| [2017] FWC 537 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Glenn Rogers
v
Allianz Insurance Australia T/A Club Marine Insurance
(U2016/10505)
COMMISSIONER ROE |
MELBOURNE, 30 JANUARY 2017 |
Application for relief from unfair dismissal.
[1] Mr Rogers was employed by Allianz Australia Services Pty Ltd (Allianz) as National Business Development Manager of Club Marine Limited, the boating insurance branch of Allianz. The Respondent is a subsidiary of Allianz Australia Limited. Mr Rogers was employed from 4 January 2016 until his dismissal on 8 August 2016. It is accepted that: Allianz is a national system employer; Mr Rogers earned less than the high income threshold; has the minimum employment period for protection from unfair dismissal; was not dismissed for reasons of redundancy; and made his application within time. The issue to be determined is whether or not the dismissal for misconduct was unfair.
[2] Allianz does not rely on any issues concerning Mr Rogers’ performance. There are two matters which Allianz says provide a valid reason for dismissal:
a. Mr Rogers’ conduct at a company team building event at the Sandringham Yacht Club on 8 July 2016. It is alleged that Mr Rogers become aggressive towards a female colleague, Ms Clayton, at the bar, to the point that other colleagues became uncomfortable and a colleague intervened to warn Mr Rogers that his conduct was inappropriate. It is also alleged that in a taxi upon leaving the Yacht Club Mr Rogers said to a colleague, Ms Farrelly, that she should “be quiet or I’ll touch your vagina like everyone else has done tonight.” Mr Rogers admits he made the comment to Ms Farrelly but denies that he otherwise acted aggressively or inappropriately.
b. After the dismissal Allianz says that it became aware that Mr Rogers misused his position with the company to obtain personal benefits from suppliers and associated companies in the form of holidays, use of cars, purchases of clothes etc.
[3] Mr Rogers says in respect to the allegation concerning the comment made to Ms Farrelly that:
“I did make a sexually suggestive comment which was in direct relation to one colleague touching another colleagues vagina. The female colleague seems to take little objection to the physical assault and I was simply making reference to that incident.”
[4] The minutes of the meeting that led to the termination state that Mr Rogers said that he had heard one colleague say to another colleague in the evening “OMG you just touched my vagina” and laughed. Mr Rogers stood by this account during the hearing.
[5] Mr Rogers submits that Allianz gave inadequate consideration to the context within which the comment was made. There is considerable conflict between the parties about the context.
[6] Mr Rogers gave evidence in respect to the alleged misuse of his position. He says that in about June he had arranged approved annual leave for an overseas trip later in 2016. A friend was to accompany him. As he intended to go overseas he asked his manager, Mr Beattie, if he would be interested in him researching particular stories whilst overseas. It is agreed that Mr Beattie said that there was no interest in the stories at this stage. Mr Rogers then proceeded to seek to make arrangements with a number of third parties for the provision of services such as business class airfares for his overseas trip and for accommodation in return for promised editorial space in the magazine. Mr Rogers did not advise Mr Beattie of these approaches despite Mr Beattie having earlier instructed Mr Rogers to copy him into such correspondence and to not promise editorial space without his approval.
[7] Mr Rogers also says in respect to the alleged misuse of his position that seeking to make such arrangements with suppliers and associated companies was a central part of his job, that the arrangements were also designed to generate advertising income for the company consistent with his role, that the arrangements were similar to those commonly entered into by other managers and to arrangements he had been asked to facilitate for other managers. However, there is no suggestion that any of these other arrangements related to periods of annual leave or that they were arranged without authorisation. Mr Rogers denies that his actions were in breach of Allianz’s code of ethics. He says that the goods and services for his personal benefit were not ever actually received because the dismissal of his employment intervened.
[8] Allianz sought to introduce further evidence or examples in respect to this matter the day before the proceedings. I refused to admit the further evidence. I considered that to do so would be unfair to Mr Rogers given that the material resulted from email searches which could have been done earlier.
[9] In deciding whether or not the dismissal was unfair I am required to consider the following:
“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.”
[10] At the start of the proceedings the parties agreed with my preliminary assessment as follows:
● Section 387(a): Valid reason is in dispute.
● Section 387(b): Satisfied by Allianz in respect to the first allegation but not the second. Mr Rogers was advised of the reason concerning the events on 8 July 2016.
● Section 387(c): Satisfied by Allianz in respect to the first allegation but not the second. Mr Rogers had an opportunity to respond to the reasons given concerning the events of 8 July 2016.
● Section 387(d): There was no unreasonable refusal of a support person.
● Section 387(e): Not relevant as there is no issue raised concerning performance.
● Section 387 (f) and (g): Not relevant due to the size of the enterprise and its HR resources.
[11] In respect to (h) other matters there were four issues raised by Mr Rogers. Firstly, the allegation that he was the subject of bullying. Secondly, in respect to the allegations concerning the emails discovered post dismissal that he was not being treated consistently because similar conduct by others was condoned. Thirdly, that the response to the 8 July incidents was disproportionate. Fourthly, that the dismissal process was unfair because of the lack of time between him being notified and the meeting when he had to answer the charges.
[12] Mr Rogers says that he made the comment in the members bar. Both parties agree that six or seven colleagues had joined Mr Rogers in the members bar from about 9pm until 11.30pm. The identity of the six colleagues is agreed. One witness believes that a seventh person was present for a short time. The other colleagues do not recall that person being present. I do not consider that this is a conflict of evidence. Allianz had questioned four of the persons present as part of the process leading to the dismissal. The other two persons present were required to give evidence in response to a summons requested by Mr Rogers. All six persons gave evidence in the proceedings. The members bar is next door to the Olympic Room where the earlier part of the event had been held. The general public does not have open access to these areas. Club Marine has corporate membership of the Sandringham Yacht Club.
[13] Mr Rogers says that the sequence of events was:
a. Mr Powell leans over Ms Farrelly and Ms Farrelly says “OMG you just touched my vagina” and laughed. Under cross examination Mr Rogers said that Ms Farrelly appeared to find Mr Powell’s actions “amusing and titillating”.
b. There is then a conversation between Mr Rogers and Ms Farrelly about how Mr Rogers is currently single. Ms Farrelly suggests that Mr Rogers should consider seeking a relationship with another colleague. Mr Rogers is not attracted to this proposition as he does not get on with that colleague and so in response he says “be quiet or I’ll touch your vagina like everyone else has done tonight.”
c. Ms Farrelly takes offence at the remark. Mr Rogers says that he was surprised that she took offence and that he has been taken aback at the extreme nature of Ms Farrelly’s response. He says that he does not regret making the remark.
d. Shortly after this event whilst still in the members bar Mr Rogers and Ms Farrelly have an extensive conversation about work matters. Mr Rogers is critical of some aspects of the work of the magazine and how it is managed. Mr Farrelly defends the organisation. Mr Rogers says that his was constructive criticism.
e. The members bar closes at about 11.30pm. Some members of the group, Mr Powell, Ms Farrelly, Mr Leaper and Ms Clayton, decide that they want to go to another venue in Brighton for further drinks. This group get in a taxi. Ms Farrelly gets out of the taxi and goes to join Mr Rogers. Ms Farrelly invites Mr Rogers to join the group. Ms Farrelly and Mr Rogers get into a second taxi.
f. Mr Rogers says that he was in the front seat and that Ms Farrelly was in the back. Mr Rogers says that he never said that he was going to the club and that he had decided that he would go home. Mr Leaper got out of the first taxi some way down the one way road out of the Yacht Club and waited for the second taxi which stopped and he joined Mr Rogers and Ms Farrelly.
g. Mr Rogers says that the conversation about work matters between himself and Ms Farrelly continued in the taxi. Mr Rogers says that he does not recall Mr Leaper telling Mr Rogers that he was not welcome and that he should go home when they reached the Brighton venue.
h. Mr Rogers says that he did not go into the Brighton venue when they arrived but left and went home.
[14] Allianz says that the sequence of events was:
a. During the evening Mr Rogers expressed his frustration at the lack of support from his colleagues and also expressed criticism of the Club Marine magazine and of the way in which it was managed. Mr Rogers became increasingly loud and aggressive.
b. Mr Rogers told Ms Clayton to shut up and pointed at her aggressively. Mr Powell intervened and told Mr Rogers that this was a work function and that he should calm down.
c. The members bar closes at about 11.30pm. Some members of the group, Mr Powell, Ms Farrelly, Mr Leaper and Ms Clayton, decide that they want to go to another venue in Brighton for further drinks. This group get in a taxi. Ms Farrelly is concerned that Mr Rogers may be being isolated or left out so she gets out of the taxi and goes to join Mr Rogers. Ms Farrelly invites Mr Rogers to join the group. Ms Farrelly and Mr Rogers get into a second taxi at a point close to the Sandringham Yacht Club entrance.
d. Mr Rogers and Ms Farrelly were in the back seat of the taxi. Mr Leaper tells his colleagues in the other taxi that he is concerned to leave Ms Farrelly alone with Mr Rogers so he gets out of his taxi. Mr Leaper got out of the first taxi at the top of the one way road out of the Yacht Club and waited nearby for the second taxi which stopped and he joined Mr Rogers and Ms Farrelly. Mr Leaper got in the front seat.
e. Ms Farrelly gives evidence that during the taxi journey Mr Rogers was criticising some work matters regarding the magazine and Ms Farrelly defended the magazine. She says that Mr Rogers cut her off any made the offensive comment. Ms Farrelly says that she “felt very disrespected and degraded by his comment.”
f. Ms Farrelly says that she complained about Mr Rogers’ actions and Mr Rogers defended his actions with words to the effect that “Billy [Powell] talks to you like that.” She denied that this was the case.
g. Upon arrival at the Brighton venue Ms Farrelly again told Mr Rogers that his behaviour was unacceptable and Mr Leaper told Mr Rogers that he was not welcome and that he should go home. Ms Farrelly told the other colleagues in the bar about what Mr Rogers had said to her. Mr Rogers went home.
h. Ms Farrelly says that she remained upset about the incident for several weeks and avoided close contact with Mr Rogers. Eventually she decided to report the matter to her manager. This took several weeks as her manager was away at the time.
[15] There are some key points of consistency in the evidence:
● Mr Rogers made the offensive comment to Ms Farrelly.
● Ms Farrelly did not say anything aggressive, critical or offensive to Mr Rogers.
● Ms Farrelly was upset and offended by the comment and made this clear to Mr Rogers. Mr Rogers acknowledged that Ms Farrelly remained uncomfortable and aloof from him several weeks later at the Sydney Boat Show.
● Mr Rogers never apologised for the comment and still does not regret his actions.
[16] There are some key points of conflict between the evidence of Mr Rogers and the other persons who were present:
● Ms Farrelly, Ms Clayton, Mr Powell, Mr Leaper, Ms Lovett and Ms McKerlie were present in the members bar and none of them heard or observed any unusual interaction between Mr Powell and Ms Farrelly. Ms Farrelly gave evidence that she did not recall any incident involving Mr Powell and herself whilst the group was in the members bar at the Sandringham Yacht Club.
● Mr Powell, Ms Farrelly and Ms Clayton gave evidence that Mr Rogers shouted at Ms Clayton. Ms Farrelly observed some tension between Mr Rogers and Ms Clayton and Mr Rogers loudly telling Ms Clayton to shut up. Ms Lovett gave evidence that Mr Rogers had made a loud and emotional outburst but did not observe any confrontation between Ms Clayton and Mr Rogers. Ms McKerlie had an interaction with Mr Rogers which she found unsatisfactory but did not observe any confrontation between Mr Rogers and others in the members bar. Mr Leaper considered Mr Rogers’ behaviour in the members bar to be unpleasant, aggressive and opinionated but he did not report any particular confrontation between Ms Clayton and Mr Rogers.
● Mr Leaper and Ms Farrelly gave direct evidence that Mr Rogers made the offensive comment to Ms Farrelly in the taxi. Ms Clayton and Mr Powell say that Ms Farrelly reported the incident and was very upset immediately after she arrived at the Brighton bar after they had all left the members bar.
● Mr Leaper and Ms Farrelly say that Mr Rogers and Ms Farrelly were together in the back seat of the taxi.
[17] In respect to each of these points I reject the evidence of Mr Rogers:
● I am not satisfied that Mr Powell touched Ms Farrelly or that Ms Farrelly made the remark in response that Mr Rogers alleges. I am satisfied that if the incident had been observed it is likely that it would have been remembered particularly by Ms Farrelly and Mr Powell. If it is true that Mr Powell touched Ms Farrelly then I am satisfied that it must have been accidental. If it had been anything but accidental then I am sure that Ms Farrelly and Mr Powell would have recalled it. In any case it is totally inappropriate to assume that because a person allows one person to touch them that this means that it is OK for others to touch them. The contrary attitude is a consistent theme in historical violence and discrimination against women.
● I am satisfied that Mr Rogers was aggressive at times when he was in the members bar. This did not occur throughout the period and it was not particularly dramatic otherwise it would have been observed by the whole group. However, I accept the evidence of Ms Clayton and Mr Powell that Mr Rogers was aggressive towards Ms Clayton.
● I am satisfied that Mr Rogers made the offensive comment to Ms Farrelly in the taxi and that they were in the back seat together. If the comment had been made in the members bar I consider it most unlikely that Ms Farrelly would have continued with an extensive work discussion with Ms Farrelly shortly after as alleged by Mr Rogers. I also consider it most unlikely that the others present would not have been aware given how upset Ms Farrelly was at the remark. I found Ms Clayton and Ms Farrelly to be particularly convincing witnesses and I am satisfied that they were both genuinely and deeply shocked and offended by Mr Rogers’ behaviour.
[18] There are some points of inconsistency in the evidence of Mr Powell, Ms Farrelly, Ms Clayton and Mr Leaper:
● There are some inconsistencies in the evidence about the exact location near the Sandringham Yacht Club that Mr Rogers and Ms Farrelly got into the taxi.
● There are some inconsistencies in the evidence about the exact location on the one way road between Sandringham Yacht Club and the main road when Mr Leaper got in the taxi with Mr Rogers and Ms Farrelly
● Ms Farrelly says that she had a brief conversation with Mr Rogers inside the Brighton bar. None of the other witnesses saw Mr Rogers go into the Brighton bar.
[19] I am not satisfied that there is any significance in these minor points of inconsistency. It is totally understandable that Ms Farrelly who was upset and shocked at the time may have been confused about the location where the final conversation of the evening between herself and Mr Rogers occurred. It is also understandable that there may be different recollections about exactly where passengers entered and left the taxis.
[20] Mr Rogers raised doubts about the extent to which Ms Farrelly and Allianz were genuinely concerned about the offensive remark he made to Ms Farrelly. He pointed to the fact that after Mr McLean and Ms Te Maipi became aware of the incident in late July they allowed Mr Rogers to continue working for a week before calling him to a meeting and dismissing him. He also pointed to the fact that Mr Rogers was invited to participate in events including with Ms Farrelly at the Sydney Boat Show after Mr McLean was aware of the complaint. He pointed to the fact that Ms Farrelly was in a small group that had a drink with him one evening at the hotel where they were staying for the Sydney Boat Show. Ms Farrelly gave evidence, which I accept, that she felt very uncomfortable in Mr Rogers’ presence during this period, that she had minimal interaction with him and that she was acting professionally in the interests of the company. On one occasion after the incident Mr Rogers had to collect merchandise for use at the boat show with Ms Farrelly. Another colleague was present at the time. Mr McLean gave evidence, which I accept, that he did not consider it appropriate to take action against Mr Rogers until he had investigated further by talking to some others who had been involved in the incident and consulting with human resources managers in Allianz.
[21] Simon McLean, CEO of Club Marine, gives evidence that he first became aware of the issue concerning the 8 July events on 28 July 2016. He was told about them by Ms Te Maipi. He then raised it with Ms Farrelly within the next day. He also spoke to Mr Leaper who was in the taxi with Mr Rogers and Ms Farrelly. The matter was discussed further internally on 2 and 4 August 2016. Ms Thomas prepared a notice of meeting as requested by Mr McLean on 4 August 2016. A meeting was arranged for the following Monday, 8 August 2016 when Mr McLean proposed the notice would be given.
[22] Mr Rogers was asked to attend a sales meeting at 8.30am or 9am on Monday 8 August. Allianz says that it was at 8.30am and Mr Rogers says that it was at 9am but I do not consider that anything turns on this. At that time he was issued with the notice of meeting. That notice sets out the allegations concerning the 8 July 2016 events and asks Mr Rogers to respond at a meeting to be held at 10am. The notice provides the opportunity for a support person to be present at the meeting. The notice also says that termination of employment is a possible outcome of the meeting.
[23] Mr Rogers says, and I accept, that he wanted Mr Blatchford, a person not employed by Allianz, to be his support person but Mr Blatchford was unable to attend at such short notice. Mr Rogers did not request that the meeting be delayed to enable his chosen support person to be present. The meeting proceeded without a support person. Mr Rogers suggested that the meeting commence prior to the scheduled time of 10am and the company agreed to this. Mr Rogers says that he explained that this was because he was unable to obtain a support person in the time available whilst the Allianz witnesses deny that this was said by Mr Rogers. Mr Rogers says that he was new to Melbourne and hence there was no family member or suitable work colleague available as a support person. I prefer Mr Rogers’ evidence on this point but I am satisfied that it was Mr Rogers’ decision to proceed earlier without a support person and not to request an adjournment until a support person could attend. This is reinforced by the uncontested fact that Allianz specifically told Mr Rogers that he could have a support person when they invited him to the meeting.
[24] The first copy of the notice of meeting was dated 4 August 2016 and then it was replaced with a notice dated 8 August 2016. Mr Rogers says that this shows that Allianz could have raised the matter with him earlier.
[25] At the meeting Mr Rogers admitted to the comment made to Ms Farrelly but provided some explanation concerning the context. He denied the other allegations.
[26] At the end of the meeting management left for about 10 minutes and discussed Mr Rogers’ responses. They returned and advised Mr Rogers that he was dismissed and he was then sent a termination letter. The termination letter repeats the allegations in the notice of meeting and summarises Mr Rogers’ response and advises that his employment is terminated with payment of one week in lieu of notice.
[27] It is not in dispute that Mr Rogers was:
● Informed of the 8 July conduct which was the central reason for the dismissal.
● He was provided with advance notice of a meeting to discuss the allegation.
● He had the opportunity to respond to the allegation.
● He was informed that his employment was at risk.
● He was not prevented from having a support person.
● The decision to terminate his employment was made after the employer had provided Mr Rogers with the opportunity to respond to the allegation.
[28] In some circumstances the short notice of the meeting may be a factor (under Section 387(h)) which suggests that the process was procedurally unfair. This is particularly the case when the factual matters relied upon by the employer are voluminous or complex. I am not satisfied that there was any significant unfairness in this case. The principal allegations relied upon related to the 8 July 2016 team building event. Although some weeks had passed it was not such a long time that Mr Rogers could not be expected to have reasonably clear recollection. The employer did not rely on documentary material but rather on the recollection of those who had been involved in the 8 July 2016 incident. It is not readily apparent how further notice would have assisted Mr Rogers. Additional time would not have allowed him the opportunity to obtain additional relevant information. All that was really relevant in response to the allegations was his version of the events and his response to the version of events of others who were present.
[29] Mr Rogers was critical of the fact that that employer did not interview two of the participants. One of the two persons gave evidence that in fact Mr McLean did speak to them and asked them if they had seen anything that evening. It may have been better if Ms McKerlie had been interviewed and I found her evidence useful. However, I am not satisfied that this impacted on the procedural fairness of the dismissal.
[30] Although I have accepted that Mr Rogers behaved aggressively towards Ms Clayton I am not satisfied that this conduct was sufficiently serious that it could form a valid reason for dismissal. I also do not think that there is any problem with the fact that Mr Rogers was critical of his employer and the magazine at the function. In my view it is to be expected that employees will be critical of the employer in discussions at work social functions. When work colleagues relax it is reasonable for them to let off some steam. The standards of behaviour which are appropriate at a work social function and those which are appropriate during normal working hours and duties are different in this respect. This is particularly the case in circumstances where the employer has funded alcohol at the event and given that the more formal part of the event had concluded. However, I consider that the behaviour towards Ms Clayton created a context within which the behaviour towards Ms Farrelly occurred.
[31] There is nothing in the material provided by Mr Rogers that could justify the making of the offensive comments to Ms Farrelly. Given I have rejected Mr Rogers evidence concerning the incident and have accepted the evidence of Ms Farrelly the behaviour is even more indefensible.
[32] The issue raised by Mr Rogers which has the most force is that the event took place outside of the normal workplace, outside of normal working hours and based on the findings I have made it occurred in a taxi after the work social function had ended. Events at work social functions can form a valid reason for dismissal but certain conditions need to be met. It is relevant in this case that Allianz has a code of conduct and a policy regarding harassment. Mr Rogers accepted that he was familiar with those policies. It is clearly a breach of those policies to engage in conduct which offends, humiliates or intimidates. The policies are not restricted to conduct in the workplace but include conduct “in connection with employment.”
[33] The leading authority on the question of the extent to which conduct outside the normal workplace and or normal working hours can provide a valid reason for termination is the decision of Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited. 1
[34] He concluded, at page 12:
“It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited:
● the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
● the conduct damages the employer’s interests; or
● the conduct is incompatible with the employee’s duty as an employee.
In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.
Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.”
[35] His Honour concluded that a valid reason for termination for conduct outside work would require “requisite connection to his employment”.
[36] In Anthony Farquharson and Qantas Airways Limited, 2 a Full Bench dealt with “the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees.” In that case, Qantas had a legitimate interest in ensuring that incidents did not occur which damaged its interests and reputation.
[37] Mr Rogers referred to the decision of Vice President Hatcher in Stephen Keenan v Leighton Boral Amey NSW Pty Ltd. 3 In that case the Vice President found that conduct which occurred between work colleagues in an upstairs bar did not constitute conduct within the scope of employment such that it could legitimately constitute a valid reason for dismissal having regard to the principles in Rose. The offensive behaviour in that case occurred in a private social setting, albeit involving persons sharing a common employer who had just attended an official Christmas function. The Vice President did not consider that the conduct was indicative of a rejection or repudiation of the employment contract in that case. In that case the Christmas function had a defined finish time and location in the notice provided to employees. The behaviour occurred in a different location and after the designated time. The Vice President did find that conduct which occurred during the official function did constitute a valid reason for dismissal. However, he found the dismissal was unfair after taking into account a number of factors including the intoxication of the Applicant and the contribution that the employer made to his intoxication.
[38] In this case there was no suggestion that Mr Rogers was drunk or that the employer failed to adequately control the supply of alcohol during the formal part of the proceedings.
[39] I have no doubt that both Mr Rogers and the victim, Ms Farrelly, were in attendance at the event in their role as employees and not in a private capacity. If it were not for the work function and the requirement to attend it, neither Mr Rogers nor Ms Farrelly would have been in the members bar nor would they have been in the taxi leaving the bar. I agree with Vice President Hatcher that it is not sufficient to establish that “but for” the fact that Ms Farrelly and Mr Rogers were both employees the event would not have occurred. I agree that there must be a stronger connection to work than that. I do not accept Mr Rogers’ evidence that the work event ended at 9.30pm when the group moved from the Olympic room to the members bar. I accept it was a more informal part of the event but there was no sharp demarcation between the time in the Olympic bar and the time in the members bar. It was a continuation of the same event. The travel from the venue after the event ended was a necessary part of the event.
[40] In this case I am satisfied that:
● Viewed objectively the conduct is likely to cause serious damage to the relationship between the employer and the employee. There is no doubt that the offensive and threatening comment made to Ms Farrelly and the absence of any regret or apology seriously damaged the capacity for Ms Farrelly to work effectively with Mr Rogers notwithstanding her professionalism. It was necessary for these two colleagues to work cooperatively in the same workplace. Ms Farrelly worried about the incident for several weeks after it occurred. She then reported the incident. She continued to feel uncomfortable and upset when in Mr Rogers’ presence. Her discomfort and continuing upset about the incident was still obvious at the time of the hearing of this matter.
● The connection between the circumstances of the harassment of Ms Farrelly by Mr Rogers and their employment is clear. Firstly, I am satisfied that there was no specified finishing time for the work function. Secondly, I am not satisfied that the activity in the members bar was an unrelated private function; rather it was a continuation of the earlier function. Thirdly, the comment made by Mr Rogers was in direct response to comments made by Ms Farrelly about work in response to his comments about work. Common employment was considerably more than a mere incidental factor.
[41] Given Mr Rogers relatively senior role, his gender, that the comments were made in a work context (a team building event paid for by the company), the absence of any provocation, and his relatively short period of service I am satisfied that the comments made constitute a valid reason for dismissal. The comments are extremely offensive and threatening. They are a threat by a senior male employee to commit a violent assault on a female colleague. In my view it is totally irrelevant as to whether or not there is any basis for the suggestion that Ms Farrelly had allowed another employee to touch her earlier in the evening; there is absolutely no basis for Mr Rogers to threaten to assault Ms Farrelly.
[42] In these circumstances I do not consider it necessary to consider the other alleged misconduct. It is sufficient to find that the conduct of Mr Rogers in making the offensive comment to Ms Farrelly when leaving a work team building event is a valid reason for dismissal when considered in the context of Mr Rogers’ relatively senior role, his relatively short period of service and the absence of provocation. This is also the case because the comments were both offensive and threatening and could reasonably be expected to cause considerable embarrassment and distress and did cause such embarrassment and distress.
[43] That said, I am satisfied that the correspondence concerning the provision of benefits to Mr Rogers during the period of his proposed overseas holiday in return for space and positive coverage in the magazine is a clear breach of Allianz’s code of ethics and also constitutes serious misconduct. The instructions given by Mr Beattie that promises of editorial space should not be made without prior approval and that Mr Beattie should be copied into all communications with third parties which involved discussion about editorial space were reasonable management instructions. The fact that some of the personal benefits had not been locked in is beside the point – seeking such benefits is clearly unethical in the absence of prior management approval. If it was necessary to consider this matter I would find that it was a valid reason for termination of employment.
[44] I have earlier dealt with the issues of procedural fairness. For the reasons given earlier and given the uncontested facts of this matter the factors in Section 387(b) and (c) stand in favour of a finding that the dismissal was fair. The factors in Section 387(d), (e), (f) and (g) are neutral factors. In respect to the procedural fairness issues raised under Section 387(h) I have found that the short period of notice given to Mr Rogers prior to the show cause meeting did not result in unfairness in the circumstances of this case
[45] In respect to the other matters raised in respect to Section 387(h) I have found that there was no inconsistency in respect to treatment relating to ethical issues and purchasing. The circumstances of the matters raised by Mr Rogers as illustrating alleged inconsistency concerning ethical conduct and the matters concerning Mr Rogers seeking personal benefits during a period of annual leave are completely different. I found the evidence of the Allianz employee relations manager, Ms Thomas, concerning the code of ethics highly credible.
[46] For the reasons discussed earlier I consider that dismissal was a proportionate response to the 8 July 2016 conduct having regard to the length of Mr Rogers’ service, the seniority of his position and the serious nature of his conduct.
[47] The final matter to be considered is the allegation of bullying. Mr Rogers accepts that he never raised a bullying complaint and that he never used the word bullying prior to the show cause meeting on 8 August 2016.
[48] Mr Rogers did raise concerns about being ostracised by his colleagues and about comments being made about the way he dressed. He also raised concerns about being micro-managed by Mr Beattie and about the failure of the organisation to welcome and adopt his suggestions. He did raise some concerns during the course of his employment with Ms Robinson and I am satisfied by the evidence that these concerns were taken seriously and were responded to. Mr Rogers gave evidence that Mr McLean and Ms Te Maipi discussed the issues with him and were supportive and made positive suggestions. I accept that some inappropriate comments may have been made to Mr Rogers and also that some of his colleagues may have been less than welcoming. However, I am satisfied that others, particularly Ms Farrelly, made an effort to be welcoming and inclusive. I am not satisfied that the conduct of others towards Mr Rogers in any way reduces the seriousness of his conduct towards Ms Farrelly on 8 July 2016.
[49] For these reasons, taking into account all of the factors listed in Section 387 of the Act I am satisfied that the dismissal was fair. The application is dismissed and an Order to that effect is published separately.
COMMISSIONER
Appearances:
Mr G Rogers represented himself.
Mr K Brotherson appeared for the Respondent.
Hearing details:
2017
Melbourne
January 16, 17 and 18
1 (1998) Q9292 (Rose).
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