| [2016] FWC 8316 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Darren Piera
v
Essential Energy T/A Essential Energy
(U2016/3022)
COMMISSIONER SAUNDERS |
NEWCASTLE, 24 NOVEMBER 2016 |
Application for relief from unfair dismissal – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
[1] Mr Darren Piera admits that he had an argument with his supervisor, Mr Wayne Johnson, on 17 February 2016, at which time he called Mr Johnson “computer illiterate”, raised his voice and said to Mr Johnson “if you don’t go away I might knock your head off”, and then yelled at Mr Johnson to “fuck off”. Following an investigation into the incident, Mr Piera was dismissed by Essential Energy on 10 June 2016. Mr Piera alleges that his dismissal was harsh, unjust and unreasonable. Essential Energy denies those allegations.
[2] I heard this matter in Port Macquarie on 3 and 4 November 2016. Mr Piera, former Essential Energy Senior Engineering Officer – Materials, and Ms Leni Alexander, Essential Energy Period Supply Co-ordinator, gave evidence on behalf of Mr Piera. Essential Energy adduced evidence in support of its case from Mr Johnson, Essential Energy Quality Assurance Engineering Manager, Mr Bradley Trethewey, Essential Energy Network Mains Engineer, Mr Andrew Shepherd, Essential Energy Engineering Officer, and Ms Tane Power, Essential Energy Human Resource Business Partner.
[3] I am required by s.396 of the Fair Work Act 2009 (Cth) (the Act) to decide four matters before I consider the merits of Mr Piera’s application. There is no dispute between the parties and I am satisfied on the evidence that:
(a) Mr Piera’s application was made within the period required by s.394(2) of the Act;
(b) Mr Piera was a person protected from unfair dismissal;
(c) Essential Energy was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and
(d) Mr Piera’s dismissal was not a case of genuine redundancy.
[4] I am required by s.387 of the Act to take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Piera’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.
Legal principles
[5] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 The reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced”.3
[6] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 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).5
[7] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.6 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7
[8] In cases, such as the present, where allegations of serious misconduct are made, the standard of proof in relation to the alleged conduct remains the balance of probabilities but "the nature of the issue necessarily affects the process by which reasonable satisfaction is attained" 8 and such satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect inferences"9 or "by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion".10 Put another way, the application of the Briginshaw standard means that I should not lightly make a finding that an employee engaged in the misconduct alleged against him or her.11
Valid reasons contended for by Essential Energy
[9] Essential Energy contends that it had a valid reason to dismiss Mr Piera because he breached his obligations under the Essential Energy Code of Conduct (Code of Conduct) to show respect for people and to act with integrity by engaging in the following conduct on 17 February 2016: 12
(a) verbally abusing Mr Johnson, by swearing at him and yelling at him to “fuck off”;
(b) making insulting remarks to Mr Johnson, by calling him computer illiterate;
(c) physically threatening Mr Johnson, by telling him that he “might/should knock his fucking head off”; and
(d) causing Mr Johnson to feel physically threatened during the altercation.
[10] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 13 as follows:
“[35]... as indicated by Northrop J in Selvachandran, "valid reason" is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a "valid reason" where "valid" has its ordinary meaning of "sound, defensible or well founded". As Northrop J noted, the requirement for a "valid reason" should not impose a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal.”
Code of Conduct
[11] There is no dispute that Mr Piera was aware of, and trained in, the Code of Conduct during his employment with Essential Energy.
[12] The Code of Conduct requires employees to act in accordance with Essential Energy’s values, including:
(a) Respect for People
(b) Act with Integrity
Factual findings re 17 February 2016
[13] Mr Piera admits that on 17 February 2016 he:
(a) yelled at Mr Johnson to “fuck off”; 14
(b) called Mr Johnson computer illiterate; 15 and
(c) said in a raised voice to Mr Johnson “if you don’t go away I might knock your head off”. 16 There is a slight difference between this admission by Mr Piera and the allegation made by Mr Johnson, in that Mr Johnson alleges Mr Piera used the expression “… knock his fucking head off” whereas Mr Piera says he used the expression “… knock your head off”. On Mr Piera’s version of events, he did not swear when making this statement. There is not much difference between either statement. In my view, they are both inappropriate and constitute a serious breach of the Code of Conduct. Mr Shepherd, who was only three metres away from where Mr Piera and Mr Johnson argued on 17 February 2016, heard Mr Piera repeatedly swear at Mr Johnson. In light of this evidence and given Mr Piera’s admitted angry and frustrated state during the argument, I find on the balance of probabilities that Mr Piera said to Mr Johnson that he “might knock his fucking head off”.
[14] I also accept Mr Johnson’s evidence that he felt physically threatened during the altercation with Mr Piera on 17 February 2016. Mr Johnson’s evidence in that regard is supported by the observations made of him by Mr Trethewey 17 and Mr Shepherd18 shortly after the altercation.
[15] Mr Piera accepts that his conduct on 17 February 2016 constitutes a breach of his obligations under the Code of Conduct. 19
Prior history of misconduct
[16] Essential Energy also seeks to rely on earlier formal and informal warnings given to Mr Piera in the period since 2009, to demonstrate an on-going pattern of unacceptable behaviour by Mr Piera. In particular, Essential Energy contends that:
(a) Mr Piera received a formal warning letter dated 6 February 2009;
(b) Mr Piera received a final warning letter dated 29 April 2010;
(c) Mr Piera was counselled in relation to incidents with Mr Johnson in the period from 2013 until September 2015.
[17] The following principles are applicable in relation to the reliance by an employer on earlier instances of misconduct on the part of an employee when making a later decision to dismiss the employee: 20
[18] Mr Piera admits that he received the warning letters dated 6 February 2009 and 29 April 2010. They relate to unwelcome emails Mr Piera sent to a female employee of Essential Energy. Mr Piera claims that the recipient of his emails misunderstood his intentions, but he did sign a copy of each of the warning letters to acknowledge receipt of them and to acknowledge that his conduct was “unacceptable and must not continue”. It was a condition of Mr Piera’s ongoing employment with Essential Energy after receipt by him of the 29 April 2010 warning letter that he successfully complete a rehabilitation program directed at addressing his inappropriate behaviour.
[19] Notwithstanding Mr Piera’s reluctance in the witness box to accept any wrongdoing in relation to these earlier warning letters 21 and the fact that the offending emails and other alleged “harassing behaviour” referred to in the letters was not the subject of any detailed evidence in these proceedings, I am satisfied by reason of Mr Piera’s acknowledgement at the time that his conduct was unacceptable and his agreement to participate in the rehabilitation program that he did engage in inappropriate conduct in 2009 and 2010 and he was warned in writing about such conduct.
[20] Essential Energy alleges that on 5 June 2013 Mr Piera told Mr Johnson to “fuck off” and called him a “micromanager”. Mr Piera denies swearing at Mr Johnson at any time other than on 17 February 2016.
[21] Mr Trethewey gave evidence, which I accept, that a day or so after 5 June 2013 he called Mr Piera aside for an informal meeting in which Mr Trethewey discussed Mr Piera’s behaviour and informed him that it was unacceptable; Mr Piera agreed that he swore at Mr Johnson 22; and Mr Piera informed Mr Trethewey that he had a sore neck from a previous injury which was having a negative impact on his mood and he needed an operation to fix the problem. Mr Trethewey maintained his view that Mr Piera’s behaviour was unacceptable but he accepted Mr Piera’s explanation as a reasonable one in the circumstances. Mr Trethewey’s evidence in relation to this event is supported by a contemporaneous diary note made by him.23 Mr Piera’s evidence that he did have “terrible” neck pain for about two years24 is also consistent with Mr Trethewey’s version of events.
[22] In light of the evidence of Mr Trethewey referred to in the previous paragraph and the corroborating evidence by Mr Piera that he had “terrible” neck pain for about two years, I am satisfied on the balance of probabilities that Mr Piera did tell Mr Johnson to “fuck off” and called him a “micromanager” on about 5 June 2013, and Mr Trethewey told Mr Piera a day or so later that his conduct was unacceptable. I am also satisfied that Mr Piera’s “terrible” neck pain was a mitigating factor in relation to that matter.
[23] On 4 April 2014, Mr Piera was scheduled to have a rostered day off (RDO). However, he attended work because he wanted a day off in the following week instead. Mr Johnson asked Mr Piera why he was at work on his RDO. Mr Johnson alleges that Mr Piera then became verbally abusive towards him, although no evidence was given of what Mr Piera actually said to Mr Johnson.
[24] Mr Piera claims that he sent an email to Mr Johnson notifying him of his change to the date on which he would take his RDO. Mr Johnson denies receiving such an email. No such email was tendered in these proceedings. In any event, I accept Mr Johnson’s unchallenged evidence that the applicable enterprise agreement required mutual consent to change the date of an RDO and no such consent was given by Mr Johnson on this occasion. Further, regardless of whether such an email was sent, it would not excuse verbal abuse by an employee towards their direct manager.
[25] Mr Trethewey gave evidence that he had a discussion with Mr Piera and Mr Johnson in which he informed Mr Piera that Mr Johnson was acting as required by the enterprise agreement in relation to the RDO issue.
[26] In light of the evidence given by Mr Trethewey and Mr Johnson in relation to this incident, I am satisfied on the balance of probabilities that on 4 April 2014 Mr Piera was verbally abusive toward Mr Johnson and Mr Trethewey spoke to Mr Piera about this incident.
[27] On 11 February 2015, Mr Trethewey sent Mr Piera an email in which he warned Mr Piera about sending insensitive and disrespectful emails to Mr Johnson. 25 Mr Trethewey also reminded Mr Piera in his email of his obligations under the Code of Conduct, suggested that Mr Piera apologise to Mr Johnson, and warned Mr Piera that he would refer any further inappropriate emails “to HR for resolution”. The offending email sent by Mr Piera to Mr Johnson included the following statements:26
“Hi Wayne
I don’t understand why you are trying to be an antagonist.
The reason you have issues with staff is because you are a micro manager and have never allowed your competent staff any empowerment.
…Which is making me think your eyes are painted on or you have troubles with reading and comprehension…”
[28] Mr Piera did not apologise to Mr Johnson for sending this email. Mr Piera’s reason for not apologising is clear from the following evidence he gave in cross examination about the email he sent to Mr Johnson: 27
“That is where his chin was broken, I would say. If that's so disrespectful - I just say that's truthful and that's the sort of email I get back over that one comment.
So you don't see any difficulty - - -?---I don't see any - - -
- - - in writing what you did to Mr Johnson?---Yes, I don't see any difficulty in that. As an employee who, under the code of conduct, continuously does improvement and never gets supports from the innovations I add to the value of our business, that comes straight back to the code of conduct, as well.”
[29] I am satisfied that the content of Mr Piera’s email to Mr Johnson was insensitive and disrespectful. It warranted the warning given by Mr Trethewey. The fact that Mr Piera did not apologise to Mr Johnson and continues to maintain he did nothing wrong is telling.
[30] Mr Johnson alleges that on about 30 March 2015 Mr Piera told him that he intended to make life difficult for him. Mr Johnson says there were no witnesses to the discussion. Mr Trethewey and Mr Johnson both gave evidence to the effect that they had a meeting at about this time to discuss the incident and after discussing the incident they decided to maintain a “watching brief” over Mr Piera, rather than investigate the particular allegation. Mr Johnson’s meeting request to Mr Trethewey dated 30 March 2015 supports their evidence that such a meeting took place. 28
[31] Mr Piera denied in his witness statement that the “additional incidents” referred to by Mr Johnson and Mr Trethewey ever occurred. 29
[32] Although Mr Piera was not asked about the incident at the time it allegedly happened, I accept the evidence given by Mr Johnson and Mr Trethewey in relation to this incident and am satisfied on the balance of probabilities that Mr Piera said to Mr Johnson on about 30 March 2015 that he intended to make life difficult for Mr Johnson.
[33] Mr Johnson contends that Mr Piera “thumbed” him in the middle of his (sore) back whilst walking past his chair at a lunch work function, pushed down on Mr Johnson’s knee exerting pressure during work meetings, and, on at least three occasions, slapped the desk in anger, making a loud noise during work meetings. Mr Piera denies these allegations.
[34] Mr Johnson did not give evidence of the dates, or approximate dates, when any of these alleged incidents occurred. Further, Mr Johnson did not report any of these alleged incidents to Mr Trethewey or anyone else at Essential Energy. He says he did not do so because he wanted to give Mr Piera an opportunity to hopefully correct his actions. 30 His evidence in this regard is at odds with the other matters about which he complained to Mr Trethewey, as set out above.
[35] In light of the seriousness of the allegations and the matters set out in the previous paragraph, I am not satisfied on the balance of probabilities that Mr Piera “thumbed” Mr Johnson in the middle of his (sore) back whilst walking past his chair at a lunch work function, pushed down on Mr Johnson’s knee exerting pressure during work meetings, or slapped the desk making a loud noise during work meetings.
[36] In about September 2015, Mr Piera and Mr Johnson were alone in a meeting room for the purpose of discussing Mr Piera’s performance appraisal. They argued about work undertaken by Mr Piera in relation to an Approved Materials List. Mr Johnson alleges that Mr Piera yelled at him and told him to “fuck off”. Mr Piera believes that Mr Johnson was trying to provoke him, at which time he says that he got up, opened the door and as he walked out the door he said “well, fucking hell!”.
[37] Mr Piera accepts that he attended a meeting with Mr Trethewey in which he received an informal warning from Mr Trethewey for his conduct in the performance appraisal meeting.
[38] In light of the contemporaneous complaint made by Mr Johnson to Mr Trethewey about this matter and the similarity between the comment allegedly made by Mr Piera in about September 2015 and the comment he admits making to Mr Johnson on 17 February 2016 31, I am satisfied on the balance of probability that Mr Piera told Mr Johnson to “fuck off” in September 2015. I am also satisfied that Mr Trethewey gave Mr Piera an oral warning about this conduct, reminded him of the Code of Conduct, and told him that the next verbal incident would be referred to human resources.
Conclusion on valid reason
[39] Mr Piera’s substantial breaches of the Code of Conduct on 17 February 2016 gave Essential Energy a sound, defensible and well founded reason to dismiss Mr Piera.
[40] In addition to Mr Piera’s conduct on 17 February 2016, I have found that Mr Piera engaged in inappropriate conduct (as set out above) in the period from 2009 until about September 2015, and he received oral and written warnings in relation to much of that conduct. Because Essential Energy had full knowledge of those earlier instances of misconduct on the part of Mr Piera and decided to retain him in employment, those earlier instances of misconduct cannot, of themselves, constitute valid reasons for dismissal. However, those instances of earlier misconduct increase the gravity of Mr Piera’s misconduct on 17 February 2016, particularly given much of the earlier misconduct was of a similar character and Mr Piera was warned not to repeat it, thereby contributing to a finding that the reason for dismissal was sound, defensible and well founded.
[41] For the reasons set out above, I am satisfied that Essential Energy had a valid reason for Mr Piera’s dismissal related to his conduct, including its effect on the safety and welfare of other employees.
[42] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 32, and in explicit33 and plain and clear terms.34 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[43] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 35
[44] Allegations in relation to the incident on 17 February 2016 were put to Mr Piera in a letter from Essential Energy dated 1 March 2016. Mr Piera responded to those allegations in writing by way of a letter to Essential Energy dated 6 March 2016. In addition, Mr Piera was given the opportunity to, and did, provide a response to the allegations in a meeting with Essential Energy on 4 March 2016.
[45] Mr Piera was given a further opportunity in a show cause letter dated 2 May 2016 to respond to the allegations made against him. Mr Piera was also stood down on full pay on 2 May 2016. He provided a written response to the show cause letter by letter dated 6 May 2016. The United Services Union (USU), of which Mr Piera is a member, also responded to the show cause letter in their correspondence to Essential Energy dated 9 May 2016. In that letter the USU requested a meeting with the final decision maker prior to any decision being made concerning Mr Piera. Essential Energy acceded to that request and participated in a meeting with the USU and Mr Piera on 17 May 2016.
[46] By letter dated 6 June 2016 from Essential Energy, Mr Piera was requested to attend a meeting in relation to the outcome of his show cause response. That meeting took place on 10 June 2016. At the meeting Mr Piera was provided with a letter of termination which set out the reason for his dismissal.
[47] On the basis of the evidence summarised in the previous three paragraphs, I am satisfied that Essential Energy notified Mr Piera of the reason for his dismissal and gave him multiple opportunities to respond to that reason before making the decision to dismiss him.
[48] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[49] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”36
[50] Mr Piera had a support person with him during his meetings with Essential Energy on 4 March 2016, 2 May 2016, 17 May 2016 and 10 June 2016. Accordingly, I am satisfied that there was no unreasonable refusal by Essential Energy to allow Mr Piera to have a support person present to assist at any discussions relating to his dismissal.
[51] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.
[52] In this case, the reasons for dismissal related to Mr Piera’s conduct, rather than his performance, so this consideration is not relevant.
[53] Essential Energy is a large business enterprise. I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Piera’s dismissal.
[54] Essential Energy has dedicated human resource management specialists and expertise, so this consideration is not relevant.
[55] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[56] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 37 in the following terms:
“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]
[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.
...
[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):
“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”
[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”
[57] There are a number of “other matters” which are relevant to my determination as to whether Mr Piera’s dismissal was harsh, unjust or unreasonable. I will deal with each of them in turn below.
Essential Energy’s investigation
[58] Mr Piera contends that Essential Energy’s investigation into the events of 17 February 2016 was deficient and unfair for a large number of reasons, including the following:
(a) Ms Alexander was not interviewed by Essential Energy in its investigation into the events of 17 February 2016;
(b) Mr Piera contends that Mr Trethewey should have spoken to Mr Piera to obtain his version of events in the days following the incident on 17 February 2016;
(c) On 14 March 2016, Mr Piera made a bullying and harassment complaint against Mr Johnson. Mr Piera contends that he was not afforded due process in relation to the investigation by Essential Energy into these allegations, nor was he afforded a right of reply in relation to the outcome of the investigation into the bullying and harassment allegations. The USU also criticises Mr Trethewey for organising Mr Johnson to be working away from the office for much of the time that the bullying and harassment allegations were being investigated; and
(d) Mr Piera contends that the investigation took too long.
[59] As to the allegation that Ms Alexander was not interviewed during the investigation, Ms Alexander gave evidence in these proceedings that, although she was in “earshot” of the disagreement between Mr Piera and Mr Johnson on 17 February 2016, she “couldn’t hear the nature of the conversation”. 38 The only words Ms Alexander could make out were words to the effect of “Wayne, we can’t do that”.39 In those circumstances, I am satisfied that there was no failure by Essential Energy to interview Ms Alexander during its investigation into the incident. Further, given that Ms Alexander was both the USU delegate and Mr Piera’s support person during the investigation process, if she believed she could have added something useful to the investigation I am satisfied she would have raised those matters with Essential Energy during one of the meetings she attended with Mr Piera.
[60] Mr Trethewey did speak to Mr Johnson on the day of the incident. He also spoke to Mr Shepherd shortly after the incident. I accept Mr Trethewey’s evidence that he attempted to speak to Mr Piera in the days following the incident, but Mr Piera was not at his desk at those times. I also accept Mr Trethewey’s evidence that he handed the investigation over to human resources shortly after the incident, with the result that it was not his function or responsibility to interview Mr Piera. That interview was conducted by employees in the human resources team.
[61] Essential Energy investigated Mr Piera’s allegations of bullying and harassment. By letter dated 27 April 2016, Mr Piera was informed of the outcome of those investigations. In short, Essential Energy concluded that it was unable to substantiate any of the allegations made by Mr Piera. Those allegations were not the subject of any detailed evidence 40 or cross examination in these proceedings. I am therefore not in a position to make any findings about Mr Piera’s allegations of bullying and harassment. In any event, the manner in which that investigation was conducted and whether Mr Piera was afforded procedural fairness in relation to it do not have any material relevance to the questions I need to decide in Mr Piera’s unfair dismissal case. I am satisfied that Mr Trethewey’s decision to keep Mr Johnson away from the office as much as possible, and therefore away from Mr Piera, while the bullying and harassment claims were investigated was a reasonable one in the circumstances.
[62] Essential Energy’s investigation into the incident on 17 February 2016 was put on hold while Mr Piera’s allegations that he had been bullied and harassed by Mr Johnson were investigated. Mr Piera made his allegations of bullying and harassment on 14 March 2016 and he was informed of the outcome of that investigation on 27 April 2016. Shortly thereafter (2 May 2016), Mr Piera was given a further opportunity to respond to the allegations made against him. The conclusion of that investigation was also delayed to enable Essential Energy to meet with the USU and Mr Piera, as requested by them, before making a decision about the potential termination of Mr Piera’s employment. In the circumstances, I am satisfied that the investigation into the allegations against Mr Piera did not take too long.
Provocation
[63] Mr Piera contends that Mr Johnson provoked him on 17 February 2016. In particular, Mr Piera points to the following:
(a) Mr Johnson gave Mr Piera an unreasonable direction on 17 February 2016;
(b) Mr Johnson did not leave Mr Piera’s work area after being requested to do so in a polite manner by Mr Piera on 17 February 2016;
(c) Mr Johnson did not follow Mr Piera’s repeated requests to leave on 17 February 2016;
(d) Mr Johnson failed to recognise the escalation of frustration and anger on 17 February 2016; and
(e) Mr Piera could not leave his workspace during his argument with Mr Johnson because his exit was blocked by a stack of chairs.
[64] The subject matter of the dispute between Mr Johnson and Mr Piera on 17 February 2016 was a direction by Mr Johnson for Mr Piera to include additional information in the Approved Materials List. In particular, Mr Johnson asked Mr Piera to include the country of origin, region, weight, width, length and height next to items in the Approved Materials List. Mr Piera pointed out a number of difficulties associated with the task Mr Johnson had given him, including complications concerning whether the item in the list was a packaged weight or a single item, and the “difficulty of having multiple manufacturers against the items but listed against the same Cat numbers who had different origins and weights and measurements”. 41
[65] Mr Piera proposed, as an alternative solution, that rather than including such information in the Approved Materials List, it would be easier, more accurate and more efficient to use the PeopleSoft inventory system that Mr Piera had been developing to run a query report for the relevant information and then print off or show the report. Mr Johnson was not satisfied with this proposal. He responded to Mr Piera by repeatedly saying that Mr Piera should cut and paste the information into the Microsoft word version of the Approved Materials List.
[66] Mr Piera understood Mr Johnson to mean that he (Mr Piera) had to cut and paste a very significant amount of information, piece by piece, into the Microsoft word version of the Approved Materials List. However, it is clear from the evidence given by Mr Johnson in these proceedings that what he in fact intended was for Mr Piera to run the query using the PeopleSoft system and then cut and paste the query result, in one go, into the Microsoft word version of the Approved Materials List. 42 I am satisfied that this misunderstanding of what was intended by Mr Johnson’s direction was at the heart of the dispute between Mr Piera and Mr Johnson on 17 February 2016.
[67] I am satisfied that the direction given by Mr Johnson to Mr Piera to include the additional information in the Approved Materials List and to do so by cutting and pasting the relevant information into the Approved Materials List was a reasonable direction. Mr Trethewey, the manager of the relevant part of the business, gave evidence to support such a conclusion. 43
[68] I reject Mr Piera’s contention that Mr Johnson’s direction for him to include the additional information in the Approved Materials List was contrary to either the Code of Conduct or the relevant part of the business plan. Notwithstanding that the Code of Conduct promotes innovation and Mr Piera was innovating by developing the PeopleSoft inventory system, requiring Mr Piera to include the relevant information in the Approved Materials List was not inconsistent with the Code of Conduct. In addition, although both Mr Piera’s 2015/16 annual performance plan and review and the business plan called on Mr Piera to achieve the PeopleSoft generation of an Approved Materials List, the direction for Mr Piera to cut and paste the additional information from the PeopleSoft system into a Microsoft word version of the Approved Materials List was not inconsistent with that plan.
[69] I am also satisfied that, as contended by Mr Piera, he did say to Mr Johnson, after being told on a number of occasions to cut and paste the information into the Approved Materials List, “Wayne you don’t understand, you are computer illiterate, you are frustrating me, please go away”. 44 I accept that Mr Johnson then told Mr Piera that he deserved more respect and Mr Piera, once again, asked him to leave.45 Mr Johnson did not do so. The situation escalated as Mr Piera became more frustrated and angry.46
[70] There is a dispute about whether Mr Piera said, as he contends, “you will get what you get and it will work well” or, as Mr Johnson contends, “you will get what you fucking get”. In circumstances where Mr Piera admits that he was angry and frustrated and an independent witness, Mr Andrew Shepherd, who was sitting about three metres away from the argument, heard Mr Piera repeatedly swear at Mr Johnson, 47 I am satisfied on the balance of probabilities that Mr Piera said to Mr Johnson “you will get what you fucking get”.
[71] There is a dispute between Mr Piera and Mr Johnson about whether either or both of them were standing up or sitting down towards the end of the argument. Mr Johnson contends that Mr Piera stood up during the argument and stood close to him when he was yelling and swearing at him towards the end of the argument. 48 Mr Piera contends that he remained seated during the argument.
[72] Mr Johnson went and saw Mr Trethewey a few minutes after the argument. Mr Johnson told Mr Trethewey that Mr Piera “moved into (or moved towards) Mr Johnson’s personal space in what he interpreted to be an aggressive manner”. 49
[73] Mr Shepherd gave evidence that Mr Johnson was definitely standing up at the end of the argument, but he could not recall if Mr Piera was “either leaning forwards a little or about to stand up … I couldn't tell you exactly how he [Mr Piera] was - I was sort of more focused on Mr Johnson … there was some difference in posture but whether it was actually standing I couldn't tell you.” 50
[74] In his response to Essential Energy dated 6 March 2016, Mr Piera stated that Mr Johnson “remained seated” and “I then leant forward and remained in my chair, there was still 0.6-0.8 metres between us, my hands were clasp down in my lap, I had no intent of violence, and I yelled at him ‘fuck off’. (I was feeling an intense anger and I was aware that I had been taken to my absolute tolerance limit, which frankly scared myself to seek EAP assistance).” 51 Mr Piera maintained this version of events in his witness statement.52
[75] Given the consistent evidence, apart from that given by Mr Piera, that Mr Johnson was standing up at the end of the argument, I am satisfied that he was in such a position at the end of the argument. I am also satisfied that Mr Piera was leaning forward in his chair close to Mr Johnson, but was not standing up, towards the end of the argument. I make this finding principally on the basis of Mr Shepherd’s evidence as an independent and somewhat unwilling witness. His evidence that “there was some difference in posture” between Mr Piera and Mr Johnson was persuasive.
[76] I accept Mr Piera’s evidence that he works in a corner office and Mr Johnson was blocking his exit during the argument because the other exit was stacked with chairs on 17 February 2016. 53 However, I also accept Mr Piera’s evidence that he was in his own work space and “felt no propensity to leave”.54
[77] I have considered Mr Piera’s provocation arguments. I am satisfied that Mr Piera’s conduct in swearing at and threatening his manager, Mr Johnson, on 17 February 2016 was both serious and a substantial breach of the Code of Conduct. In my view, it cannot be excused even in circumstances where Mr Piera felt provoked by Mr Johnson’s conduct.
Mr Piera’s workload and mental health
[78] Mr Piera contends that his workload was excessive and he was under stress at the time he was given the instruction to include the additional information in the Approved Materials List. The USU submits that the direction for Mr Piera to include the additional information in the Approved Materials List caused Mr Piera considerable stress which affected his health.
[79] Mr Piera clearly had a significant workload in his job at Essential Energy. However, he gave evidence, which I accept, that he was able to achieve his target objectives. 55 I am satisfied that his workload was significant, but not excessive.
[80] I also accept that Mr Piera was under stress at work, and the direction for him to include additional information on the Approved Materials List added to that stress. Indeed, Mr Trethewey gave evidence, which I accept, that at the time the working environment at Essential Energy was quite stressful, but Mr Piera was not subjected to more stress than anyone else in the workplace. 56
[81] I accept Mr Piera’s evidence that he has been seeking medical help from his doctor for depression and anxiety since 16 June 2015.
[82] Mr Piera contends that Essential Energy was aware of his fragile mental state on 17 February 2016. Mr Trethewey accepted in cross examination that everybody, including Mr Piera, “talks about stress in the workplace at the moment. That's a given.” 57 However, both Mr Johnson and Mr Trethewey deny they were aware of Mr Piera’s claim that he was suffering psychological stress or that he was being treated for such a condition.
[83] In support of his contention that Mr Johnson and Mr Trethewey were aware of these matters, Mr Piera relies on an email sent by him to Mr Johnson and Mr Trethewey on 7 September 2015 in which Mr Piera stated:
“…I don’t find it funny and I get cranky. The comment is often made when I get cranky that I should be taking a pill. Well, I am starting to think that perhaps I should and so I have...”
[84] In my view, this statement in the email would not reasonably have put a manager on notice that the writer of the email was suffering psychological stress or that he was being treated for such a condition.
[85] I accept the evidence given by Mr Johnson and Mr Trethewey that they were not aware, at the time of the incident on 17 February 2016, of Mr Piera’s claim that he was suffering psychological stress or that he was being treated for such a condition.
[86] The fact that, at the time of the incident on 17 February 2016, Mr Piera had a significant workload, was suffering from psychological stress and was being treated for depression and anxiety are relevant mitigating factors to which I have had regard in assessing whether Mr Piera’s dismissal was harsh, unjust and/or unreasonable.
Remorse
[87] I accept that Mr Piera has shown genuine remorse in relation to his conduct on 17 February 2016. He recognises the problems with his conduct on 17 February 2016, and has apologised for it.
[88] The fact that Mr Piera was civil towards Mr Johnson for the remainder of his employment at Essential Energy after 17 February 2016 demonstrates that his remorse was genuine and he has made significant efforts to address his conduct.
[89] I have had regard to Mr Piera’s genuine remorse in assessing whether Mr Piera’s dismissal was harsh, unjust and/or unreasonable.
Mr Piera’s history of employment with Essential Energy
[90] Mr Piera commenced employment with Essential Energy on 18 December 2006 and remained in that employment until he was dismissed on 10 June 2016. It is clear from the evidence given by Ms Alexander and Mr Shepherd that Mr Piera was a good employee most of the time during his employment with Essential Energy. Indeed, as Mr Trethewey put it, “a good portion of the work Mr Piera did provided good value to the company”. 58 There is also no doubt that Mr Piera was committed to his employment at Essential Energy and worked hard to achieve the goals set for him. In his annual performance review for 2015/16, Mr Piera was rated by Mr Johnson as meeting, exceeding or significantly exceeding expectations in all areas other than “respect for people”, in respect of which Mr Johnson ranked him as “significantly below expectations”.
[91] However, the positive aspects of Mr Piera’s work performance must be weighed against the misconduct in which he engaged in coming to an overall view about Mr Piera’s performance and the history of employment with Essential Energy. As Mr Trethewey concluded: 59
“…sadly he seemed unable to control himself to the detriment of himself and others… It is however my conclusion that the behavioural issues exhibited by Mr Piera are insurmountable within the team I manage and cannot be condoned as they are a clear violation of the Code of Conduct…”
Harshness of the dismissal
[92] Mr Piera’s dismissal has had significant negative consequences for his personal and economic situation. In particular, he has lost a job which he enjoyed and which provided him and his family with financial support. Mr Piera’s family, including his teenage daughters, are financially dependent on him. He has a mortgage that he needs to service. Further, as a result of being dismissed for “serious misconduct”, albeit with a payment of five weeks’ wages in lieu of notice, 60 Mr Piera was not paid any pro rata long service leave on the termination of his employment by Essential Energy.
[93] I accept that Mr Piera has made significant efforts to find alternative employment, but he has not been able to find such work. I also accept it will be difficult for Mr Piera to find alternative employment, particularly in a regional location such as Port Macquarie.
[94] The harsh aspects of the dismissal must be weighed against the gravity of Mr Piera’s misconduct in respect of which Essential Energy acted in deciding to dismiss him. In the circumstances, I am satisfied that Mr Piera’s dismissal was not disproportionate to the gravity of the misconduct in which he engaged on 17 February 2016 and earlier in his employment (as set out above), nor was it harsh in any other sense.
[95] Essential Energy had a sound, defensible and well founded reason for dismissing Mr Piera on the basis of his conduct. In particular, Mr Piera’s dismissal was based on his substantial breaches of Essential Energy’s Code of Conduct. Essential Energy undertook a detailed investigation into Mr Piera’s conduct and the matters he raised. Essential Energy afforded Mr Piera and the USU every chance to participate in the investigation and respond to the allegations made against him before the final decision was made to terminate his employment. He was afforded procedural fairness throughout the process. Essential Energy’s decision to impose the sanction of termination of employment was supported by a prior history of inappropriate conduct by Mr Piera in the workplace.
[96] Having considered each of the matters specified in s.387 of the Act, I am satisfied that Essential Energy’s dismissal of Mr Piera was not harsh, unjust or unreasonable. Mr Piera’s unfair dismissal application is therefore dismissed.
COMMISSIONER
Appearances:
Ms M Pond, Organiser from the United Services Union, on behalf of the applicant;
Mr P Smith, Manager Industrial Relations on behalf of the respondent.
Hearing details:
2016.
Port Macquarie:
November, 3 - 4.
1 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.
2 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
3 Ibid
4 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
5 Ibid
6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
7 Ibid
8 Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363
9 Ibid per Dixon J at p 362
10 Ibid per Rich J at p 350
11 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
12 See letter of termination and written submissions filed on behalf of Essential Energy
14 Ex A3 at [34]
15 PN545
16 Ex A3 at [33]
17 Ex R6 at [5]
18 Ex R5 at [7]
19 PN445-6
20 Diaz v Anzpac Services (Australia) Pty Limited [2016] FWCFB 7204 at [12]-[16] and Toll Holdings Ltd t/a Toll Transport v Johnpulle [2016] FWCFB 108 at [15]
21 PN336; see too Ex A3 at [26]
22 PN1204
23 Ex R7
24 Ex A3 at [20]
25 Ex R1
26 Ex R1
27 PN440-2
28 Ex R3
29 Ex A3 at [25]
30 PN945
31 In particular, Mr Piera admits telling Mr Johnson to “fuck off” on 17 February 2016.
32 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
33 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
34 Previsic v Australian Quarantine Inspection Services Print Q3730
35 RMIT v Asher (2010) 194 IR 1 at 14-15
36 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].
38 Ex A5 at [5] & [8]
39 Ex A5 at [7]
40 Noting that Mr Piera attached a copy of his bullying complaint form to his witness statement
41 Ex R8 at TP6
42 PN882-6
43 PN1139-42
44 Ex R8 at TP6
45 Ibid
46 Ibid
47 Ex R5 at [7]
48 Ex R4 at [10]-[12]; PN888-90
49 Ex R6 at [7]
50 PN1102-5
51 Ex R8 at TP6
52 Ex A3 at [33]-[34]
53 Ex A3 at [35]
54 Ex A3 at [35]
55 PN266-70
56 PN1235 & PN1264
57 PN1271
58 Ex R6 at [27]
59 Ex R6 at [27]
60 See the letter of termination at Ex R8, TP12
Printed by authority of the Commonwealth Government Printer
<Price code C, PR587707>