DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Quentin Cook
v
Australian Postal Corporation t/a Australia Post
(U2015/16961)

Unfair dismissal - summary dismissal - serious misconduct - primary factual findings proven upon requisite standard - valid reason for dismissal - nature of proven misconduct not treated as basis for summary dismissal - dismissal unjust and unreasonable - limited compensation provided.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 18 December 2015. The application was made by Quentin Redvers Cook (the applicant) and the respondent employer is Australia Postal Corporation t/a Australia Post (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 17 December 2015. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 14 April 2016. The Hearing involved the taking of evidence, with the final written submissions made in the matter on 12 May 2016.

[4] At the Hearing, the Commission granted permission under s. 596 of the Act for the Parties to be represented by lawyers or paid agents. The applicant was represented by Ms M Wilson, who advised that she was a legal practitioner who appeared in an unpaid capacity as a friend of the applicant. Ms Wilson called the applicant as the only witnesses who provided evidence in support of the unfair dismissal claim.

[5] The employer was represented by Mr J McLeod, barrister, instructed by Landers & Rogers lawyers. Mr McLeod called three witnesses who provided evidence on behalf of the employer. Mr McLeod also introduced two witness statements which were admitted into evidence without the need for the respective individuals to be cross-examined.

Background

[6] The applicant had worked for the employer for almost 38 years. The applicant was employed as a Postal Delivery Officer (PDO). The applicant worked at and from the employer’s Delivery Facility located in the Sydney suburb of Seven Hills.

[7] The primary work for which the applicant was engaged involved the day to day delivery of domestic mail. The employer is the Australian national postal service which understandably, is a business operation of considerable size.

[8] The applicant’s employment appeared to have involved a long history of activities associated with the representation of his co-workers in respect to workplace related issues. The applicant undertook the admirable role of what may be described and understood to be a workplace representative, whereby he provided help to his co-workers by acting on their behalf. This workplace representative role of the applicant did not appear to involve any connection with an organisation of employees registered under the Act.

[9] In May of 2014, the employer became aware of what it understood to be the expansion of the applicant’s workplace representative role to include payment for service arrangements. It appeared to the employer that a regular payment for service arrangement had been established between some of the applicant’s co-workers and the applicant, or a company or organisation controlled and operated by the applicant. At the time the employer referred to these arrangements as the “Cook Club”.

[10] On 10 June 2014, the employer’s Area Manager with responsibility for the Seven Hills Delivery Facility, Mr Bold, met with the applicant and discussed the “Cook Club”. Mr Bold warned the applicant about his representative activities, which appeared to have extended to the provision of industrial and legal services on a paid basis, and which Mr Bold said amounted to a conflict of interest. Mr Bold warned the applicant that his activities in conducting paid representation services breached the employer’s relevant policy, and jeopardised the applicant’s employment.

[11] The applicant rejected that his representative activities amounted to a conflict of interest, and he also challenged that the employer could refuse to allow employees to direct that payroll deductions be made to the “Cook Club”. Although the employer had initially referred to the “Cook Club” to describe the paid representative activities of the applicant, it subsequently became aware that on 28 April 2014, lawyers acting on behalf of the applicant had registered an Australian Company in the name, E.L.I.S.A PTY LTD [ABN 38169253945], of which the applicant is the sole Director and shareholder.

[12] E.L.I.S.A PTY LTD is the registered Company that the applicant operates, and which receives money from, inter alia, co-workers of the applicant who authorise payroll deductions to be directed to a bank account referred to as ELISA PTY LTD or Elisa Pty Ltd. The applicant operates the business activities conducted on behalf of E.L.I.S.A PTY LTD under the name Employee Legal Industrial Services, Australia (ELISA) which purports to offer the capacity for an individual to join that entity.

[13] On 25 May 2015, Mr Bold participated on behalf of the employer, in telephone conciliation proceedings conducted by the Commission in respect to an unfair dismissal claim taken by a former employee. The applicant also participated in the telephone conciliation as the representative of the former employee.

[14] On 22 June 2015, Mr Bold wrote to the applicant providing notification that the applicant was required to attend a warning counselling interview to discuss what was alleged to be unacceptable behaviour. The unacceptable behaviour arose from the applicant’s representative activities in proceedings before the Commission on 25 May 2015. The communication with the applicant advised, inter alia, of the employer’s concern that the applicant had been conducting a paid advocacy service and that this conduct breached the employer’s code of ethics as it constituted a conflict of interest.

[15] The employer conducted a warning counselling interview with the applicant on 13 July 2015, and it subsequently issued a warning letter to the applicant dated 14 July 2015. The warning letter to the applicant confirmed that the employer considered that the applicant’s activities as a paid employee representative represented a conflict of interest which breached the employer’s code of ethics. The warning letter of 14 July 2015 advised the applicant that any further breaches of the employer’s code of ethics could result in his dismissal from employment.

[16] During August and September 2015, a number of the employer’s managers who supervised the work of the applicant, expressed concern about certain aspects of the applicant’s workplace conduct. As a result of these concerns, the employer undertook a formal disciplinary inquiry into seven identified allegations which were described as serious breaches of the employer’s code of ethics. By way of letter dated 15 October 2015, the applicant was notified of the commencement of the disciplinary inquiry. The applicant was provided with details of seven allegations which were said to involve unacceptable behaviour or other conduct which breached the employer’s code of ethics and for which, if proven, the applicant would be subject to disciplinary action.

[17] The employer’s disciplinary inquiry into the alleged conduct of the applicant was conducted by one of its managers, Mr Shine. The inquiry conducted by Mr Shine included interviews with various managers and team leaders who had had direct involvement with the applicant in the workplace. On 19 October 2015, Mr Shine also conducted an interview with the applicant.

[18] On 7 December 2015, Mr Shine concluded his disciplinary inquiry and issued a report. The report provided by Mr Shine examined the seven allegations in detail and found all seven allegations to have been proven. Mr Shine then considered that the applicant’s conduct constituted serious and wilful misconduct. Mr Shine further considered the question of appropriate penalty, and he recommended the dismissal of the applicant.

[19] The recommendation made by Mr Shine that the applicant be dismissed was then referred to another of the employer’s managers who was given the delegated authority in respect to any decision regarding dismissal. In this instance the delegated manager was Mr Elkhatib. The applicant was advised of the identity of the delegated manager, and he was offered an opportunity to make any further representations on the question of the recommended penalty that was under consideration by Mr Elkhatib.

[20] The applicant decided not to make any representations to Mr Elkhatib. On 17 December 2015, Mr Elkhatib wrote to the applicant and, in summary, advised him that he agreed with the recommendations that have been made by Mr Shine, and therefore the applicant was dismissed for serious and wilful misconduct effective from the close of shift on Thursday, 17 December 2015.
[21] Upon termination of employment the applicant was paid any outstanding accrued entitlements, and no notice or payment in lieu of notice was provided.

The Case for the Applicant

[22] Written submissions were provided on behalf of the applicant. In summary, the submissions made on behalf of the applicant asserted that there was not valid reason for the dismissal of the applicant. The submissions made on behalf of the applicant examined the seven allegations that the employer had found proven, and challenged that either individually or in combination, the conduct of the applicant did not provide valid reason for dismissal.

[23] The written submissions made by the applicant divided the seven allegations into two groups; one group which was described as “lunch related offences” and the second group was described as “representative related offences.”

[24] In firstly addressing what was described as the lunch related offences, the applicant submitted that to summarily dismiss an employee for working through lunch on one occasion in 38 years was absurd, and did not constitute a valid reason for dismissal. Further, according to the submissions of the applicant, another incident involving taking a lunch break 15 minutes late on one occasion did not constitute valid reason for dismissal.

[25] It was further submitted that another of the offences relied upon by the employer, which involved the applicant losing three electronic cyber keys which are used to open electronic locks on metal boxes that are situated on a PDO’s round so that the PDO can get more mail, was an issue that was a confection and a deliberate contrivance. Further, another of the lunch related offences of the applicant involved the applicant having a lunch break of 75 minutes duration. It was submitted that section 16.9.1 of the Australia Post Enterprise Agreement 2013 (the Agreement), provided for and expressly permitted a meal break of up to 75 minutes in duration. Consequently, it was submitted that this aspect of the lunch related offences upon which the applicant was dismissed was conduct that was permissible pursuant to the Agreement.

[26] The applicant’s submissions also addressed what was described as the representative related offences. The applicant submitted that the employer’s actions in seeking to rely upon the conduct of the applicant involving his representative activities would breach subsections 772 (d) and (e) of the Act. Consequently, according to the submissions of the applicant, there was a statutory right for employees to be represented by persons of their choice, and to dismiss the applicant because of his representative role was in breach of these statutory rights.

[27] The submissions made on behalf of the applicant also addressed the alleged conflict of interest that the employer found in respect to the applicant’s representative activities. The applicant rejected the prospect that his role as a representative could be characterised as a conflict of interest. The applicant stressed that the employer allowed thousands of Union representatives to provide representation to fellow employees on a daily basis throughout its work locations across Australia. The applicant submitted that the employer’s inconsistent approach whereby it asserted that the applicant’s representative conduct constituted a conflict of interest discriminated against the applicant, and those that he sought to represent, on the basis of their non-Union membership. It was submitted that the conflict of interest aspect of the applicant’s dismissal was always a “red herring”.

[28] The submissions of the applicant also focused upon the summary nature of the applicant’s dismissal. It was contended that it was not appropriate for the employer to summarily dismiss the applicant for serious and wilful misconduct for activities that the employer approved of in other circumstances. Further, the applicant’s submissions noted that he had been continued in active employment during the entire period of the employer’s investigation, deliberation, and ultimate determination to summarily dismiss him.

[29] In summary, the submissions made on behalf of the applicant asserted that the dismissal was harsh, unjust and unreasonable. The applicant contended that he had been representing his fellow workers for 38 years and that this was the first time that representation issues had been raised.

[30] The applicant sought relief for his alleged unfair dismissal in the form of an Order for reinstatement as he said there was no violence or capacity issues involved, and the applicant’s ability and diligence were not in question. It was further submitted that the employment relationship, particularly between the applicant and local management, was cordial and affable on a day-to-day basis, and therefore reinstatement was an appropriate remedy.

The Case for the Employer

[31] The employer provided extensive written submissions which strongly contended that the dismissal of the applicant was not unfair. The initial submissions made on behalf of the employer were constructed by reference to the various factors contained in s. 387 of the Act. Further submissions provided by the employer included a detailed analysis of the evidence provided in respect to the seven aspects of the applicant’s conduct which represented basis for the dismissal.

[32] The employer submitted that it had a valid reason for the dismissal of the applicant. The valid reason for the dismissal of the applicant was examined in detail by reference to each one of the seven incidents of misconduct that were particularised in the letter of dismissal dated 17 December 2015. It was submitted by the employer that the evidence supported the findings that had been made in the disciplinary inquiry undertaken by Mr Shine, and that the established misconduct of the applicant represented sound and rational reasons which constituted a valid reason for dismissal.

[33] The submissions made on behalf of the employer contended that the applicant had not established that he had been unfairly dismissed. The employer further submitted that the evidence established that the misconduct of the applicant constituted serious misconduct warranting summary dismissal. In particular, the employer stressed that the evidence surrounding allegation seven, which involved the applicant’s representative activities, confirmed a conflict of interest which, of itself, amounted to serious and wilful misconduct which justified the applicant’s summary dismissal.

[34] According to the submissions made on behalf of the employer, the actions of the applicant in respect to allegation seven amounted to the intentional defiance by the applicant of the reasonable instruction of the employer. In this regard, it was submitted that the applicant had intentionally refused to refrain from conducting paid representation activities for fellow workers which was conduct that the employer had expressly warned the applicant about as it considered that conduct to constitute a conflict of interest.

[35] The employer submitted that the Commission should reject the applicant’s defence made against the conflict of interest found by the employer in respect to his paid representative activities. It was submitted that the actual representation services to co-workers provided by the applicant on a paid basis was an activity that operated against the employer to its potential or actual detriment. According to the submissions of the employer, the conflict of interest was clear.

[36] The further submissions of the employer challenged the credibility of the applicant. It was submitted that the evidence provided by the applicant lacked candour and that the applicant was not an impressive witness. The submissions made by the employer focused upon evidence of the applicant’s verbal exchanges with managers such as Mr Shine which it was submitted, were disrespectful and offensive on occasions. The employer made further detailed analysis of the applicant’s conduct in respect of the other allegations upon which the dismissal of the applicant had been based. In this regard, the employer submitted that the evidence revealed that the applicant had repeatedly and consciously failed to follow the lawful and reasonable directions of his managers.

[37] The employer also submitted that the applicant had committed serious misconduct in respect to his actions involving several other operational aspects of his work as a PDO. According to the submissions of the employer, the various events which underpinned the operational aspects of the allegations found proven against the applicant amounted to serious and wilful misconduct, particularly when considered in combination.

[38] The submissions made on behalf of the employer further contended that the applicant had been notified of the reasons for his dismissal and he had been given opportunity to respond during the disciplinary investigation, and following the report made by Mr Shine. The employer submitted that there were no procedural deficiencies with the manner in which it had investigated the allegations made against the applicant, and, then subsequently found the conduct of the applicant proven and warranting dismissal.

[39] In further submissions, the employer rejected certain challenges arising from the applicant’s defence of his actions in respect to both the operational aspects of his work as a PDO and the conflict of interest that the employer had found in respect to his representative activities. As an example, the employer submitted that there could be no reasonable reliance upon particular terms of the enterprise agreement as providing basis for the applicant taking a 75 minute lunch break. The employer also rejected that the applicant’s paid representative activities had some relevance in respect to subsections 772 (1) (d) or 772 (1) (e) of the Act.

[40] In summary, the employer submitted that the applicant bears the burden of establishing that his dismissal was unfair. Further, it was submitted that the employer had established that the conduct of the applicant, properly considered, constituted serious and wilful misconduct that justified dismissal. The employer submitted that it was entitled to dismiss the applicant summarily because his proven actions constituted serious misconduct. Consequently, it was contended that the dismissal of the applicant was not harsh, unjust nor unreasonable. The employer submitted that the application should be dismissed.

[41] In an alternative submission, the employer asserted that, if contrary to the weight of evidence and the strong position advanced by the employer, the Commission was to find that the applicant had been unfairly dismissed, any Order for reinstatement should not be made. The submissions of the employer asserted that any remedy of reinstatement would be inappropriate because the employment relationship had irretrievably broken down. Further, it was submitted that if the Commission was satisfied that a remedy of compensation should be provided, then the misconduct of the applicant should reduce any amount that may be provided as compensation.

Consideration

[42] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

[43] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.

[44] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

387 (a) - Valid reason for the dismissal related to capacity or conduct

[45] In this instance, the reason for the summary dismissal of the applicant involved the employer’s findings of serious misconduct in respect to seven particular allegations. The first four allegations of misconduct involved incidents related to the applicant’s conduct in respect to performance of his duties as a PDO. Similarly, allegation six involved an incident connected with the performance of the applicant’s duties as a PDO. Allegations five and seven were connected with the representative activities of the applicant. Allegation seven was specifically concerned with the applicant’s conduct in respect to paid representation of co-workers and conflict of interest considerations. Therefore allegations one, two, three, four and six can be grouped together and considered as PDO work related issues, and allegations five and seven can be categorised as representative related issues.

PDO Work Related Issues - Allegations 1 to 4 and 6

[46] Allegation one concerned an incident that occurred on 4 September 2015, when the applicant refused to work as directed by his immediate supervisor. The applicant refused to perform his duties as a PDO when directed to by his immediate supervisor. The applicant was at least twice directed to perform his duties as a PDO, and he confirmed during the Hearing that he would have refused to comply with any such request from his immediate supervisor even if he had been asked 20 times. 1

[47] The applicant sought to justify his refusal to perform his PDO duties on 4 September because he said he had arranged to have a meeting with a more senior manager about a workers compensation issue that he was agitating on behalf of co-workers. The evidence has established that there was no fixed arrangement for the applicant to meet the senior manager in connection with the workers compensation issue. In any event, the obstinate refusal of the applicant to comply with the reasonable direction of his immediate supervisor could not be excused by any belief that he had a meeting arranged with a senior manager.

[48] Allegation two involved the applicant taking a meal break of 75 minutes duration on 9 September 2015. The applicant took a break of 75 minutes directly contrary to a general direction that the meal break to be observed by PDOs at the Seven Hills Delivery Facility would be of 30 minutes duration.

[49] The applicant sought to defend his taking of a 75 minute meal break by asserting that clause 16.9.1 of the Agreement enabled him to decide the duration of the meal break which could be not less than 30 minutes nor more than 75 minutes. However, the wording of clause 16.9.1 of the Agreement does not permit an employee to determine the duration of the meal break. Any reasonable minded person, particularly someone who had extensive experience in dealing with workplace relations and industrial instruments, would understand that the words “granted a meal break of not less than 30 minutes nor more than 75 minutes” as they appear in clause 16.9.1 of the Agreement, enable the employer, in the absence of other agreement, to determine (grant) the duration of the meal break within the specified time parameters.

[50] On 10 September 2015, the day after the applicant had taken a 75 minute meal break he worked 11.5 hours without a break, and this conduct formed the basis for allegation three. Once again, given the applicant’s extensive experience and involvement in workplace relations matters directly concerning the employer, he would have been acutely aware that he was blatantly breaching fundamental safe work practices when he took it upon himself to work for 11.5 hours without a break.

[51] The incident that underpinned allegation four occurred four days later on 14 September 2015, when the applicant lost an electronic cyber key. This was the third time that the applicant had lost one of these electronic cyber keys. The applicant attempted to excuse his failure to adequately protect the important property of the employer by suggesting that the loss of the electronic cyber key was caused by him not being issued with a security bag in which to secure the key. However, the evidence revealed that the security bags were readily available, and the applicant had not made any serious attempt to obtain one of the bags.

[52] The incident involving allegation six occurred on 24 September 2015, when the applicant once again refused to follow the reasonable direction of his immediate supervisor in respect to the time in which he would take a meal break. The applicant was also absent from duty without approval. Again, the applicant sought to speciously rely upon the terms of clause 16.9.1 of the Agreement, as providing capacity to allow for his own determination of the particular arrangements for the taking of a meal break.

Representative Related Issues - Allegations 5 and 7

[53] Allegation five involved an event which occurred on 21 September 2015, when the applicant participated in a teleconference proceeding before the Commission. On that day the applicant had obtained approval from his team leader to take a meal break between 10:30 am and 11 am. However, the applicant represented a fellow employee during the teleconference conducted in respect of an application to stop bullying, and that conference and the applicant’s participation in it, occurred between 10 am and 11 am. Consequently, from 10 am to 10:30 am the applicant was not performing his duties as a PDO, but instead he was representing a fellow employee in proceedings before the Commission.

[54] The conduct of the applicant in respect to allegation five may have provided the employer with legitimate concern in respect to the applicant apparently misleading his team leader in connection with the alteration to the timing of the taking of a meal break, so that it coincided with part of the period that included the teleconference proceedings before the Commission. However, there would need to be considerable caution applied to any contemplation of invoking some disciplinary penalty in respect to circumstances where an employee was acting as a representative of a fellow employee in proceedings before the Commission. In a different circumstance where a fellow employee was seeking to represent an applicant in a stop bullying matter in proceedings before the Commission, it would seem that some reasonable accommodation for such representation should be provided by the employer.

[55] Allegation seven represented the gravamen of the serious misconduct of the applicant as found by the employer. During September 2015, the applicant engaged in further paid representative activities providing assistance to a fellow employee. The employer had previously warned the applicant that it considered this conduct to represent a conflict of interest of such a serious nature that it jeopardised the applicant’s employment.

[56] The role of a workplace representative is often difficult as it frequently involves direct challenge to the representative’s own employer. Ordinarily, the workplace representative undertakes to speak on behalf of her or his fellow workers on a voluntary basis, without any direct fee or reward being provided to the representative from those being represented. The workplace representative (aka job delegate or shop steward) who is speaking on behalf of fellow workers often engages in an activity which is directly contrary to the interests of her or his employer. The resulting tensions are often difficult to manage, and employment law in Australia has generally recognised that certain protections should be provided in respect to persons exercising representative roles on behalf of fellow workers.

[57] For many years the applicant had engaged in the role of a workplace representative, albeit outside of the registered organisations regime. It appeared that the employer had, quite correctly, recognised the workplace representative role of the applicant, and generally afforded him the appropriate accommodations and protections. However, the workplace representative role of the applicant altered significantly and dramatically with the establishment of a payment for service arrangement via what can be referred to as ELISA.

[58] The workplace representative role of the applicant was transformed once the applicant was receiving payment or other direct reward from those that he was representing. Essentially, the applicant had obtained secondary employment, the purpose of which was directly inimical to the interests of the employer. In the context of the registered organisations regime, the applicant had moved from being a workplace representative to a paid Union official. The applicant’s position was plainly untenable and represented a manifest conflict of interest.

[59] It should also be recognised that the conflict of interest concerns would not be confined to the actions of the applicant against the interests of the employer. There is further prospect for conflict of interest concerns to arise for any one of the applicant’s co-workers that he represented, and for whom he was unsuccessful. This potential difficulty was to some extent realised and commented upon in the Decision of Johns C in the case of Mr Robert Buellsbach v Australian Postal Corporation T/A Australia Post. 2

[60] Although the applicant refused to openly acknowledge the conflict of interest, his own evidence revealed an unfortunate attempt to disingenuously conceal his fundamental understanding of the conflict that had been created once he started obtaining financial benefit from his representative activities. The applicant stated; “I have never received, solicited or accepted any money to represent the legitimate industrial interests, grievances or enquiries of any employee at work.” 3 During cross-examination4, the applicant sought to defend this statement on the basis that he did not receive payment for representation activities conducted “at work” as opposed to representation activities that he conducted away from the workplace. Despite there being no practical capacity to distinguish whether payments made to ELISA were applied only to representation activities conducted away from the workplace, the underlying and inescapable inference of the statement acknowledges the conflict associated with receiving money to conduct an activity inimical to the interests of the employer.

[61] Consequently, allegation seven involving the applicant conducting a paid employee representative role in blatant defiance of the warnings provided by the employer, represented serious and wilful misconduct. The particular misconduct established in allegation seven would, of itself, provide valid reason for dismissal. In the context of the various other aspects of the applicant’s misconduct involving refusal to follow the reasonable instructions of the employer in respect to his duties as a PDO, all but one of the seven allegations particularised in the letter of dismissal provided multiple facets upon which valid reason for the dismissal can be substantiated.

[62] Therefore, when the findings made by the employer in connection with the seven allegations which established serious misconduct are properly, carefully and objectively analysed, all of those allegations other than allegation five, can be supported as representing valid reason for the dismissal of the applicant. The particular findings of serious misconduct made by the employer in respect to allegations one, two, three, four, six and seven have been verified, and represent valid reason for the dismissal of the applicant.

387 (b) - Notification of reason for dismissal

[63] The employer provided written notification of the reasons for the applicant's dismissal. The written notification was provided by way of the termination of employment letter dated 17 December 2015.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[64] The employer conducted an extensive and detailed investigation into the allegations of misconduct against the applicant. The applicant was given an opportunity to respond to those allegations and he did so during the course of the investigation. The applicant was provided with further opportunity to respond to the findings that were made at the conclusion of the investigation. The applicant decided to decline the invitation to make any further representations to the employer before it finalised its decision to dismiss.

387 (d) - Unreasonable refusal to allow a support person to assist

[65] The employer did not unreasonably refuse or otherwise avoid the presence of a support person to assist the applicant at any stage of the investigation. The applicant was accompanied by a support person at his interview with Mr Shine on 19 October 2015.

387 (e) - Warning about unsatisfactory performance

[66] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead, serious misconduct.

387 (f) - Size of enterprise likely to impact on procedures

[67] The employer is a large business operation and broadly adopted appropriate procedures in respect to the investigation into the allegations made against the applicant. The applicant made no criticism of the procedure that was adopted by the employer.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[68] There was no evidence that the employer did not have management specialists or other expertise. The applicant made no criticism of the procedure that was adopted by the employer.

387 (h) - Other relevant matters

[69] The procedure adopted by the employer included one glaring error. The employer consciously permitted the applicant to continue to perform work up until the dismissal on 17 December 2015, in the full knowledge of the nature and extent of the misconduct for which it subsequently invoked a summary dismissal.

[70] Consequently, the employer applied a level of severity to the misconduct of the applicant which was inconsistent with permitting him to continue work throughout the investigation period. This continuation of the applicant in the performance of work meant that the employer could not subsequently summarily dismiss on the basis of the misconduct that the employer was aware of when it permitted the applicant to continue work. 5 In such circumstances, notwithstanding the severity of the applicant’s misconduct, the failure to suspend the applicant from duty meant that the employer was required to implement any dismissal with notice, rather than summarily.

Conclusion

[71] The applicant was summarily dismissed for serious misconduct involving the employer’s findings in respect to seven allegations. Upon proper analysis all but one of the employer’s findings of serious misconduct have been confirmed.

[72] The employer’s finding of serious misconduct in respect to allegation seven regarding the applicant conducting a paid employee representative role in blatant defiance of the warnings provided by the employer, has, of itself, established valid reason for the dismissal of the applicant. Further, other particular incidents of misconduct of the applicant aggregate to represent an elevated level of serious misconduct that would, ordinarily, justify summary dismissal.

[73] However, the employer invoked a summary dismissal in circumstances where the employee had not been suspended from duty, and thus it was deprived of the capacity to dismiss without notice. This particular procedural error made by the employer has rendered what would have otherwise been an entirely fair dismissal with notice, to be an unreasonable and unjust summary dismissal.

[74] Therefore, the summary dismissal of the applicant must be held to have been unreasonable and unjust. The applicant is entitled to remedy for unfair dismissal.

Remedy

[75] The applicant has sought reinstatement as remedy for his unfair dismissal. In this instance, there was a valid reason for the dismissal of the applicant involving serious misconduct. The particular nature of that serious misconduct has provided proper basis upon which the employer would have legitimately lost trust and confidence in the applicant. Therefore, any remedy of reinstatement would be inappropriate. Alternatively, in the particular circumstances of this case, the appropriate remedy would be some limited amount of compensation.

[76] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 6 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd7.

[77] Firstly, I confirm that an Order of payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[78] Secondly, in determining the amount of compensation that I Order I have taken into account all of the circumstances of the matter, including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act. In particular, I mention that there was no evidence of any effect that any Order of compensation would have on the viability of the employer’s enterprise. The applicant had been employed for a very long period of almost 38 years. However, the applicant’s more recent conduct has meant that had he not been summarily dismissed, his employment was likely to have been properly terminated within a very short period.

[79] I note that the applicant has made only minimal efforts to mitigate his loss. I also note that the amount of compensation that I am prepared to provide does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal. In the circumstances of this matter, I believe that it would be appropriate to Order an amount of compensation commensurate with the notice period that the applicant should have received.

[80] Consequently, for the reasons outlined above I have decided that an amount approximating with five weeks remuneration at a conservative estimate of an ordinary weekly rate before dismissal, should be Ordered as compensation to the applicant. That amount is $4,514.00. Accordingly a separate Order [PR584216] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Ms M Wilson, appeared for the applicant.

Mr J McLeod of Counsel with Ms A Anderson of Lander & Rogers Lawyers, appeared for the employer.

Hearing details:

2016.

Sydney:

April, 14.

 1   Transcript @ PN 479.

 2   This Decision can be found at Exhibit 8 – Attachment JB-8, and the relevant paragraphs are [30] to [39], [38] in particular.

 3   Exhibit 1 @ paragraph 11.i.

 4   Transcript @ PN 285.

 5   See for example: McCasker v Darling Downs Co-operative Bacon Association Ltd, Supreme Court of Queensland, [Ryan J], 25IR 107 @ page 114.

 6   Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 7   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

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<Price code C, PR584213>