| [2017] FWC 1200 [Note: This decision has been quashed - refer to Full Bench decision dated 23 May 2017 [[2017] FWCFB 2736] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stif Sekirski
v
Scope (Vic) Ltd
(U2016/11320)
COMMISSIONER GREGORY |
MELBOURNE, 2 MARCH 2017 |
Application for relief from unfair dismissal.
[1] Mr Stif Sekirski commenced employment with Scope (Vic) Ltd (“Scope”) in November 2014 and worked as a Disability Support Worker. He had previously been placed at Scope for a short time prior to that while working for an agency. However, his employment was terminated with immediate effect on grounds of serious misconduct on 2 September 2016. Prior to that time Mr Sekirski had been absent from the workplace since 18 July while an investigation was carried out into an incident that occurred at a residential unit in Reservoir on that evening. Mr Sekirski subsequently filed an unfair dismissal application following his dismissal. This decision deals with that application.
[2] After several delays and adjournments the matter was finally listed for hearing on 18 January 2017. However, in discussions with the parties prior to the hearing it was agreed by both Mr Sekirski and Scope that the application could be determined on the basis of the written materials previously submitted by both parties. The Commission subsequently confirmed this agreement by sending an email to both parties on 12 January 2016 asking them to provide confirmation of their agreement in writing. The email from the Commission stated:
“I now want to confirm what I understand has been agreed as a consequence of those separate discussions with each of you.
Firstly, the formal hearing to deal with the above application with the parties appearing in person, currently scheduled for Wednesday, 18 January in the Fair Work Commission, will not proceed.
The application will instead be determined on the basis of the written materials that have already been submitted by both parties. This includes the submissions, the witness statements, and the other documentation. This process will involve me reviewing all of those materials and then handing down a written decision, after due consideration of what has been submitted. In the normal course of events it can be expected that a decision would be handed down sometime during the next 3/4 weeks. You will both be provided with a copy of the decision once it has been handed down by the Commission.
I would be grateful if you could now both provide written confirmation by return email of your agreement to the matter proceeding in the way that I have set out above. Once confirmation has been received from both of you a further Notice of Listing will also be sent to each of you confirming that the hearing currently listed for next Wednesday has been cancelled.
Thank you again for your assistance in the discussions earlier this morning. Please advise if you require any further clarification regard to the matter.” 1
[3] Scope confirmed its agreement to this course of action in an email from its Operations Adviser, People and Culture, Mr Geoff Chambers. Mr Sekirski also confirmed his agreement in an email received later on the same day, which indicated he understood the hearing scheduled for 18 January would now be cancelled. The Commission subsequently sent a further email to both parties on 12 January confirming what had been agreed, and advising that a further Notice of Listing would now be sent confirming that the hearing has been cancelled. The email stated:
“Dear Mr Sekirski and Mr Chambers,
Thank you very much for the responses you have both now provided to my earlier email.
You have both provided confirmation that the application should now be determined on the basis of the written materials that have been previously submitted by both parties in accordance with the earlier directions issued.
A formal Notice of Listing will now be sent to you both tomorrow confirming that the hearing in the Commission, listed for Wednesday, 18 January, has now been cancelled. A decision will now be handed down in regard to the application in line with the timeframe indicated in my earlier email.
Thank you again for your prompt responses to my earlier email.” 2
[4] A further Notice of Listing cancelling the hearing scheduled for 18 January was then sent to both parties on 13 January 2017.
[5] Section 385 of the Fair Work Act 2009 (Cth) (“the Act”) provides that a person has been unfairly dismissed if the Commission is satisfied that “the dismissal was harsh, unjust or unreasonable.” Section 387 continues to require that the Commission must take into account various considerations in determining whether a dismissal was harsh, unjust or unreasonable. It states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(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.” 3
[6] The Commission is therefore now required to determine whether Mr Sekirski’s summary dismissal on grounds of serious misconduct was harsh, unjust or unreasonable taking into account the various matters in s.387.
[7] Mr Sekirski indicated in his application that he was notified of his dismissal in the letter received from Scope dated 2 September 2016. He attached a copy of the letter, which was signed by Ms Catherine Lengyel, the General Manager, North Division. It states in part:
“I refer to my previous letters to you in connection with matters associated with your employment.
I advise that Scope no longer requires you to attend an interview to respond to allegations detailed in my letter to you of 31 August.
I am now aware that you accept that you assaulted a fellow employee on 18 July, such admission being contained in your email entitled “Accepting all allegations” to Mr. Chambers, a Scope employee, at 2.10 p.m. yesterday.
Additionally you have continued to defy my instructions not to contact Scope employees by telephone, and not to attend Scope sites. I am aware that you telephoned both Mr. Chambers and Mr. Draper on a number of occasions yesterday, and that you attended the Glenroy site yesterday despite Mr. Draper instructing you not to do so.
I regard your actions as serious misconduct warranting summary dismissal. As a result your employment has been terminated with immediate effect.” 4
[8] Mr Sekirski provided a written submission and three witness statements in support of the application. He also provided a number of additional documents dealing with a range of matters. His submission indicates that the alleged misconduct concerned the unlawful restraint of a resident in a van, as well as two separate allegations involving throwing a chair at a work colleague, and striking that person in the face. These incidents were alleged to have occurred on the evening of 18 July 2016 at a residential unit in Reservoir.
[9] Mr Sekirski also attached a copy of what he described as an incident report he had prepared. He submits he attempted to provide this report to Mr Luke Draper at Scope by hand delivering it, but he refused to accept it and instead threatened to call the police. Mr Sekirski indicated in that report that the other employee, Ms Trimble, had acted as though he was hitting her on the head with a telephone during the course of a conversation she was having with Ms Anita Ollerenshaw. He also denied in the report that he was responsible for locking a resident in a van at the unit. The report also indicated that the police were subsequently called, but after attending the unit indicated they would not be taking the matter any further, and it should instead be dealt with “in-house.”
[10] Mr Sekirski’s submission also states that two disability clients were in the area at the time of the alleged incident and told the police that he had done nothing wrong. He also submits that Scope has not properly investigated the matter, and has refused to meet with him to discuss what occurred. In terms of the process involved he also submits he was not provided with information from Scope about what was being investigated until 7 August 2016 when he received a letter from Mr Geoff Chambers. He submits he became very frustrated as a consequence “and agreed to accept the allegations via email.” 5
[11] However, he also attached a copy of a letter provided to him on 4 August 2016 from the General Manager, North Division, Ms Catherine Lengyel, which provided a detailed statement of the allegations and the investigation process that would now be undertaken. It also informed him about who his principal contact at Scope would be, and asked that he not make contact with other employees.
[12] Mr Sekirski also provided a signed statement dated 29 October 2016. It indicates that “Ms Bronwen Trimble acted out I physically attacked her.” 6 He also states that during subsequent interviews with the police on the evening of the incident his privacy was invaded as those discussions were held with others present. He also states that two male residents told the police at the time he was not responsible, and it was instead Ms Trimble who was at fault.
[13] A signed statement was also provided by Ms Sylvia Garoni, who indicated that she is Mr Sekirski’s mother. She said she contacted Mr Luke Draper from Scope after the incident and was concerned about whether the matter had been properly investigated. Ms Connie Koutoulea also provided a signed statement. It indicates she is Mr Sekirski’s girlfriend and states that she was very concerned about his health following the incident, and was also concerned about the way in which it had been investigated.
[14] Mr Sekirski also provided a report from a psychologist, Mr Zak Stojcevski, which indicates that Mr Sekirski was “unable to work in any capacity either at his place of employment or anywhere else and this is likely to continue into the foreseeable future.” 7 It also states “the patient has been involved in a poorly handled work place emergency situation with disabled resident that has led to a staff member confabulating a story to the detriment of the patient with significant symptomatological consequences for the patient inclusive of severe acopia and uncontrollable anxiety attack.” 8
[15] Mr Sekirski also attached a copy of the letter of 4 August 2016 from Scope confirming he had been suspended while the events of 18 July 2016 were investigated. It also indicated that a meeting would be arranged with him to discuss what had occurred, and that the investigation process would be confidential. It also offered Mr Sekirski access to Scope’s Employee Assistance Program and encouraged him to access this service.
[16] He also attached further correspondence sent to him on 9 August 2016 containing details about the investigation process. A further letter was then sent to him on 31 August 2016. It dealt with a range of matters, including the arrangements for a meeting as part of the ongoing investigation into what had occurred. It was proposed that this be held on 9 September 2016. The letter also expressed concern about the nature of recent communications directed to Scope management representatives by Mr Sekirski.
[17] Mr Sekirski also attached a copy of a message sent from his phone to Mr Geoff Chambers on 1 September 2016 under the subject heading “Accepting all allegations.” It indicates in part, “I’ve left you a voicemail Im admitting I bashed Bronwin. Please take this serious because I’m sticking to this confession.” 9 However, the copy of the message provided by Mr Sekirski contains a number of hand written comments, including one that states, in part, that he “made this part up”10 in reference to the statement that “I bashed Bronwin.”11
[18] Mr Sekirski also attached a number of other documents, including some which relate to workers’ compensation claims, freedom of information requests, and patient care reports. I have also had regard to these materials.
[19] Scope provided a submission and two witness statements in response to the application. It submits, firstly, that Mr Sekirski’s dismissal was not a result of the allegation involving the unlawful restraint of a resident, as this incident had not been properly investigated at the time of his dismissal. It also submits he verbally, and later in writing, admitted that he had struck the other employee. It also submits its investigation confirmed beyond reasonable doubt that this did occur, and it denies the allegations that Mr Sekirski has not been appropriately supported by Scope throughout the period following the alleged incident.
[20] It submits, in conclusion, that Mr Sekirski’s actions at the residential units in Reservoir on the evening of 18 July 2016 constituted serious misconduct and justified his summary dismissal following the investigation which confirmed what had occurred. This was set out in the letter of termination dated 2 September 2016 provided to Mr Sekirski. That correspondence also makes clear that a proposed meeting with Mr Sekirski to provide him with the opportunity to respond to the allegations did not in the end take place because it was deemed unnecessary following his admissions about what had occurred.
[21] Scope also provided copies of correspondence sent to Mr Sekirski on 4 and 9 August 2016, which provided details about the allegations and the process of investigation that was now being carried out. The correspondence also confirmed that he had been suspended from duty while the investigation took place. A further letter forwarded to him on 31 August 2016 indicated that as he had now been cleared fit to resume work he would receive full pay as from 30 August 2016. That letter continued to indicate that as part of the investigation he was required to attend a meeting at Scope on Friday, 9 September 2016. It was also recommended in that correspondence that he bring a support person or a representative to the meeting. The letter continued to indicate that the purpose of the meeting was to discuss the preliminary findings from the investigation, and to enable him to provide a response.
[22] Ms Anita Ollerenshaw was in the position of Individual Support and School Engagement Coordinator at Scope at the time of the alleged incident. Her statement also indicates she was the designated on-call officer for the North Division at the time. On the evening of 18 July 2016 she was at home when she received a call from Ms Bronwen Trimble, who was working at the residential unit in Reservoir. The unit accommodates five residents with various disabilities. Mr Trimble told her, firstly, that a resident was refusing to leave a bus that was parked in the driveway, and he had been in the vehicle for approximately six hours.
[23] Ms Ollerenshaw accordingly proceeded to drive to the site but then received a further call from Ms Trimble whilst travelling to the unit. She said Ms Trimble appeared to be in a distressed state and told her that Mr Sekirski was yelling at her and had thrown a chair at her in the dining room. She then heard her gasp and the call was immediately ended. Ms Ollerenshaw called back straight away but the phone was not answered.
[24] Ms Ollerenshaw then received a further call from Ms Trimble on her mobile phone. She told her that Mr Sekirski had hit her on the cheek and had snatched the phone away from her. Ms Ollerenshaw then directed Ms Trimble to leave the house and to wait outside in the street until she arrived. The police were also called and asked to attend the unit immediately.
[25] Ms Ollerenshaw said when she arrived Ms Trimble was in the street and again said that Mr Sekirski had hit her in the face. Ms Ollerenshaw said she could see redness and swelling on Ms Trimble’s right cheek. The police then arrived and took various statements from those involved. Ms Ollerenshaw remained while the police interviewed Mr Sekirski, however, there were no clients in the room at this time. Mr Sekirski was then escorted from the unit and told he was stood down from duties while a full investigation into the incident took place. Ms Ollerenshaw subsequently completed a report into the incident on the following day, which was attached to her statement. She also attached photographs of the injury allegedly caused to Ms Trimble, which were taken on the day after the incident.
[26] Ms Ollerenshaw also attached an incident report that she asked Ms Trimble to prepare. It states in part, that Mr Sekirski “came into the office and saw me on the phone, he punched me in the face and grabbed the phone off me. He then called me a bitch and threw a chair.” 12
[27] Mr Luke Draper is the People & Culture Business Partner for the North Division at Scope. He was given the responsibility for providing administrative support to the investigation, which was initiated following the incident at the unit on 18 July 2016.
[28] He said that after the incident there were a number of abusive and offensive phone messages on his office telephone and Mr Sekirski was advised in writing on 21 July 2016 that he was only to communicate with Mr Draper about his employment at Scope. However, Mr Sekirski continued to forward offensive text messages to other Scope employees.
[29] A further letter was forwarded to Mr Sekirski on 31 August 2016 asking him to attend a meeting to discuss what had occurred. However, Mr Sekirski continued to make contact with Mr Draper and demanded to meet with him. He subsequently attended Scope’s Glenroy office and was asked to leave, but refused to do so. The police were subsequently called but he then left of his own accord.
[30] The letter provided to Mr Sekirski on 2 September last year sets out the reasons for decision to terminate his employment summarily on grounds of serious misconduct. I now turn to consider whether his dismissal was “harsh, unjust or unreasonable” taking into account the considerations in s.387 that the Commission must have regard to.
[31] An explanation about the nature of conduct or behaviour that might be encompassed within the phrase “harsh, unjust or unreasonable” is contained in the decision in Byrne & Frew v Australian Airlines Ltd 13 when McHugh and Gummow JJ stated as follows:
“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 14
[32] The decision of the Full Bench of Fair Work Australia in the matter of L. Sayer v Melsteel Pty Ltd 15 also provides guidance about the Commission’s role in regard to each of the considerations in s.387. It concluded:
“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 16
[33] I now turn to deal with each of the considerations in s.387 having regard to these authorities.
[34] The existence or not of a “valid reason” is invariably an important issue in any unfair dismissal application, and is often determinative. In the often cited decision of Parmalat Food Products Pty Ltd v Kasian Wililo 17 a Full Bench of the Commission made the following statement about the importance of “valid reason”:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination.” 18
[35] It is also clear that the reason must be objectively valid. It is not sufficient that the employer believes it had a valid reason for termination. This was made clear in the Full Bench decision handed down in Rode v Burwood Mitsubishi 19 at paragraph 19 where it held:
“...the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 20
[36] The decision in Selvachandran v Peterson Plastics Pty Ltd 21 also makes clear that the reason should also be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”
[37] Mr Sekirski was dismissed because he allegedly assaulted another employee by striking her in the face while she was speaking on the telephone. It is also alleged that he generally acted aggressively at the time and threw a chair in the employee’s direction. These are clearly serious allegations, which would almost inevitably constitute a “valid reason” for dismissal if found to be substantiated. However, Mr Sekirski denies he was responsible and submits the employee acted as though he was striking her during the course of a telephone conversation she was having with another employee. Mr Sekirski also submits that two residents in the unit observed what happened and later told police he had done nothing wrong.
[38] In determining what did occur I have had regard to the incident report prepared by Ms Trimble, which states in part that Mr Sekirski “came into the office and saw me on the phone, he punched in the face and grabbed the phone off me. He then called me a bitch and threw a chair.” 22 I have also had regard to the statement provided by Ms Ollerenshaw. She states that she was speaking to Ms Trimble on the telephone at the time the incident occurred and heard her gasp sharply before the phone call was abruptly ended. She immediately travelled to the unit and on arrival observed redness and swelling on Ms Trimble’s right cheek.
[39] Mr Sekirski also sent an email to Mr Geoff Chambers at Scope on 1 September 2016. It states in part, “I bashed Bronwin. Please take this serious because I’m sticking to this confession.” 23 However, it is also noted that Mr Sekirski now states that he “made this up,”24 and Scope should not rely on this admission. However, despite seeking to retract this admission he did not provide any other evidence to support the submission that he was not responsible for the incident involving Ms Trimble.
[40] I have no doubt that the work performed by the Disability Support Workers at Scope in the residential units is difficult and demanding. The evidence also indicates that on the evening of 18 July last year the employees were dealing with a particularly difficult situation involving one resident who was refusing to leave a van that was parked in the driveway. However, these difficult circumstances do not provide a reason or excuse for what is alleged to have occurred. It is indeed difficult to imagine any circumstances in which such behaviour could be condoned or accepted.
[41] Having considered the available evidence in this matter I am satisfied that it is reasonable to conclude, on the balance of probabilities, that Mr Sekirski did strike Ms Trimble at the residential unit in Reservoir on the evening of 18 July last year, and that her account of what occurred is to be preferred. I am satisfied, in conclusion, that Scope had a valid reason to dismiss Mr Sekirski.
[42] Mr Sekirski was informed in writing on several occasions about the allegations being investigated, and about their serious nature. It was also indicated that they could constitute serious misconduct warranting summary dismissal, if substantiated. In this context I refer to the various correspondence forwarded to him on 4, 9, and 31 August last year. The actions that were deemed to constitute serious misconduct warranting summary dismissal were also set out again in the letter of termination dated 2 September 2016.
[43] The correspondence provided to Mr Sekirski on 31 August 2016 asked him to attend a meeting on Friday 9 September 2016 at 10.30 a.m. to discuss the preliminary findings from Scope’s investigation into what had occurred, and to obtain his views in response. However, it subsequently decided it was not necessary to proceed with that meeting because of the admission from Mr Sekirski on 1 September 2016. It instead decided at that point to terminate his employment.
[44] The letter referred to above, dated 31 August 2016, from Scope to Mr Sekirski indicated that “We recommend that you bring a support person or representative to the meeting.” 25 However, as indicated, that meeting was overtaken by other events and did not take place.
[45] This consideration is of limited relevance given Mr Sekirski was summarily dismissed on the basis of serious misconduct.
[46] No submissions were made by either party about the relevance or otherwise of these particular considerations. However, Scope is a relatively large organisation and presumably has considerable experience in dealing with employee disciplinary issues. It also appears that it has a dedicated human resource management function, and given its experience and expertise can be expected to be aware of the appropriate procedures to be followed in dealing with termination and dismissal matters.
[47] Mr Sekirski indicated that he suffers from stress and anxiety. He also made reference to the difficult working environment in which he was engaged. He also attached a report dated 25 November 2016 from a psychologist, which has been referred to previously. I am certainly not wanting to downplay or make light of any medical condition that Mr Sekirski might be suffering from. However, it is noted, firstly, that the report is dated 25 November 2016, which is more than 4 months after he was last in the workplace, and more than two months after he was dismissed. In addition, the report makes reference to “a poorly handled workplace emergency situation with disabled resident that has led to a staff member confabulating a story to the detriment of the patient…” 26 However, the report provides no information or explanation about how this conclusion was arrived at, or how Mr Stojcevski could come to this conclusion. Presumably, it is based on nothing more than Mr Sekirski’s account of what occurred as told to Mr Stojcevski.
[48] As indicated, I have had regard to each of the matters in s.387. I am not satisfied, in conclusion, that Mr Sekirski’s dismissal can, in all the circumstances, be considered to be harsh, unjust or unreasonable. In coming to this decision I have had particular regard to the conclusions reached in regard to “valid reason.” Therefore, I am not satisfied that he was unfairly dismissed. It follows from this conclusion that the application must be dismissed.
COMMISSIONER
1 Email correspondence from Fair Work Commission to Applicant and Respondent, dated 12 January 2017.
2 Further email correspondence from Fair Work Commission to Applicant and Respondent, dated 12 January 2017.
3 Fair Work Act 2009 (Cth) s 387.
4 Attachment 16 to Applicant’s Outline of Submissions, received 11 November 2016, Letter from Ms Catherine Lengyel to Applicant, dated 2 September 2016.
5 Applicant’s Outline of Submissions, received 11 November 2016, at [5].
6 Witness statement of Applicant, dated 29 October 2016.
7 Attachment to Applicant’s Outline of Submissions, received 11 November 2016, Psychologist report prepared by Mr Zac Stojcevski, dated 25 November 2016, at p 1.
8 Ibid.
9 Attachment to Applicant’s Outline of Submissions, received 11 November 2016, Email correspondence from Applicant to Respondent, dated 1 September 2016.
10 Ibid.
11 Ibid.
12 Attachment to Witness Statement of Ms Anita Ollerenshaw, dated 20 December 2016, “Incident Report” prepared by Ms Bronwen Trimble.
13 (1995) 185 CLR 410.
14 Ibid at 465.
16 Ibid at [20].
18 Ibid at [24].
19 Print R4471, 11 May 1999, Ross VP , Polites SDP , Foggo C.
20 Ibid at [19].
21 (1995) 62 IR 371 at 373.
22 Above n 12.
23 Above n 9.
24 Ibid.
25 Attachment 15 to Applicant’s Outline of Submissions, received 11 November 2016, Letter from Respondent to Applicant, dated 31 August 2016, at p 2.
26 Above n 7.
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