| [2017] FWC 253 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Muirhead
v
Parramatta National Rugby League Club Pty Ltd T/A Parramatta National Rugby League Club
(U2016/11625)
DEPUTY PRESIDENT BOOTH |
SYDNEY, 24 JANUARY 2017 |
Application for relief from unfair dismissal - conduct - summary dismissal
[1] Mr Mark Muirhead was employed by the Parramatta National Rugby League Club Pty Ltd t/a Parramatta Rugby League Club (PNRL) from 22 September 2015 until his dismissal on 2 September 2016.
[2] Mr Muirhead was employed on a full time basis as a Business Development Executive. Mr Muirhead described this role as a sales position in which he was required to create new business by retaining existing clients and building new ones.
[3] In a meeting on 2 September 2016 Mr Muirhead was summarily dismissed for serious misconduct. He was not paid in lieu of notice.
[4] In dismissing him, PNRL alleged that Mr Muirhead had acted in an unprofessional manner by blaming colleagues for an unpaid invoice when questioned by a supplier and had also sent an inappropriate email to a supervisor expressing his displeasure at the implementation of a kitchen roster. Mr Muirhead disputes that his conduct warranted dismissal and asks the Commission to make this finding and order PNRL to pay him compensation. He is not seeking reinstatement.
[5] With permission Mr Muirhead was represented by Mr Gorval, solicitor. PNRL was represented by Mr Dooley, its Corporate Services Manager (HR, Payroll and IT).
[6] Evidence was given by Mr Muirhead on his own behalf. Evidence was given for PNRL by Mr Joseph Marrone, Acting Commercial Partnership Manager.
[7] When conduct is the reason for dismissal the Commission’s first task is always to make a finding, on the balance of probabilities, about whether the conduct actually happened. 1
[8] This is the case whether the conduct is said to justify dismissal with or without notice. The Commission is not required to consider whether the conduct was serious misconduct, rather whether the conduct occurred and, if so, whether it provided a valid reason for dismissal. 2
[9] For the reasons outlined below I have decided that Mr Muirhead was unfairly dismissed and I have ordered that PNRL pay Mr Muirhead $9,464.42 plus superannuation in compensation.
[10] Before I turn to considering whether Mr Muirhead was unfairly dismissed there are some initial matters that I must address pursuant to sections 396 and 385 of the Fair Work Act 2009 (the Act).
[11] I am satisfied Mr Muirhead made his application within 21 days after the dismissal took effect, as required by subsection 394(2)(a) of the Act.
[12] I am satisfied that Mr Muirhead is a person who was protected from unfair dismissal under section 382 of the Act. Mr Muirhead had completed a period of employment with PNRL greater than the minimum required period pursuant to subsection 382(a). As PNRL is not a small business employer, that minimum period is 6 months. Mr Muirhead earned a salary of $61,200.00 (exclusive of superannuation) at the time of his dismissal and therefore his application also satisfies subsection 382(b) of the Act.
[13] As PNRL was not a small business employer it is not relevant for me to consider whether Mr Muirhead’s dismissal was consistent with the Small Business Fair Dismissal Code.
[14] There is no suggestion that Mr Muirhead’s dismissal was a case of genuine redundancy.
[15] Therefore, having considered subsections 396(a) to (d) of the Act I conclude that they present no impediment to me considering the merits of Mr Muirhead’s case.
[16] Turning to section 385 of the Act, it is agreed between the parties that Mr Muirhead’s employment was terminated on the initiative of PNRL. That is, Mr Muirhead was dismissed within the meaning of subsection 386(1)(a) of the Act.
[17] It therefore remains for me to consider whether PNRL’s dismissal of Mr Muirhead was harsh, unjust or unreasonable.
[18] An employer must have a valid reason for the dismissal of an employee which is sound, defensible and well founded. 3 A reason that is capricious, fanciful, spiteful or prejudiced is not a valid reason.4
[19] In determining whether there was a valid reason for dismissal, the Commission does not stand in the shoes of the employer but rather must be satisfied that the termination of the employee was for a valid reason. 5
[20] A valid reason could be a relatively unimportant valid reason, or one which is of much greater importance. 6
[21] PNRL relies on three reasons it alleges are valid reasons for Mr Muirhead’s dismissal. These are:
1. The sending of an inappropriate email to a senior staff member regarding the implementation of a kitchen roster on 17 August 2016;
2. A series of related emails beginning with an email Mr Muirhead sent to an external supplier on 24 August 2016 blaming colleagues for an unpaid account; and
3. Mr Muirhead’s attempt to send a confidential document to his private email in the time between a show cause meeting and the meeting at which his employment was terminated.
First reason - email of 17 August 2016
[22] On 17 August 2016 at 2:56pm Mr Michael Basan of PNRL circulated an internal email which set out a new staff kitchen roster. The email specified that each week a different department would be responsible for duties including dishwasher loading and unloading, cleaning out the fridge and general kitchen tidiness. 7
[23] At 2:59pm on the same day, Mr Muirhead replied to Mr Basan’s email as follows:
“Correct me if I am wrong Bas, but I don’t get provided lunch anymore, as per my employment contract and still in discussions with HR, but now I have to clean up stuff? Yeah nah”
[24] The reference to no longer being provided lunch anymore referred to the fact that Mr Muirhead’s initial employment arrangement included a $10.00 per day lunch allowance to be used at the Club’s catering facilities. This benefit was removed when PNRL moved locations on 29 March 2016. Material provided by PNRL indicated that in lieu of that allowance Mr Muirhead received a $1,200.00 per annum salary increase as well as daily fresh fruit that was provided to all staff.
[25] As a result of sending that email, Mr Muirhead was required to attend a meeting on 18 August 2016 with his then supervisor, Mr Marrone, and Mr Dooley. He was issued with a formal written warning on 23 August 2016. The letter was signed by Mr Marrone and stated, relevantly;
“Further to the counselling session conducted with you on 18 August 2016, I confirm that you are being issued with a formal written warning as a result of the inappropriate email sent to Michael Basan regarding the implementation of a kitchen roster.
This behaviour demonstrates lack of respect to a senior staff member and manager and is not in accordance with the Code of Conduct. In addition, as outlined in clause 8.1 (a) of your Employment Agreement, during the course of your employment you are expected to carry out all lawful and reasonable instructions.
I expect that in future you will behave and communicate with all staff in an appropriate and professional manner and follow reasonable instructions.
Please be advised that failure to improve your behaviour may result in further disciplinary action being taken against you, up to and including termination of your employment.
[26] There is no dispute between the parties that the conduct in question did occur. That is, there is no dispute that Mr Muirhead did send the email to Mr Basan.
[27] Mr Gorval submitted that PNRL’s directive to employees to participate in a kitchen roster fell outside the scope of Mr Muirhead’s role as a Business Development Executive, was therefore not a lawful and reasonable direction and on that basis the formal warning issued by PNRL on 23 August 2016 was without merit or cause. However in cross examination by Mr Dooley Mr Muirhead such a request was a reasonable directive from management. 8
[28] Ultimately it is not necessary to determine whether the directive for Mr Muirhead to participate in a kitchen roster was lawful or reasonable, although I consider it probably was. I find that the email sent by Mr Muirhead to Mr Basan was clearly inappropriate, notwithstanding whether the directive regarding the kitchen roster was reasonable. The email was rude and written in a tone inappropriate for correspondence with a co-worker, particularly one in a senior role. Indeed, Mr Muirhead conceded in his evidence that the email was one which he “probably didn’t need to send”. 9
[29] Accordingly I consider that the email of 17 August 2016 constituted a valid reason for Mr Muirhead’s dismissal, as it was sound, defensible and well founded.
Second Reason - email of 24 August 2016 and subsequent communications
[30] As part of Mr Muirhead’s role in developing client relations he had been tasked by his manager at the time, Mr Ryan Holloway, to arrange a client golf day. This event took place at the venue Riverside Oaks. Mr Muirhead gave evidence that the purpose of the golf day was to sell the event as a package to existing sponsors as an opportunity for them to play golf with NRL players.
[31] Mr Muirhead says that the day had gone well and a profit had been made. Mr Muirhead indicated that he was in discussions with Riverside Oaks about organising the event again in 2017. 10
[32] The date of the golf day is unclear, however Mr Muirhead gave evidence that he had received an email from Riverside Oaks on 19 July 2016 (sometime after the event) containing an invoice seeking payment. He forwarded this for “processing” 11 to other members of his team including his manager.12
[33] On 25 July 2016 Mr Holloway sent Mr Muirhead an email enquiring as the whether the invoice had been put through MediusFlow, the accounting system used by PNRL. Mr Muirhead replied on the same day, stating “I am not sure to be honest. I have never had to use Medius Flow.”
[34] On 10 August 2016 Emma Gallagher of Riverside Oaks sent an email to Mr Muirhead chasing payment of the invoice for the day which was at that stage overdue. 13
[35] It is not clear whether Mr Muirhead sent any contemporaneous reply to Ms Gallagher’s email. The show cause letter issued to Mr Muirhead (discussed further below) refers to an email of 11 August 2016, however it is not contained in any material before me.
[36] Ms Gallagher sent a further email chasing the outstanding payment on 24 August 2016 at 11:40am. She stated that she understood the delay was not Mr Muirhead’s fault however indicated that the delay had “gone on too long”.
[37] At 11:41am on 24 August 2016 Mr Muirhead responded to Ms Gallagher’s email with the following:
“Hi Emma,
Thanks for reaching out again. I have cc’d in accounts, as this should have been paid months ago. This has already been approved from our end.
Thanks again,
Mark”
[38] Copied into this email were two members of the accounts department, as well as Mr Muirhead’s colleague Tori Moore and his manager, Mr Marrone.
[39] Shortly after Mr Muirhead sent this email, Tori Moore responded stating that Mr Muirhead would “get in trouble” for carbon copying accounts into his email, because she had.
[40] Mr Muirhead responded to this email from Ms Moore, stating:
“Unfortunately, I have been told by management to re-sign this deal for next year and lock it away. But without payment, they don’t want to.
They will have to see my management unfortunately, as that is the only reasonable way to sort this out. It should not be my job to chase payments for Eels events.”
[41] At 11:43am on 24 August 2016 Ms Corryn Sultana of the accounts department replied to Mr Muirhead’s email to Ms Gallagher (into which she had been copied) as follows:
“Hi Mark
I only received it back yesterday as approved and I will have it in the next pay run. We have not been sitting on this invoice on our end.
Thanks
Corryn”
[42] Mr Muirhead did not reply to that email. Instead, he forwarded it immediately to Ms Moore in an email which stated only “[a]pologies from accounts”.
[43] At some point shortly after these emails were sent (the precise date is unclear) Mr Muirhead was advised he was required to attend a meeting for disciplinary purposes on 1 September 2016 at 11:00am with Mr Dooley and Mr Marrone. Mr Muirhead says that he was taken by surprise at this request and was not informed what alleged misconduct the meeting related to. 14
[44] At the meeting on 1 September 2016 Mr Muirhead was provided with a show cause letter of the same date. This letter reads, relevantly, as follows:
“Following the disciplinary meeting held with you on 18th August 2016 and the subsequent Formal Warning which you received on 23rd August (see attached) we hereby advise that further evidence of serious misconduct has come to our attention, specifically:
On 11th August 2016 you sent an email to an external supplier, Emma Gallagher of Riverside Oaks, inappropriately apportioning the blame for the delay in payment of an invoice to two of your finance team colleagues, Linda Mittiga and Corryn Sultanta and, in so doing, impugning the reputation of your colleagues and the organisation
On 24th August the same supplier sent a follow up email in pursuit of the continuingly outstanding invoice to which you replied, ‘This has already been approved from our end’ and ‘…this should have been paid months ago’ - both of which were incorrect and misleading statements to the supplier aimed at once again apportioning the blame for this delay in payment to your finance colleagues and impugning their professionalism
Also on 24th August you shared you email communications with your colleague, Tori Moore in your team, who commented that you would ‘get in trouble’ for implicating your colleagues in this way to which you (again inaccurately) responded, “It should not be my job to chase payments for Eels events.”
Furthermore on 24th August you were advised by Corryn Sultana in finance that the outstanding invoice in question had only been approved on the system by your manager , Joseph Morrone [sic], on the day before, ie on 23rd August (see attached evidence) and that it would now be paid in the next pay run
You then proceeded to forward Corryn’s response on 24th August to your colleague Tori Moore with the comment ‘Apologies from accounts’. While the intent of this communication is not entirely clear it would appear that you continued to view the finance team as the ones at fault for the delay in payment (certainly not yourself or your department) showing disrespect for your colleagues who were attempting to provide efficient and timely service to you and you team
The behaviour described above, when coupled with the other recent incident which resulted in a formal warning, indicates an ongoing pattern of behaviour which frustrates the implied term of mutual trust and confidence between employer and employee…”
[45] The letter went on to require Mr Muirhead to show cause at a meeting the following day at 10:00am as to why his employment should not be terminated.
[46] Mr Muirhead attended the meeting the following day, again with Mr Marrone and Mr Dooley. At the commencement of the meeting he provided what he described in his statement as his “written responses to the allegations within the Show Cause Notice”. In this document 15 Mr Muirhead stated that he remained unaware of the correct process to be followed in relation to accounts and that the purpose of sending the email to Ms Gallagher stating that the account “should have been paid months ago” was “to save and preserve the valuable commercial relationship” between PNRL and Riverside Oaks. He stated he had copied others into the email to see whether the account “had been paid or not”. He disputed that his correspondence with Ms Moore amounted to misconduct.
[47] Mr Muirhead’s evidence in cross examination was that at this meeting he “refuted all claims” and that despite this, Mr Dooley did not find his explanations reasonable.
[48] Mr Marrone gave evidence that at the show cause meeting Mr Muirhead had agreed that the matter was a serious one. 16 This is not reflected in any of Mr Muirhead’s evidence, either at hearing or in any of the documents before me, including Mr Muirhead’s written response outlined at paragraph [46] above.
[49] A termination letter 2 September 2016 was provided to Mr Muirhead at the meeting.
[50] At the hearing there was considerable evidence given about Mr Muirhead’s training in the accounting system used by PNRL, the usual process for account processing and whose responsibility the payment of accounts ultimately was.
[51] Mr Muirhead gave evidence that it was his understanding that he was required to submit invoices that came in to other members of his team who would then input them into the accounting system, Medius Flow. Mr Muirhead stated he had never been trained in MediusFlow and had no knowledge of the system. He says that at the time he thought the hold up with payment of the invoice was with the accounts team, however he had subsequently come to understand that it was in fact a hold up within his own team.
[52] Mr Muirhead acknowledged that at no stage prior to sending the email to Ms Gallagher on 24 August 2016 did he seek to ascertain what the delay might be. 17 He did not apologise to the accounts team after being informed that the delay was not of their doing.18 In fact, overall Mr Muirhead denied his conduct in relation to his emails of 24 August 2016 was anything less than what might be expected of him.
[53] PNRL submitted that Mr Muirhead’s training or lack thereof in the Accounting system had no bearing on how he chose to manage communications internally and externally. PNRL submitted that regardless of his training, he was willing to, without making any enquiries, blame his colleagues for the delay in the payment of the invoice.
[54] I do not need to make findings regarding Mr Muirhead’s knowledge or lack thereof of the accounting system. This is because even if it is accepted Mr Muirhead had no knowledge of the process for payment of accounts, Mr Muirhead’s behaviour in attempting to resolve the issue was inappropriate. It is clear that Mr Muirhead sent an email to an external supplier implicating his colleagues and in doing so engaged in unprofessional blame shifting. Further, when he was informed by the accounts department that they had only just received the invoice to process, rather than acknowledging this he (quite clearly sarcastically) commented to his colleague that this constituted an “apology”.
[55] Thus I find that with the exception of the reference to the email of 11 August 2016 (of which no evidence was adduced) Mr Muirhead’s conduct in relation to dealing with the unpaid invoice did occur and constituted a valid reason for his dismissal. PNRL’s conclusion that Mr Muirhead’s conduct was unprofessional constitutes a valid reason that is sound, defensible and well founded.
Confidential Client Documents
[56] Subsequent to Mr Muirhead’s termination PNRL discovered that between the first disciplinary meeting on 1 September 2016 and the meeting the following day, Mr Muirhead had attempted to email a client proposal to his private email.
[57] It is clear that facts which existed at the time of dismissal, but which are only discovered after the employee has been dismissed may be considered in determining whether the dismissal was harsh, unjust or unreasonable. 19
[58] Mr Muirhead freely acknowledged that he had attempted to send himself the client proposal shortly after the meeting on 1 September 2016. 20 He says that he did “not believe” the email was actually received in his private account and assumed the reason for this was that the attachment was too large.21 Accordingly it is not in dispute that the conduct (attempting to send the email) occurred.
[59] However Mr Muirhead gave evidence that he regularly worked from home on projects and that he often emailed work to himself to facilitate this. When Mr Muirhead was asked by Mr Dooley at the hearing why he had attempted to email the document to himself, Mr Muirhead stated “Even if I was going to get fired, I wasn’t going to make the Eels lose probably one of the biggest deals in the NRL.”
[60] Mr Muirhead acknowledges that he thought he was going to be dismissed at the time he sent himself the client proposal.
[61] PNRL submitted that Mr Muirhead’s attempt “to abscond with confidential and commercially sensitive documentation during the disciplinary process strongly supports and confirms the validity of the decision” to terminate his employment.
[62] Mr Muirhead gave uncontested evidence that it was his normal practice to send such documents to his personal email in order to work on them. Further it is not suggested that Mr Muirhead was given any instructions at the meeting on 1 September 2016 to the effect that he should not complete work or make contacts with clients.
[63] I accept that Mr Muirhead attempted to forward this file to his personal email however the characterisation of the intent ascribed by PNRL is not supported by the evidence on the balance of probabilities.
[64] I do not consider this conduct constituted a valid reason for dismissal.
Other reasons
[65] Both in submissions and in evidence at hearing PNRL raised numerous examples of what they considered to be dishonesty and poor attitude on the part of Mr Muirhead. However none of these instances were raised or relied on by PNRL in dismissing Mr Muirhead. I have not considered these factors when determining whether a valid reason existed when PNRL dismissed Mr Muirhead.
[66] As noted above, Mr Muirhead was required to attend the meeting on 1 September 2016, without being informed prior to the meeting of what the reason for holding it was. However Mr Muirhead accepted that at the meeting his conduct in relation to sending the emails regarding the outstanding invoice from Riverside Oaks was discussed. Mr Muirhead also accepts he was handed the show cause letter set out above which clearly sets out the concerns held by PNRL.
[67] I find that Mr Muirhead was notified of the valid reasons for his dismissal on 1 September 2016, prior to his dismissal on 2 September 2016.
[68] On the face of the evidence, it is clear that Mr Muirhead had an opportunity to respond to the reasons he was given at the meeting on 1 September 2016. At the conclusion of the meeting he was told by Mr Dooley to take the remainder of the day off and to return for a meeting the following morning at 11:00am.
[69] An opportunity to respond must be one that provides an opportunity that might result in the employer deciding not to terminate the employment. It is not enough for an employer to simply go through the motions if a firm decision to terminate has already been made. 22
[70] Mr Muirhead says that he believed his employment would be terminated after the meeting on 1 September 2016. As discussed at paragraph [46], Mr Muirhead provided Mr Dooley with his written responses to the show cause letter at the meeting on 2 September 2016. However Mr Muirhead said that Mr Dooley “appeared to disregard everything” that Mr Muirhead had said and was unwilling to “engage in any meaningful or productive conversation” with him. 23
[71] It is clear from that document that Mr Muirhead disputed any wrongdoing whatsoever on his behalf.
[72] Mr Muirhead also says that the decision to terminate his employment prior to the meeting on 2 September 2016 is evidenced by the fact that a letter of termination had been prepared prior to the meeting. Mr Marrone confirmed that the letter was indeed pre-prepared. 24
[73] I consider it is normal practice for an employer to come to a possible termination meeting with a pre-prepared letter of termination. The alternative is that if the decision is then taken to dismiss the employee, the employee would then need to wait for written confirmation of that decision to be prepared. In my opinion that would be unusual for a large employer with a human resource function.
[74] Mr Muirhead did not come to the meeting on 2 September 2016 prepared to offer any sort of apology or concede any shortcomings in his conduct. This likely explains why he found Mr Dooley unwilling to engage in “meaningful” conversation. I am satisfied that Mr Muirhead made the decision to terminate Mr Muirhead during the meeting having considered Mr Muirhead’s response.
[75] I am satisfied that Mr Muirhead was given the opportunity to respond to the reasons for dismissal.
[76] It is agreed between the parties that Mr Muirhead was invited to, and did, bring his colleague Tori Moore with him as a support person to the show cause meeting on 1 September 2016 25 and to the meeting the following day.26
[77] Accordingly I find there was no refusal by PNRL to allow Mr Muirhead to have a support person present at any discussions related to his dismissal.
[78] Where an employee has been dismissed for unsatisfactory performance it will be necessary for the Commission to consider whether the employee had been warned about their poor performance prior to the dismissal.
[79] However unsatisfactory performance of an employee usually relates to questions of capacity rather than conduct. 27 Although there was evidentially substantial disagreement between the parties on the question of Mr Muirhead’s performance, ultimately Mr Muirhead was not dismissed on the basis of unsatisfactory performance, but rather because of conduct related issues. Accordingly, I do not consider this factor is relevant.
[80] This factor is more appropriately considered when an employer is small and there is an absence of rigor in the dismissal process. Sometimes the absence of due process can reasonably be explained by the employer’s ignorance of its importance or their inability to take time away from core business activity at the time of effecting the dismissal. The factor will always be weighed against the whole circumstance of the dismissal. PNRL is a relatively large employer with approximately 250 employees. I have not identified any procedural deficiencies in Mr Muirhead’s dismissal. Therefore I do not consider this factor is relevant.
[81] Mr Muirhead’s dismissal was managed by Mr Dooley, Corporate Services Manager for human resources, payroll and IT. As may be expected of an employer the size of PNRL there was no absence of a human resource specialist that impacted on the procedures followed in effecting Mr Muirhead’s dismissal.
PNRL accorded Mr Muirhead procedural fairness throughout the process of dismissal. None of the factors above weigh in favour of Mr Muirhead’s dismissal being considered unfair.
[82] Subsection 387(h) of the Act is broad and enables the Commission to consider any other matters it considers relevant.
[83] It is clear that even in matters where a valid reason for an employee’s dismissal is found, the dismissal may still be found to be harsh, unjust or unreasonable. 28 In B, C and D v Australian Postal Corporation T/A Australia Post the Full Bench majority stated the following:29
“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”.
[84] In Byrne v Australian Airlines Ltd 30 their Honours McHugh and Gummow JJ considered the concepts of “harsh, unjust or unreasonable”. They stated that a termination:
“may be harsh in its consequences for the personal and economic situation of employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[85] In this case I consider that there are two relevant matters that lead to the conclusion that Mr Muirhead’s dismissal was “harsh” in both the ways contemplated by McHugh and Gummow JJ in Byrne v Australian Airlines.
[86] The first relevant factor is the gravity of Mr Muirhead’s misconduct in light of fact that he was summarily dismissed. In Potter v WorkCover Corporation 31 a Full Bench of the Australian Industrial Relations Commission stated:
“If summary dismissal was disproportionate to the misconduct that would support a conclusion that the termination was harsh, despite the existence of a “valid reason” for termination.”
[87] I consider that Mr Muirhead’s conduct in sending the email of the 17 August 2016 to Mr Basan was at the lower end of the scale of seriousness of misconduct. I find the email was certainly inappropriate and Mr Muirhead, by his own admission, made an error of judgment in sending it. However I accept Mr Muirhead was disgruntled at a request which he considered added insult to injury in the context of the changing of entitlements in relation to the employee lunch allowance. I also note that Mr Muirhead’s response to Mr Basan’s email was sent only 3 minutes after the email from Mr Basan was received. It seems likely Mr Muirhead responded in the heat of the moment.
[88] I also consider that Mr Muirhead’s conduct on 24 August 2016 was at the lower end of the scale of seriousness. In particular I find the following:
(a) the email Mr Muirhead sent to Emma Gallagher on 24 August 2016, copying in the accounts department and stating the account should have been paid “months ago” was an inappropriate email to send in the circumstances. Mr Muirhead’s protests that he was not familiar with the accounting system miss the point; I accept it was not appropriate for Mr Muirhead to approach the problem in a manner which rudely and incorrectly shifted blame to other colleagues without attempting to solve the problem by any other means (by, most obviously perhaps, calling the accounts department to speak with them about why the account may not have been processed). However I accept Mr Muirhead was also trying to fix the problem after being followed up by the supplier on more than one occasion. I also accept Mr Muirhead’s evidence that at the time he believed non-payment of the invoice may have affected arranging the same profitable event with Riverside Oaks the following year. 32
(b) The email Mr Muirhead sent to Tori Moore stating that it should not be his job “to chase up payments for Eels events” reflects Mr Muirhead’s belief that his role in business development did not include accounts. 33 The evidence indicates however that the problem could have been solved if Mr Muirhead had taken a different approach with a more team oriented attitude. However this cannot, in my view, be characterised as serious misconduct.
(c) The email Mr Muirhead forwarded to Tori Moore with the comment “apologies from accounts” was a sarcastic comment about what Mr Muirhead perceived to be a failure of the accounts department. In his evidence Mr Marrone indicated that the delay had been the fault of another member of Mr Muirhead’s team 34 who had not processed the account. The email sent by Ms Sultana that was the subject of Mr Muirhead’s comment should have squarely raised the possibility in his mind that the delay was not the fault of the accounts department. Mr Muirhead’s sarcastic comment in the email to Ms Moore indicates his unpreparedness to acknowledge his mistake by suggesting the accounts department had not offered him an apology. Again, I consider this conduct to be indicative of a poor attitude rather than serious misconduct.
[89] Overall I consider the conduct that formed the valid reason for Mr PNRL’s dismissal of Mr Muirhead is most accurately described as a poor attitude and a failure to be a team player, not serious misconduct warranting summary dismissal. I therefore consider PNRL’s summary dismissal of Mr Muirhead was disproportionate to his misconduct and this weighs in favour of the dismissal being considered harsh.
[90] The second relevant factor is the personal and economic consequences for Mr Muirhead. Mr Muirhead was summarily dismissed by PNRL on 2 September 2016 and did not gain employment again until 3 November 2016. Mr Muirhead says he earns a salary of $55,000.00 per annum, less that he earned at PNRL. Mr Muirhead says that his new role is a phone based sales role and he considered this a “step back” in his career. Although it was not clear whether Mr Muirhead’s new role is a contract based role rather than a full time position, he gave evidence that as the job related to a sporting event in October 2017, he could only be in the role until that time.
[91] Although Mr Muirhead’s dismissal has not caused him significant negative economic consequences, I find that Mr Muirhead is in a worse economic position than he was when he was employed at PNRL and his career prospects are damaged.
[92] It is unfortunate Mr Muirhead remains almost entirely unapologetic in relation to his misconduct, particularly the emails and conduct of 24 August 2016. It is clear that he was unapologetic at the time the decision was taken to dismiss him on 2 September 2016. At that stage PNRL were faced with an employee who appeared to resist any suggestion his behaviour may have fallen short of the standard expected. This factor weighs against a finding that Mr Muirhead’s dismissal was harsh but does not overcome the disproportionality of PNRL’s response to his conduct.
[93] I have found that PNRL had valid reason to dismiss Mr Muirhead. I have also found that Mr Muirhead was afforded procedural fairness throughout the process of dismissal. However I have found that Mr Muirhead’s dismissal was disproportionate to his conduct. It also had quite negative economic and personal consequences. These factors weigh in favour of the dismissal being considered harsh, but not unjust or unreasonable. I find that PNRL’s dismissal of Mr Muirhead was harsh and therefore unfair.
[94] Whilst reinstatement is the primary remedy under the Act 35 I note Mr Muirhead does not seek reinstatement and PNRL argue against reinstatement. Mr Gorval submitted that Mr Muirhead has found alternative employment and that the evidence given indicated that the relationship between the parties had broken down. PNRL concurred with this view and indicated that it would be “uncomfortable” for Mr Muirhead to re-enter the workplace.
[95] I consider that it is appropriate in all the circumstances of the case for me to make an award of compensation to Mr Muirhead. 36
[96] I note that Mr Muirhead submits that an award of compensation should recognise a bonus payment he says he is owed and compensation in relation to the change in meal allowance. However those issues are contractual disputes and do not relate to Mr Muirhead’s dismissal. It is not within the scope of the powers of the Commission to address them in considering the appropriate remedy for Mr Muirhead’s unfair dismissal.
[97] I will now calculate the amount of compensation to be paid to Mr Muirhead based on the criteria contained in the s.392 of the Act and the contemporary application of the Sprigg formula. 37
[98] PNRL is a large professional sporting club carrying on a substantial business. There is no evidence indicating an order for compensation of the amount proposed will affect the viability of the business.
[99] Mr Muirhead was employed by PNRL for just under 1 year. I have calculated an amount of compensation to be paid to Mr Muirhead based on the criteria contained in the Act and the contemporary application of the Sprigg formula. I consider that Mr Muirhead’s length of service should not affect the amount of compensation to be ordered.
[100] Mr Muirhead’s salary at the time of his dismissal was $61,200.00 gross per annum plus superannuation.
[101] I find that Mr Muirhead would have likely continued in his employment with PNRL for a period of no more than 6 months. In reaching this conclusion I have had regard to Mr Muirhead’s general attitude and lack of insight into what constitutes appropriate behaviour in the workplace. Notwithstanding the dispute about Mr Muirhead’s financial performance, the evidence adduced by PNRL indicates that overall Mr Muirhead had a lack of insight into the team oriented nature of the business.
[102] The amount Mr Muirhead would have received is therefore a total of $30,600 plus superannuation.
[103] Mr Muirhead says that between the date of his dismissal and the commencement of his new job on 3 November 2016 he was actively seeking employment.
[104] I accept this evidence and find that Mr Muirhead has taken reasonable steps to mitigate the loss he suffered as a result of his dismissal.
[105] Mr Muirhead secured a job on 3 November 2016. As noted above, his salary in this role is $55,000.00 gross per annum plus superannuation.
[106] Mr Muirhead earned no income from 2 September 2016 to 3 November 2016, a period of approximately 9 weeks. From the date of his employment in his new job to the date of hearing, a period of approximately 7 weeks, he earned $7,403.85 plus superannuation. I will deduct this amount from the amount he would have earned had he remained in employment with PNRL.
[107] Mr Muirhead is likely to earn $ 10,576.92 plus superannuation for the balance of the six month period (approximately 10 weeks) that I have estimated he would have remained at PNRL.
[108] I will also deduct this amount from the amount above.
[109] No payment in lieu of notice was made to Mr Muirhead. I make no further change to the amount of compensation for contingencies.
[110] I have found that Mr Muirhead’s misconduct contributed to his dismissal and accordingly I have decided to reduce the amount of compensation awarded.
[111] I found that Mr Muirhead’s misconduct was at the lower end of the scale of seriousness. Accordingly, I reduce Mr Muirhead’s compensation by 25%.
[112] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.
[113] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by Mr Muirhead, or to which Mr Muirhead was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.
[114] The amount Mr Muirhead would have earned, or to which Mr Muirhead was entitled, for the 26 week period immediately prior to the dismissal was $30,600.00 exclusive of superannuation contributions.
[115] The amount of compensation I will order does not exceed the compensation cap.
[116] In calculating the compensation I have deducted from the remuneration Mr Muirhead would have received over six months $7,403.85, the amount of earned between his dismissal and the date of the hearing. I have also deducted $ 10,576.92 the amount likely to be earned by Mr Muirhead from the date of hearing to the end of six months from dismissal. This leaves a total of $12,619.23. From that amount I have deducted $3,154.81 to reflect the 25% deduction in relation to misconduct. This leaves a total of $9,464.42.
[117] I order that PNRL pay Mr Muirhead $9,464.42 before tax, plus superannuation in compensation.
DEPUTY PRESIDENT
Appearances:
Mr Serge Gorval, Gorval & Lynch, for the Applicant
Mr Damian Dooley for the Respondent
Hearing details:
21 December 2016, Sydney
1 Edwards v Giudice (1999) 94 FCR 561 [6]‒[7]. See also Rail Corporation New South Wales v Vrettos (2008) 176 IR 129 [27]; Container Terminals Australia Ltd v Toby (AIRCFB, Boulton J, Marsh SDP, Jones C, 24 July 2000) Print S8434 [13]
2 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 (Hatcher VP, Hamberger SDP, Roberts C, 27 February 2015) at [32]-[34]
3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
4 Ibid
5 Miller v University of New South Wales (2003) 132 FCR 147 [13]
6 Parmalat Food Products Pty Ltd v Christopher Tran [2016] FWCFB 1199 (Watson VP, Hamilton DP and Johns C, 29 March 2016) at [3]
7 Attachment B to respondent’s reply
8 Transcript PN 201 and 202
9 Transcript PN 121
10 Transcript PN 181, PN 257
11 Transcript PN 245 - PN 246
12 Transcript PN 124
13 Respondent’s form F3, attachment B
14 Exhibit G1, Witness statement of Mark Muirhead, paragraph 23
15 Exhibit G1, Witness statement of Mark Muirhead, Annexure H
16 Transcript PN 600
17 Transcript PN 267
18 Transcript PN 269
19 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378
20 Transcript PN 388
21 Transcript PN 487
22 Wadey v YMCA Canberra [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty (2010) 204 IR 399 [85]
23 Exhibit G1, Witness statement of Mark Muirhead, paragraphs 33 and 34
24 Transcript PN 733
25 Transcript PN 381 - PN 384
26 Exhibit G1, Witness statement of Mark Muirhead, paragraph 31
27 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237 [16]
28 B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 (Lawler VP, SDP Hamberger, Cribb C, 28 August 2013)
29 Ibid, at [41]
30 185 CLR 410 at 465
31 (2004) 133 IR 458, 473 [55]
32 Transcript PN 485
33 Transcript PN 485
34 Transcript PN 684
35 s.390(3)(a) Fair Work Act 2009
36 s.390(3)(b) Fair Work Act 2009
37 Sprigg v Paul’s Licensed Festival Supermarkets (1998) 88 IR 21; Bowden v Ottray Homes Cobram and District Retirement Villages Inc T/A Ottray Lodge [2013] FWCFB 431; McCulloch v Calvary Health Care Adelaide [2015] FWCFB 2267
Printed by authority of the Commonwealth Government Printer
<Price code C, PR589344>