cole’s obviously desperate desire to have the opportunity to respond to the allegations which were the basis of PQ Australia’s direction that he attend a medical was reasonable, I am not satisfied that the limited breaches of the direction not to communicate with others about his work status were sufficiently serious as to be a sound, defensible or well founded reason for dismissal. The breaches of the direction were not a valid reason for termination.
[83] Right up until the termination on 23 July 2015 PQ Australia assured Mr Cole that he could return to work provided he attended the independent medical examination. PQ Australia was therefore clearly of the view that the breaches of the direction not to contact Mr Rice and Mr Lutterschmidt were not in themselves sufficiently serious to justify termination of employment.
[84] PQ Australia rely on the decision in Schwenke v Silcar Pty Limited. 26 This case is clearly distinguishable. In the Schwenke case the issue of the recording of conversations was specifically referred to in the letter of termination as a reason for the dismissal. In this case it was never raised as a reason for dismissal even though Mr Cole repeatedly raised his desire for the recording of the meeting of 9 June 2015 to be heard by management. In the circumstances of this case PQ Australia specifically told Mr Cole that no disciplinary action was being taken against him. The issue of the recordings was known to management prior to the dismissal and was the subject of correspondence between Mr Cole and PQ Australia. The issue did not significantly contribute to the decision to terminate Mr Cole.
[85] Mr Cole gave evidence that he had approval to make various recordings of conversations to assist his training to become an operator. He could replay the recordings to help him remember what needed to be done. He says that the camera was to be placed so that he could leave his work station to move to other parts of the plant to assist his training in the operator work. The camera would enable him to observe when he needed to return to his work station. Mr Cole says that the camera was never in operation and that he fully intended to seek approval before he used the camera. There was no direct evidence which contradicted Mr Cole’s evidence on these matters and I accept his evidence. I appreciate why other employees might have considered the behaviour in installing the camera and recording conversations to be both strange and inappropriate.
[86] Mr Cole says that Mr Lutterschmidt was aware that he was recording the meeting of June 9. This was the conversation most often referred to by Mr Cole in his materials. Mr Lutterschmidt says that he was not aware of the recording.
[87] Although I accept Mr Cole’s evidence in respect to the recordings he made for training purposes I consider it unlikely that PQ Australia managers would have agreed to the recording of meetings to discuss workplace relations incidents and issues. I consider that making such recordings was inappropriate and damaging to the trust managers have in Mr Cole. I also consider that the placement of the camera was inappropriate.
[88] This is a matter which is relevant to the issue of whether or not reinstatement is appropriate and also, to the extent this matter contributed to the decision to dismiss Mr Cole, as to whether or not there should be a deduction from compensation for misconduct.
[89] The making of unauthorised recordings can, depending upon the circumstances, be a valid reason for dismissal. Considering all of the circumstances it is not a valid reason for dismissal in this case. However, it is a factor which I have considered in making the overall decision as to whether or not the termination was harsh or unreasonable. The placement of the camera and the making of the recordings are a factor which stand against a finding that the termination was harsh and unreasonable. However, I do not consider that they are a strong factor in this case which outweighs the absence of a valid reason for termination.
[90] I am satisfied that Mr Cole had raised with management a number of matters which suggested that he was the victim of bullying behaviour by other employees. Following a meeting where Mr Cole agreed to a possible resolution of his bullying complaint against Mr McCrae there were other incidents which Mr Cole believed included unreasonable behaviour by Mr McCrae. After the June 12 events Mr Cole expressed his desire not to have to work further with Mr McCrae. Mr Lutterschmidt had earlier found that there was some basis to the claims of unreasonable behaviour which had been raised by Mr Cole. PQ Australia failed to properly investigate the events of June 12. They did not get Mr Cole’s side of the story. In these circumstances it is understandable that Mr Cole would feel his side of the story was not being listened to and that the requirement for the medical examination was action which potentially threatened his employment. The failure of PQ Australia to adequately deal with serious bullying allegations is a relevant factor in judging some of the unusual and obsessive behaviour of Mr Cole including the issues of repetitive and unwelcome communications and the recording of communications. .
[91] PQ Australia submits that Mr Cole’s emails and text messages to managers were “rambling, inconsistent, frequently incoherent, and in some cases threatening and caused alarm to the individuals concerned.” PQ Australia also say that on one occasion Mr Cole attempted to access the site without authority whilst stood down “requiring the Respondent to employ additional security at the site out of concern for the safety of its employees.” PQ Australia submits that Mr Cole’s conduct amounted to intimidation and harassment. I have considered all of the written communications. 27
[92] Mr Doran says that he has received 120 emails from Mr Cole since 15 July 2015. Mr Doran says that Mr Cole has made “threats to enter the Respondent’s premises without authority and has threatened to commence litigation against the Respondent’s employees.” 28 Mr Rice made an identical statement.29 Mr Lutterschmidt has made an almost identical statement.30 I do not consider a threat to commence litigation in circumstances where an employee has justifiable grievances could be a consideration in determining the merits or the appropriate remedy in an unfair dismissal case.
[93] It is certainly true that reading Mr Cole’s emails following his stand down and prior to the termination of employment reveals Mr Cole’s anguish and his desperate attempts to get management to appreciate his side of the story in respect to the incidents raised by PQ Australia. The emails are repetitive and emotional. I accept that the emails and texts were not welcomed by Mr Lutterschmidt and Mr Rice. The content in some respects appears strange. For example the letter of 22 July from Mr Cole to Mr Doran says that “your manager Jack should be in jail for what he’s done” and that “my manger is mates with the most psychotic control freak on earth”. Mr Cole writes that the context is that he “was diagnosed with depression on June 14 and not having anyone to help get me through it.” However, when considered in context it is understandable that Mr Cole felt compelled to explain his version of events in respect to the incidents raised and express his feelings of hurt and perceived injustice. The communications do not contain any threats of violence.
[94] I consider that the volume of the communications and some of their tone and content to be inappropriate. However, I do not consider that they constitute of valid reason for termination. They are also not so significant as to significantly affect my overall judgement as to whether or not the termination was harsh or unreasonable.
[95] After the point of dismissal Mr Cole’s communications with Mr Doran became more erratic and repetitive. I consider that the number of communications to be oppressive and they amount to bombardment. I appreciate the very high level of anxiety and distress which has led Mr Cole to take these actions. However, I accept the submission of PQ Australia that the nature of these communications must be taken into account when considering remedy. I am satisfied that the communications, when considered as a whole, have been destructive of the relationship between the parties and it is difficult to conceive how the relationship could be successfully re-established.
[96] There is no direct evidence to support a finding as to whether or not Mr Cole followed Mr McCrae on 8 August 2015.
[97] The communications do not contain any threats of violence.
[98] As mentioned earlier, the factors other than valid reason and the other matters are a neutral consideration. For the reasons set out above none of the other factors outweigh the harshness and injustice of termination without a valid reason. The termination was therefore unfair because it was harsh and unjust.
[99] Mr Cole was originally seeking reinstatement. During the proceedings he accepted that reinstatement was not a viable option given that intervention orders are in place until February 2017 which prevent Mr Cole from being within a specified distance of his managers and the workplace. The intervention orders were made ex parte. It is therefore possible that Mr Cole could be successful in an application to set aside the orders. However, it is not possible for me to make a reinstatement order conditional upon such an outcome. For the reasons discussed earlier I also consider that the recordings made by Mr Cole and the post dismissal communications have made reinstatement inappropriate.
[100] I consider that an order for compensation is appropriate in the circumstances of this case.
[101] There was no submission that any order I might make would affect the viability of the enterprise.
[102] I take into account that Mr Cole had approximately four years of service.
[103] Mr Cole received three weeks’ notice payment. This must be taken into account. Mr Cole was paid out his accrued personal leave. This is an entitlement under the relevant agreement where an employee resigns. Given that I have found that there was no valid reason for termination I consider that this payment is an entitlement under the relevant agreement. Unlike payments of accrued annual leave this cannot be considered as earnings attributable to the period prior to dismissal. I consider that it is, like the payment for the notice period, remuneration earned by Mr Cole from employment during the period since the dismissal.
[104] Although I have found that the recordings made by Mr Cole and the post dismissal communications were misconduct, I am not satisfied that this misconduct contributed to the decision to dismiss him. I accept the evidence of the PQ Australia witnesses that the two reasons for the dismissal were the failure to follow the instruction in respect to attending the medical and to cease communications with certain managers. I therefore can make no discount for misconduct.
[105] Mr Cole has not earned any income from employment since the dismissal apart from $500 earned from casual rubbish removal work which is not on going. Mr Cole gave evidence that he has applied for 25-30 jobs and has been using Seek and other job agencies. He says that he only started looking for work relatively recently as he was focused on getting his job back with PQ Australia. In all of the circumstances I accept that Mr Cole’s distress and his focus on this case go some way to explaining why he did not seek other work until recently. I will therefore make a small discount of 5% due to inadequate efforts to mitigate the loss.
[106] There is no contest that Mr Cole was very attached to his job with PQ Australia. He was well established in the company and had been employed for four years which is not a short period. He had every intention of staying with the company for a long time. Until 2015 there were no serious issues with his capacity or conduct which would have affected this ambition. I am satisfied that the only significant factors which limited the future length of employment were the matters which flowed from the alleged bullying complaints and the consequential responses of Mr Cole and the company. I have no doubt from reading the correspondence and observing Mr Cole that his health has deteriorated since the termination of his employment. However, I cannot assume that would have happened if the unfair dismissal had not occurred. However, I do take into account that there were some issues of concern about Mr Cole’s conduct prior to termination. I therefore conclude that Mr Cole would have been employed for a further 9 months or 39 weeks.
[107] Mr Cole was paid $9208.21 for his accrued personal leave and was paid three weeks’ in lieu of notice making a total payment of $14,925.17.
[108] There are 32 weeks between the date of the dismissal and the date of this decision. There will be two weeks between the making of the order and the date of payment of compensation. Mr Cole would have earned $57,416.48 during this period if the dismissal had not occurred. I am satisfied that Mr Cole’s total earnings in this period have been $15,425.17. I do not consider that Mr Cole will earn anything during the period from the date of the hearing of this matter and the date of the payment of compensation. I do not consider that any deduction for contingencies is necessary or appropriate given that the factors are mostly known and I have already discounted for some contingencies in estimating the period of future employment. This leaves net compensation for the 34 week period of $41,991.31.
[109] During the remaining 5 weeks Mr Cole would have earned a further $8,443.60. I will deduct 20% from this amount for contingencies leaving $6332.70.
[110] The total compensation is therefore $48,324.02. I deduct 5% from this amount for inadequacy of efforts to mitigate loss leaving an amount of $45,907.82.
[111] There are no other matters I consider relevant. The issues surrounding the inappropriate communications and the recordings are adequately dealt with in the decision not to order reinstatement.
[112] The income Mr Cole would have earned from six months of employment was $43,906.72. As the amount of compensation I have determined exceeds the six month cap, the six month cap applies.
[113] I will issue an Order that compensation of $43,906.72 be paid, less appropriate taxation, within 14 days. I will provide the employer with liberty to apply for variation of the payment period.
COMMISSIONER
Appearances:
Mr D Cole represented himself.
Mr C Barton appeared for the Respondent.
Hearing details:
2016
Melbourne
February 11
1 Exhibit R8, Attachment 42.
2 Exhibit R8, Attachment 69.
3 [2002] FCA 603.
4 Exhibit R1 at para 7.
5 Exhibit R1 at para 7.
6 The matters are set out in Exhibit R2 at para 7, Statement of Mr Rice.
7 Exhibit R8, Attachment 8.
8 Exhibit R8, Attachment 12.
9 Exhibit R8, Attachment 16.
10 Exhibit R8, Attachment 15.
11 Exhibit R8, Attachment 16.
12 Exhibit R8, Attachment 18.
13 Exhibit R8, Attachment 22.
14 Exhibit R8, Attachment 26.
15 Exhibit R8, Attachment 39.
16 Exhibit R7 at paras 17 to 19.
17 Exhibit R8, Attachment 38.
18 Exhibit R8, Attachment 35
19 Exhibit R1 at para 7.
20 Exhibit R5 at para 26.
21 Exhibit R6 at para 49.
22 Exhibit R7 at para 72.
23 Exhibit R8, Attachment 34.
24 Exhibit R8, Attachment 51.
25 Exhibit R7 at para 55.
27 Exhibit R8, Attachments 34-69.
28 Exhibit R5 at para 24.
29 Exhibit R7 at para 72.
30 Exhibit R6 at para 50.
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