[2016] FWC 3709 [Note: An appeal pursuant to s.604 (C2016/4303) was lodged against this decision.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Peter Carroll
v
Karingal Inc
(U2015/11820)

COMMISSIONER CIRKOVIC

MELBOURNE, 8 JUNE 2016

Application for relief from unfair dismissal.

Introduction

[1] On 15 September 2015, Mr Peter Carroll (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Karingal Inc (Karingal) (Respondent).

[2] On 30 September 2015, Karingal filed a response to Mr Carroll’s application.

[3] On 21 October 2015, the application was listed for conciliation before a Commission Conciliator, but remained unresolved at the end of the conciliation.

[4] Consequently the matter was listed for hearing.

[5] Mr Carroll’s application was heard on 18 January 2016, 19 January 2016, 20 January 2016, 9 February 2016 and 19 February 2016. Closing submissions were filed by the parties and oral submissions were heard on 2 May 2016. Mr Carroll gave evidence on his own behalf. The following witnesses gave evidence for Karingal:

Background

[6] On 16 December 2013, Mr Carroll commenced employment with Karingal as an Audit and Risk Manager.

Formal complaints against Mr Carroll

[7] On 14 and 25 of May 2015 formal complaints were made against Mr Carroll by two of his direct reports; Ms Hristovska and Ms Entwistle. 1 The complaints were made in regard to Mr Carroll’s management of, and behaviour towards, the employees.2

Formal complaint by Mr Carroll

[8] On 21 May 2015, Mr Carroll raised a formal grievance, against Ms Hughes, with Mr Wilkin. 3 Later that same day Mr Wilkin informed Ms Hughes that Mr Carroll had lodged a complaint against her.4

[9] On 26 May 2015, Mr Carroll was asked to work from home and told to continue to do so until a resolution could be determined. 5 That same day Mr Wilkin made the decision to engage an independent organisation, WorkLogic, to conduct the investigations into the various allegations.6

Investigation by WorkLogic

[10] WorkLogic conducted a preliminary assessment of each of the complaints. 7 On 22 June 2015, WorkLogic emailed Mr Wilkin the preliminary assessment of Mr Carroll’s complaint against Ms Hughes, with the recommendation that mediation was the most appropriate approach.8 Karingal made the decision that the mediation should not occur until after the other investigations had concluded, in case mediation was also recommended and it was suitable for them to occur concurrently.9

[11] On 1 July 2015, WorkLogic emailed the preliminary assessments of Ms Hristovska’s and Ms Entwistle’s complaints. WorkLogic recommended, and Mr Wilkin agreed, that the complaints of Ms Hristovska and Ms Entwistle required further and more formal investigation. 10

[12] On 19 August 2015, WorkLogic emailed an amended draft of the report of the investigation into allegations made by Ms Hristovska, against Mr Carroll, to Mr Wilkin. 11 Later that same day, Mr Wilkin rang WorkLogic to request that the report into Ms Hristovska’s allegations be finalised.12

[13] On 21 August 2015, Mr Wilkin received a draft report of the investigation findings of allegations 1 – 15 of Ms Enwtistle’s complaint against Mr Carroll. 13 On 24 August 2015, Mr Wilkin received a copy of WorkLogic’s completed draft report relating to Ms Entwistle’s complaint against Mr Carroll.14

[14] On 25 August 2015, WorkLogic emailed the final report of the investigation into allegations made by Ms Hristovska to Mr Wilkin. 15 It is noted in that report, that Mr Carroll, during the investigation, had provided lengthy written responses to the allegations.16 It is also noted that after each interview, witnesses were provided with a transcript of the recorded interview and given an opportunity to provide any additional comments.17

[15] On 26 August 2015, Mr Wilkin and Ms Hickson met with Mr Carroll and his support person Ms Sally Stonier. 18 Mr Wilkin advised Mr Carroll of the outcome of the WorkLogic investigations into the complaints made by Ms Hristovska and Ms Entwistle.19 Mr Wilkin further advised Mr Carroll of Karingal’s decision to terminate his employment and provided him with a letter dated 26 August 2015, headed ‘termination of employment’.20 The letter referred to the breaches of Karingal’s Code of Conduct, Work, Health and Safety Policy and Bullying and Harassment Policy as the reason for termination of employment.21

[16] On 27 August 2015, WorkLogic emailed the final report of the investigation into allegations made by Ms Entwistle against Mr Carroll. 22 It is noted in that report, that Mr Carroll, during the investigation, had provided lengthy written responses to the allegations.23 It is also noted that after each interview, witnesses were provided with a transcript of the recorded interview and given an opportunity to provide any additional comments.24

Protection from Unfair Dismissal

[17] An order for reinstatement or compensation may only be issued where I am satisfied Mr Carroll was protected from unfair dismissal at the time of the dismissal.

[18] Section 382 sets out the circumstances that must exist for Mr Carroll to be protected from unfair dismissal:

[19] There is no dispute, and I am satisfied, Mr Carroll has completed the minimum employment period, and the sum of his annual rate of earnings is less than the high income threshold. Consequently, I am satisfied Mr Carroll was protected from unfair dismissal.

[20] I will now consider if the dismissal of Mr Carroll by Karingal was unfair within the meaning of the Act.

Was the dismissal unfair?

[21] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[22] I am satisfied that Karingal dismissed Mr Carroll from his employment on 26 August 2015 within the meaning of s.386(1)(a) of the Act.

[23] At the time of Mr Carroll’s dismissal, Karingal had 1,800 employees. 25 Therefore, I am satisfied that the Small Business Fair Dismissal Code does not apply to Mr Carroll’s dismissal.

[24] Karingal has not submitted that Mr Carroll’s dismissal was a case of genuine redundancy. Regardless, I am satisfied that Mr Carroll’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.

Harsh, unjust or unreasonable

[25] Having been satisfied of each of the matters prescribed by s.385(a), (c)-(d) of the Act, I now must consider whether Mr Carroll’s dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:

[26] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd (1995) 185 CLR 410. McHugh and Gummow JJ explained as follows:

[27] I will now consider each of the matters set out in s.387 of the Act. 27

s.387(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] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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 When considering whether a reason is a valid reason for the purpose of s.387(a) of the Act, the reason must be “sound, defensible or well founded”.29 A reason which is “capricious, fanciful, spiteful or prejudiced” cannot be a valid reason.30

[29] The Commission will not stand in the shoes of the employer and determine what it would do if it was in the position of the employer. 31 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).32

[30] Karingal submit the following conduct issues justify Mr Carroll’s dismissal:

Breaching Karingal’s Code of Conduct, its Work, Health and Safety Policy and its Bullying and Harassment Policy.  34

[31] Mr Carroll submits that Karingal failed to put evidence before the Commission that established he breached Karingal’s Code of Conduct, its Work Health and Safety Policy and its Bullying and Harassment Policy and further, that he did not engage in bullying of staff under his management. 35

Was there a valid reason for Mr Carroll’s dismissal which related to his conduct?

[32] In cases relating to alleged conduct, the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. Further, it is not enough for the employer to establish that it had a reasonable belief that the termination was for a valid reason; the Commission must make a finding as to whether the conduct occurred based on the evidence before it. 36 The reason is valid where the Commission finds that the conduct occurred and justified termination of employment. The reason might not be a valid reason where the conduct did not occur or where it did occur but did not justify termination. 37

Karingal’s Code of Conduct,

[33] Karingal’s Code of Conduct is a document which establishes standards of behaviour for Karingal employees. In particular there is an obligation on managers to ensure that they maintain a positive environment free of bullying, harassment and other forms of discrimination. 38 It establishes that if the Code of Conduct is breached it will be addressed either informally, through counselling methods, or formally.39 Mr Carroll accepted he was aware of his obligations under the Code of Conduct.40

Karingal’s Work Health and Safety Policy

[34] Karingal’s Work Health and Safety Policy sets out the responsibilities of Karingal to its employees. Karingal must ensure the health and safety of all Karingal workers whilst at work and it must provide and maintain a work environment without risk to health and safety. 41 Mr Carroll accepted that these are legitimate and reasonable responsibilities of Karingal.42

Karingal’s Bullying and Harassment Policy

[35] Karingal’s Bullying and Harassment Policy provides that Karingal is committed to providing an environment free from workplace bullying and harassment. 43 Karingal considers that all forms of bullying and harassment are inappropriate and unacceptable.44 Mr Carroll agreed that this policy applied at the workplace and to him.45

Serious and sustained bullying

[36] As established below, there is little dispute between the parties that particular events and conversations, relied upon by Karingal as examples of misconduct, occurred. The dispute arises in relation to Karingal characterising those events and conversations as examples of serious and sustained bullying.

Allegations of Andrea Entwistle

Meeting of 3 November 2014

[37] Ms Entwistle gave evidence of an email exchange between herself and Mr Carroll, in which Mr Carroll had replied to an email Ms Entwistle had sent to the team, ‘why did you send this?’. 46 Ms Entwistle’s evidence was that she felt that Mr Carroll’s email had a very threatening tone, that in response to that email she sent him a reply asking if he wished to ‘have a chat in private’.47 Ms Entwistle’s evidence is that Mr Carroll then came to her desk and asked to meet with him and speak privately, that she followed him to a room where he soon started to raise his voice, that his tone was angry, aggressive and condescending. That Mr Carroll made her feel very uncomfortable and scared and that as she wanted to end the conversation she apologised to him, even though she did not think she had anything to apologise for.48

[38] Mr Carroll gave evidence in which he confirmed he had a chat in private with Ms Entwistle following the evidenced email exchange. 49 However, Mr Carroll’s evidence was that he did not start to raise his voice during the meeting.50 Mr Carroll also denied that his tone had been angry, aggressive and condescending.51 Mr Carroll’s evidence confirmed that he asked Ms Entwistle why she had sent the email to the team and not directly to him, however he denied that he said he could not believe that she sent the email, that she would not do that again and that in doing so she was causing him trouble.52 Mr Carroll’s evidence was that he did not believe that his conduct had the effect Ms Entwistle described.53

‘Checklish’

[39] Ms Entwistle gave evidence that from the time Mr Carroll started managing her team, he made comments about her English expression and corrected her written work. 54 Ms Entwistle said that she was always happy to learn and was open to suggestions as to how she could improve.55 Ms Entwistle’s evidence was that Mr Carroll started to refer to her expression as ‘Checklish’, a reference to Ms Entwistle being from the Czech Republic, that he would often sit with her and go through her work, making snide comments and jokes as he did so.56 Ms Entwistle said that she began to feel uncomfortable about the way Mr Carroll focussed on her expression, that it began to offend her, that this was the first time in the seven years she had been employed at Karingal that anyone had concerns about her expression.57 Ms Entwistle’s evidence was that the way Mr Carroll dealt with his concerns about her expression made her feel inferior.58

[40] Ms Entwistle’s evidence was that Mr Carroll’s belittling comments about her English continued throughout her employment. 59 As an example Ms Entwistle relied upon an email she had received from Mr Carroll, on 8 December 2014, that simply said ‘Wot’s a debot?’. This is referencing the typo in the subject line that had been forwarded by Ms Entwistle from an earlier email she had received.60 With the background of Mr Carroll’s focus on her English expression, Ms Entwistle found this offensive and another example of Mr Carroll belittling her.61

[41] Mr Carroll submits that his comments to Ms Entwistle about the adequacy of her English expression were either in a joking or professional manner. 62 Mr Carroll further submits that his use of the term ‘Checklish’ stemmed from Ms Entwistle introduction of the term as one coined by her husband, that the term was rarely used and that Ms Entwistle never advised him that she was offended by it prior to the lodging of the formal complaint.63 Mr Carroll submits that he raised the adequacy of Ms Entwistle’s English expression in her performance reviews as an opportunity for her to further improve and not as a criticism.64 Mr Carroll submits that he was unaware that Ms Entwistle found the prospect of him training her as very intimidating, that she had not indicated this to him in any way he did not accept that this had made her feel inferior.65

[42] Mr Carroll’s evidence was that he sometimes checked Ms Entwistle’s emails for English expression. 66 Mr Carroll confirmed that he sent the email on the 8 December 2014, referring to ‘debot’, but that he intended it in a jocular manner.67

[43] Mr Carroll acknowledges that sometimes Ms Entwistle would sit behind him as they worked on a document together on his computer.  68 However, Mr Carroll submits that he never made her sit with him to conduct some kind of English tutorial.69 Mr Carroll submits that it was very common for him and members of his team to sit next to each other in the office and draft wording for a document or discuss issues.70 Mr Carroll submits that supervisory checking of important external facing documents or correspondence is a normal management function that he performed in a reasonable manner.71

Micromanagement

[44] Ms Entwistle’s evidence was that Mr Carroll started to introduce a number of workload management tools in or about April 2014. 72 Ms Entwistle’s evidence was that Mr Carroll introduced three different spread sheets that she and the other members of their team had to complete.73 Ms Entwistle’s evidence was that her one on one time with Mr Carroll became increasingly unproductive as it focused on the spread sheets, reporting tools and whether the detail in them met Mr Carroll’s expectations, rather than discussing the substance of work undertaken.74 Ms Entwistle’s evidence was that of the 22.5 hours she works a week she spent around a third of that time completing these spread sheets.75

[45] Ms Entwistle’s evidence was that Mr Carroll also started to limit her contact with external stakeholders. 76 That Mr Carroll had told her that he did not want her to speak with internal or external stakeholders without his permission.77 Ms Entwistle’s evidence was that she found this to be constant micro management of her every task and interaction with others in the organisation and that it seriously started to affect her confidence.78

[46] Mr Carroll’s evidence was that it was probably four or five spread sheets that he required members of his team to complete in relation to what their work was at a particular time. 79 Mr Carroll’s evidence was that one of the spread sheets was designed to show what their workloads were, that the others were to manage governance functions they dealt with, and that the work plan was a summary that each person had to keep up to date as it reflected the work in the other documents.80

Allegations of Snezana Hristovska

Micromanagement

[47] Ms Hristovska’s evidence was that Mr Carroll requested that she create pivot charts from the Risk Register and that this was a new task for her. 81 Mr Hristovska’s evidence was that she experienced difficulties with the pivot charts document crashing, that when she tried to tell Mr Carroll of this difficulty, he did not seem to understand or want to understand how stressful this was becoming for her.82 Ms Hristovska evidence was that the constant crashing became increasingly frustrating and distressing because she was unable to do her work.83 As an example Ms Hristovska referred to an email exchange between herself and Mr Carroll, on the 29 January 2015. Ms Hristovska sent an email to Mr Carroll explaining that the file had crashed the day before at 2:30pm and that when it was recovered it was blank, that this wasn’t the first time this had happened and that this meant she had to redo the work she had done since 11:30am despite saving the file regularly.84 Mr Carroll’s response email said that he was sorry to hear it was a pain for her and that if it happens again to ensure that she call him before doing all that work because there are often ways to recover crashed files.85

[48] Ms Hristovska’s evidence was that in or about February 2016, after her pivot chart document continued to crash numerous times, she told Mr Carroll that she was going to contact the Help Desk to see if there was something that could be done to stop this from happening. 86 That in response to this Mr Carroll said that there was nothing wrong with the document, that the problem was the way she was using it and that she shouldn’t contact the Help Desk because he wasn’t experiencing any problems working with the document.87 Ms Hristovska’s evidence was that she found Mr Carroll’s refusal to allow her to contact the Help Desk to be unreasonable and another example of his attempts to control her work.88

[49] Mr Carroll’s evidence was that he was asked by Ms Hristovska if she could contact the Help Desk, that he did not say that she could not contact the Help Desk, instead that it wasn’t a matter of should not have, he thought that there were other things that they could have done. 89

Aggressive, controlling and bullying behaviour

[50] Ms Hristovska’s evidence was that on the 8 April 2015 she had a meeting with Mr Carroll and Ms Hughes. 90 Her evidence was that at that meeting she asked whether the compliance register would be reviewed to avoid unnecessary duplication and that Mr Carroll seemed to take offence at this and said, in a dismissive and aggressive tone, words to the effect ‘so you think there were lots of inconsistencies in the compliance register do you?’.91

[51] Ms Hristovska’s evidence was that on or about 9 April 2015, she was called into a meeting Mr Carroll was having with Ms Hughes about the compliance register. 92 Her evidence was that she was asked to give her view on the issue, which she did and that it happened to agree with that of Ms Hughes, that Mr Carroll became very red in the face, aggressive and said that she had a close relationship with Ms Hughes and that this was unhealthy.93 Ms Hristovska’s evidence was that Mr Carroll was very aggressive in the meeting and that made it very uncomfortable for her to talk.94

[52] Ms Hristovska’s evidence was that another example of Mr Carroll’s controlling management style was in relation to her interaction with internal stakeholders. 95 Her evidence was that she was used to going to meetings with internal stakeholders on her own, but that Mr Carroll had told her that he wanted to start coming to the meetings with her.96 Ms Hristovska’s evidence was that Mr Carroll’s presence stopped her from getting the information that she needed.97

[53] Mr Carroll’s evidence was that at the meeting on the 8 April 2015 he may have said words to the effect Ms Hristovska described. 98 His evidence was that he had a meeting the following day, 9 April 2015, with Ms Hughes and that when Ms Hristovska was asked to give her view on an issue, she agreed with Ms Hughes view.99 Mr Carroll agreed that he had said that Ms Hristovska had a close relationship with Ms Hughes and that this was unhealthy.100 When Mr Carroll was asked whether he agreed with Ms Hristovska’s characterisation of his behaviour in that meeting as very aggressive, he said that he was ‘certainly annoyed’.101

Supporting evidence of Sameer Chaudhari and Clare Neild

[54] Mr Chaudhari was a direct report of Mr Carroll. Mr Chaudhari’s evidence was that in 2014 their team had taken on too much work, that they were unable to deliver on all the audits that they had agreed to do and that this caused him some stress. 102 His evidence was that in or around June 2014 he raised these concerns with Mr Carroll, who suggested they meet in his office to discuss Mr Chaudhari’s concerns.103 Mr Chaudhari’s evidence was that at this meeting they discussed his estimates of how long some of the audits would take to complete and that based on his estimates they would not be able to complete all of them.104 His evidence was that Mr Carroll’s solution was to just reduce the estimate of the time to complete some of the audits.105 Mr Chaudhari’s evidence was that as he is the person who is required to do the work associated with the audits, he is in a much better position to know how much work is involved.106 That he was unhappy with how Mr Carroll was dealing with his concerns around workload in this meeting, that he made this clear and that it was his impression that Mr Carroll had no interest in listening to his viewpoint.107

[55] Mr Chaudhari’s evidence was that in the first quarter of 2015 he had ‘run-ins’ with Mr Carroll over two separate audits. 108 His evidence was that at a preliminary meeting with internal stakeholders regarding the first audit of 2015, he questioned whether the intended scope of the audit was very large and would take a long time to complete.109 He gave evidence that he had suggested that they limit the scope, however that Mr Carroll had overruled him in the meeting, saying that two months was sufficient time to undertake the audit.110 Mr Chaudhari’s evidence was that this was a very large audit, involving significant amounts of travel, which resulted in him having a very heavy workload.111 His evidence was that it was a very stressful period for him, that although he managed to deliver the report on time, he was not satisfied with the work he did and felt compromised on quality.112

[56] Mr Chaudhari’s evidence was that in planning for the second audit in 2015, the same thing in effect happened again. 113 That, at or around the end of March or beginning of April 2015, he initiated a meeting with Mr Carroll to raise his concerns.114 Mr Chaudhari’s evidence was that, whilst they were still in discussions, Mr Carroll rose from his chair, said that the meeting was over, walked over to the door and opened it, implying that Mr Chaudhari should leave, which he did.115 Mr Chaudhari’s evidence was that he felt very intimidated by Mr Carroll’s behaviour.116

[57] Mr Carroll’s evidence was that he was unaware that Mr Chaudhari felt intimidated by his conduct towards him. 117 Mr Carroll’s evidence was that he did not remember Mr Chaudhari having concerns about his management regarding the planning for the audits in 2015.118 His evidence was that he recalls a meeting, of which he couldn’t recall the particular detail, that Mr Chaudhari was pushing back on a point and not being constructive and that he had said ‘Okay. This meeting has to stop’, that it was better he ended the discussion that way.119 Mr Carroll’s evidence was that the time frames for Mr Chaudhari were unreasonable and that they were time frames imposed by Ms Hughes, that he agrees that many of the time frames on Mr Chaudhari’s audits were not appropriate to do them properly.120 Mr Carroll said that he impressed upon Mr Chaudhari that there was a time limit set by the business and that they had to work within that, that Mr Chaudhari wanted unlimited time to do audits, which they didn’t have.121

[58] Ms Neild was also a direct report of Mr Carroll, she was a member of the Audit and Risk Team. Ms Neild was an existing Karingal employee prior to the establishment of the Audit and Risk team, after Mr Carroll was recruited. 122 Ms Neild’s evidence was that when Mr Carroll commenced at Karingal he said all the right things, that he seemed very personable, however that after the first few weeks, things started to get progressively worse.123 That Mr Carroll began to focus on the mechanics of what they were doing, Ms Neild acknowledged that this is appropriate for a manager, however that the level of detail he went into and the way he went about it was not productive and began to impact significantly on the wellbeing of the team, including herself.124 Ms Neild’s evidence was that she found Mr Carroll’s increasing micromanagement of her work to be difficult to understand and deal with.125 Ms Neild’s evidence was that the way Mr Carroll required the team to use spread sheets, to measure and manage their work, was onerous with lots of detail and double entry.126 Her evidence was that she felt increasingly disempowered and that over time this became increasingly upsetting.127

[59] Ms Neild’s evidence was that part of her role is to work with stakeholders throughout the business. 128 Her evidence was that on several occasions Mr Carroll questioned her interactions that she had with others, that sometimes he would ask why she had met or had planned to meet people.129 Ms Neild’s evidence was that this made her feel frustrated as she was simply undertaking her role.130 Ms Neild’s evidence was that she raised her concerns directly with Mr Carroll on multiple occasions and that he seemed to hear the feedback that she provided but that his behaviour did not change.131

[60] Karingal submits that regardless of whether it was Mr Carroll’s intention to bully people, it is the effect of his conduct upon those people that it is the issue in this matter. 132 Karingal submits that the emails Mr Carroll relies on to demonstrate a happy working relationship with his direct supports, are not inconsistent with the proposition that the behaviour described as serious and sustained bullying by Mr Carroll has been going on for some time until Ms Entwistle and Ms Hristovska reach a point in May 2015, where they can no longer bear it and make complaints.133

[61] Karingal rejects the proposition that it was incumbent on Ms Entwistle and Ms Hristovska to raise their issues directly with Mr Carroll. Karingal submits that in a case where the direct manager is the person who is allegedly bullying, that it is unsurprising that the employee in question would take the complaint to the next level of management. 134

[62] I accept Mr Carroll as an honest, well-intentioned witness who gave his evidence in a forthright manner. I also accept that it was his belief that he was doing his best by his employer and his staff. Whilst Mr Carroll may be well-intentioned he appears unaware of the effects his behaviour had on the employees who reported to him. I am satisfied that the cumulative effect of his conduct and behaviours was one of significant and systematic micromanaging. In particular, Ms Hristovska and Ms Entwistle gave compelling evidence as to how Mr Carroll’s management of them caused them great distress and anxiety. Accordingly, I am satisfied that Mr Carroll’s conduct was in breach of Karingal’s Code of Conduct, its Work, Health and Safety Policy and its Bullying and Harassment Policy. I find that the conduct of Mr Carroll, as outlined above, constitutes a valid reason for Mr Carroll’s dismissal.

Notification of the Valid Reason – s.387(b)

[63] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was notified of the reason. 135 Procedural fairness requires that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment.136 The notification of the valid reason must be in explicit, plain and clear terms.137

[64] Karingal submits that the reason for Mr Carroll’s dismissal was put to him during the course of the investigation by WorkLogic. 138 Mr Wilkin’s evidence was that he and Ms Hickson met with Mr Carroll and his support person on 26 August 2015.139 His evidence was that in this meeting he advised Mr Carroll of the outcome of the investigations into the allegations of Ms Hristovska and Ms Entwistle and that he also advised Mr Carroll of Karingal’s decision to terminate his employment.140

[65] Ms Hickson’s evidence included file notes of the meeting with Mr Carroll on 26 August 2015. 141 Ms Hickson’s file notes of the meeting detail that Mr Wilkin explained that based on the extensive investigation in regards to Ms Hristovska’s and Ms Entwistle’s allegations against Mr Carroll the following outcomes were found, breaches of Karingal’s:

That there had been full breaches and part breaches for the majority of allegations and only a couple of the allegations were not proven. 143 Ms Hickson’s file notes detail that Mr Wilkin stated that he was there to advise Mr Carroll that he was no longer going to be employed by Karingal as it was decided to terminate his services.144

[66] Mr Carroll submits that he was not notified of the reason for his dismissal, he submits that the reasons for his dismissal are not simply the allegations put by his direct reports.145 Mr Carroll submits that the reasons for his dismissal were not provided to him until 18 December. 146 Mr Carroll submits that he refuted all the allegations during the WorkLogic investigation, that during the meeting, with Mr Wilkin, on 26 August 2015, in which he was dismissed he had asked “Why am I being dismissed? What is the reason? I’ve refuted these allegations, what are the reasons for my dismissal?”.147 Mr Carroll submits that he was only provided with those reasons in Mr Wilkin’s witness statement.148

[67] I am satisfied that Mr Carroll was notified of a valid reason for his termination before the decision was taken to terminate his employment.

Opportunity to Respond – s.387(c)

[68] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. 149 An employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made.150 This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.151 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of this section.152

[69] Karingal submits that during the course of the WorkLogic investigation Mr Carroll responded to the full set of allegations put by his direct reports. 153 Karingal relies on the decisions Gleeson v Aurora Energy [2010] FWA 2956 and Palmer v Commonwealth (Austrac) [2007] AIRFB 265, and says they are examples of where an investigation fulfilled the obligation in s.387(c).154

[70] Mr Carroll submits that for the same reason he was not notified of a valid reason for his dismissal, he was not provided an opportunity to respond to the reason. 155 Mr Carroll submits that new allegations were contained in the witness statements provided by Karingal in this matter that were not put to him during the investigation by WorkLogic.156

[71] Mr Wilkin’s evidence was that on 24 August 2015, he received a copy of WorkLogic’s completed draft report relating to Ms Entwistle’s complaint against Mr Carroll. 157 Mr Wilkin’s evidence was that he responded to WorkLogic confirming that he was happy to accept the investigation as presented.158 His evidence was that same day he worked through the findings of the report and arranged a meeting with the Chief Operating Officer, Mr Howard, the new CEO, Mr McKinstry, the departing CEO, Mr Starkey and that Ms Hickson was also in attendance.159 Mr Wilkin’s evidence was that on the basis of the findings his recommendation was that Mr Carroll’s employment with Karingal be terminated.160 His evidence was that this recommendation was accepted by the other attendees at the meeting and that as a group they decided that Mr Carroll’s employment should be terminated.161

[72] Mr Wilkin’s evidence was that on the basis of the WorkLogic report he was satisfied that Mr Carroll had been provided with a fair opportunity to respond to the allegations made against him, that he was satisfied that Mr Carroll had been afforded procedural fairness through the process and that the decision to terminate his employment was justified. 162

[73] The 26 August 2015 letter and the exhaustive steps taken by Karingal to allow Mr Carroll an opportunity to respond to the allegations throughout the WorkLogic investigation, reveal on the whole a consistent set of related events, about which Mr Carroll would have been fully aware. 163 Indeed, he responded in detail to all of the allegations, albeit denying many of the allegations themselves. It is important not to lose sight of the fact that Mr Carroll provided lengthy written responses to the allegations.164 Given these facts, it is difficult to conclude that Mr Carroll was denied the opportunity to respond to the allegations made against him during the course of the WorkLogic investigation. On this basis, I find that Mr Carroll was given an opportunity to respond to the reason for the dismissal.

Unreasonable Refusal of a Support Person – s.387(d)

[74] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. 165 With respect to this consideration, the Explanatory Memorandum states:

[75] Mr Carroll had a support person with him at the 26 August 2015 meeting where his employment was terminated. 167

Warnings regarding Unsatisfactory Performance – s.387(e)

[76] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal. 168 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than to their conduct.169 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.170

[77] Karingal submit that the dismissal did not relate to unsatisfactory performance, that it is a question of Mr Carroll’s conduct. 171 Mr Carroll notes that Karingal is not claiming that his dismissal was justified due to unsatisfactory performance.172

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f) – (g)

[78] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. 173 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.174

[79] Karingal submits that it does not seek to say that it lacks human resources expertise or that it is a small business. 175

Other Relevant Matters – s.387(h)

[80] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any other matters that the Commission considers relevant. 176

[81] Karingal submits that there are no other relevant matters and that those put forward by Mr Carroll are irrelevant considerations that do not have any bearing on the consideration of whether this is an unfair dismissal. 177

[82] Mr Carroll submits that the complaints made against him are politically motivated and contrived, that it is clear that Ms Hughes conspired with his team and Mr Wilkin for months in order to raise false complaints designed to have him removed from his position. 178

[83] Any suggestion by him of a conspiracy between Ms Hughes, Mr Wilkin, the board and/or Work logic is without foundation.

Was Mr Carroll’s dismissal harsh, unjust or unreasonable?

[84] In the circumstances of this case, having taken into account the considerations of s.387(a)-(h) and having taken into account the matters set out above, I am not satisfied that Mr Carroll’s dismissal was harsh, unjust or unreasonable pursuant to s.385(b) of the Act. It follows from those findings that I dismiss the application.

[85] An order to that effect will be published separately to this decision.

al - Cirkovic C

COMMISSIONER

Appearances:

P Carroll, for Applicant;

J Tracey of Counsel, instructed by Lander & Rogers, for Respondent.

Hearing details:

2016

18-20 January, 9 & 19 February and 2 May.

Final written submissions:

Applicant’s Final Submission, 18 March 2016

Respondents Final Submission, 8 April 2016

Applicant’s Final Submission in Reply, 22 April 2016

 1   Exhibit R9, R11

 2   Exhibit R5, attachment AE-22

 3   Exhibit R9 para 12

 4   Exhibit R9 para 13

 5   Exhibit R9 paras 15 & 18, R11

 6   Exhibit R9 para 17 & 20

 7   Exhibit R9 para 21-22

 8   Exhibit R9 para 27

 9   Exhibit R9 para 28

 10   Exhibit R9 para 30, 32

 11   Exhibit R9 para 42

 12   Exhibit R9 para 42

 13   Exhibit R9, para 44

 14   Exhibit R9, para 45

 15   Exhibit R9, attachment MW-14

 16   Exhibit R9, attachment MW-14

 17   Exhibit R9, attachment MW-14

 18   Exhibit R9 para 53

 19   Exhibit R9 para 53

 20   Exhibit R9 para 53, Exhibit R1

 21   Exhibit A1

 22   Exhibit R9 para 56, attachment MW-15

 23   Exhibit R9, attachment MW-15

 24   Exhibit R9, attachment MW-15

 25   Employer Response to Unfair Dismissal Application, filed 30 September 2015, p.3

 26   Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465 (McHugh and Gummow JJ)

 27   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]

 28   Fair Work Act 2009 (Cth) s. 387(a)

 29   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

 30   Ibid

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

 32   Ibid

 33   PN5659

 34   Respondent’s Closing Submissions, filed 8 April 2016, p.2

 35   PN5428

 36   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213

 37   Edwards v Giudice (1999) 94 FCR 561, 565

 38   PN757

 39   PN763

 40   PN758

 41   PN803

 42   PN804

 43   PN781

 44   PN781

 45   PN781-784

 46   Exhibit R5, para 29, attachment AE-14

 47   Ibid, para 29, attachment AE-15

 48   Ibid, para 30

 49   PN326

 50   PN327

 51   PN330

 52   PN329-330

 53   PN332

 54   Exhibit R5, para 8

 55   Ibid, para 8

 56   Ibid, para 9

 57   Ibid, para 9

 58   Ibid, para 9

 59   Ibid, para 17

 60   Ibid, para 17, attachment AE-6

 61   Ibid, para 17

 62   PN5433

 63   PN5434

 64   PN5435

 65   PN227-228

 66   PN254-257

 67   PN270 & 273

 68   PN5437

 69   Ibid

 70   Ibid

 71   PN5441

 72   Exhibit R5, para 10

 73   Ibid, para 11

 74   Ibid, para 11

 75   Ibid, para 12

 76   Ibid, para 20

 77   Ibid, para 20

 78   Ibid, para 21

 79   PN243

 80   PN244

 81   Exhibit R4, para 14

 82   Ibid

 83   Exhibit R4, para 15

 84   Exhibit R4, SH-2

 85   Ibid

 86   Exhibit R4, para 16

 87   Ibid

 88   Ibid

 89   PN435-437

 90   Exhibit R4, para 20

 91   Ibid

 92   Ibid, para 21

 93   Ibid

 94   Ibid

 95   Ibid, para 26

 96   Ibid

 97   Ibid

 98   PN447

 99   PN449

 100   PN450

 101   PN453

 102   Exhibit R6, para 9

 103   Exhibit R6, para 10

 104   Exhibit R6, para 11

 105   Exhibit R6, para 11

 106   Exhibit R6, para 13

 107   Exhibit R6, para 13

 108   Exhibit R6, para 17

 109   Exhibit R6, para 18

 110   Exhibit R6, para 18

 111   Exhibit R6, para 18

 112   Exhibit R6, para 18

 113   Exhibit R6, para 19

 114   Exhibit R6, para 20

 115   Exhibit R6, para 20

 116   Exhibit R6, para 20

 117   PN612

 118   PN615

 119   PN616-619

 120   PN623

 121   PN623

 122   Exhibit R17, paras 3-4

 123   Exhibit R17, paras 5-6

 124   Exhibit R17, para 6

 125   Exhibit R17, para 7

 126   Exhibit R17, para 8

 127   Exhibit R17, para 8

 128   Exhibit R17, para 12

 129   Exhibit R17, para 12

 130   Exhibit R17, para 12

 131   Exhibit R17, para 19

 132   PN5679

 133   PN5684

 134   PN5692

 135   Fair Work Act 2009 (Cth) s. 387(b)

 136   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151; Gooch v Proware Pty Ltd T/A TSM (The Service Manager) [2012] FWA 10626

 137   Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730,

 138   PN5729-5728

 139   Exhibit R9, para 53

 140   Exhibit R9, para 53

 141   Exhibit R11, EH-23

 142   Exhibit R11, EH-23

 143   Exhibit R 11, EH-23

 144   Exhibit R 11, EH-23

145 PN5535

 146   Ibid

 147   PN5538

 148   Ibid

 149   Fair Work Act 2009 (Cth) s. 387(c)

 150   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151

 151   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ)

 152   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ)

 153   PN5759

 154   Respondent’s closing submissions, para 30 & PN5729

 155   PN5549

 156   PN5552

 157   Exhibit R9, para 45

 158   Exhibit R9, para 45

 159   Exhibit R9, para 46

 160   Exhibit R9, para 48

 161   Exhibit R9, para 49

 162   Exhibit R9, para 52

 163   Exhibit R1

 164   Exhibit R9, attachment MW-14

 165   Fair Work Act 2009 (Cth) s.387(d)

 166   Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542]

 167   Exhibit R9 para 53

 168   Fair Work Act 2009 (Cth) s.387(e)

 169   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237

 170   Johnston v Woodpile Investments T/A Hog’s Breath Caf´┐Ż - Mindarie [2012] FWA 2, [58]

 171   PN5905

 172   PN5560

 173   Fair Work Act 2009 (Cth) s.387(f)

 174   Fair Work Act 2009 (Cth) s.387(g)

 175   PN5905

 176   Fair Work Act 2009 (Cth) s.387(h)

 177   PN5905

 178   PN5560

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