| [2018] FWC 7314 [Note: An appeal pursuant to s.604 (C2018/7350) was lodged against this decision.][Note: The quantum of compensation in this decision and the associated order has been quashed - refer to the Full Bench decision dated 13 February 2019 [2019] FWCFB 898] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Guorgi
v
Transdev Queensland Pty Ltd
(U2018/219)
COMMISSIONER BOOTH |
BRISBANE, 3 DECEMBER 2018 |
Termination of employment - arbitration.
[1] Mr Michael Guorgi worked as a Compliance Coordinator for Transdev Queensland Pty Ltd (Transdev). He had been employed at the time of termination for approximately four years.
[2] Transdev’s website describes its Brisbane’s operation as follows “In Brisbane we operate the busy Brisbane ferries and numerous bus contracts including important school services.”
[3] It is Transdev’s case that Mr Guorgi was terminated following a breach of the Transdev Queensland drug and alcohol policy (the D & A Policy).
[4] Transdev alleges Mr Guorgi failed to notify Transdev that he was taking Nurofen Plus, 1 failed to report the use by not providing a medication declaration form to his Manager and failed to comply with the Drug and Alcohol Testing Procedure in relation to a saliva test. Additionally, Transdev considered that Mr Guorgi failed to appreciate the seriousness of these allegations or to acknowledge any error was of particular concern given his role of Compliance Coordinator.
[5] Mr Guorgi’s case is that he did not breach the D & A Policy and that as a result his dismissal was unfair. Mr Guorgi says he was dismissed from his employment for an allegation of serious misconduct for not filling in a form to advise he was taking Nurofen Plus for his pain. He considered that working in an office with deskbound duties introduced no risk in the taking of the Nurofen Plus.
[6] Mr Guorgi considered that it was unnecessary to provide a medication declaration form in these circumstances. He was not a risk being on the same medication at the time he was cleared for employment back in 2014.
[7] Mr Guorgi alleges significant procedural deficiencies in the process leading to termination which include serious bullying of him and that, despite advising (prior to his dismissal) that he felt unwell, this was never a concern to any person throughout the process right through to dismissal.
[8] He submits he has been unfairly dismissed and seeks reinstatement, continuity of employment and backpay.
[9] Mr Guorgi provided a statement and was cross-examined at length. He also provided comprehensive submissions. He was assisted at the hearing by his brother, Mr George Guorgi.
[10] Transdev submitted statements from former employee, Ms Sandra Taylor, who was Safety Quality and Risk Manager at the time; Ms Stephanee Belmonte, People and Culture Business Partner; and Ms Tilly Loughborough, Managing Director Transdev Queensland and Group General Manager, Customer Experience, Transdev Australasia. Transdev was represented at hearing by Mr Martin Bower, Group Manager People and Culture.
The D & A Policy
[11] Transdev’s D & A Policy is an 8 page document. It states that its purpose is to instil a culture in which the use of illicit drugs and inappropriate and excessive consumption of alcohol is not acceptable.
5.3 Prescribed Drug Use and Work
The use of prescription or over-the-counter (OTC) medications may impair a person’s ability to safely perform their role. Workers taking prescribed drugs or OTC medications are to obtain advice from their Doctor (or pharmacist for OTC medications) as to the effects of the drug that may be relevant to the persons work performance. This information must be conveyed to the Safety, Quality and Risk Manager prior to commencing work or as soon as reasonably practicable once the taking of such medication commences.
Employees who are required to take prescribed or over-the-counter medication on a long-term basis that may impact their ability to safely perform their role must also obtain written advice from their doctor as to the general nature of the problem, drugs prescribed and period of medication. It will then be the responsibility of the employee to notify their manager and obtain a medical clearance before being cleared to work.
Notification of prescribed or over-the-counter medication must be reported using the Medication Declaration Form. The Safety, Quality and Risk Manager is responsible for managing the process of notification from employees and any subsequent actions.
[12] The Compliance Coordinator role job description was provided by Transdev. The Position Purpose is as follows:
The purpose of this position is to ensure the business’ compliance with all applicable standards and governance requirements as mandated by accreditations or by law.
[13] A Drug and Alcohol Testing Procedure complements the D & A Policy. It identifies the Safety, Quality and Risk Manager as responsible for the testing schedule and targets, or key performance indicators (KPIs).
[14] The Compliance Coordinator, the position held by Mr Guorgi, was responsible for coordinating the test schedule, ensuring the practicalities of testing and documenting test results. For example, making sure the test equipment is serviceable, entering results of the test sessions and updating employee information in the drug and alcohol register.
Events of 14 and 15 November 2017
[15] On 14 November 2017, Mr Guorgi arrived at work early understanding an audit was to be conducted. On arrival, he was asked by Ms Taylor to come into her office. Ms Taylor advised it was necessary to do some drug tests to get the KPIs up. Mr Guorgi was asked by Ms Taylor to perform a test on himself.
[16] Transdev says the tests were called because target KPIs had not been met for two months.
[17] Mr Guorgi described this event in the following way in his final submissions: “Ms Taylor calls surprise ‘secret’ drug tests without an Authorised Drug Tester.”
[18] Mr Guorgi indicated that he participated in the testing, but told Ms Taylor that self-administered tests could not count as KPIs. On his evidence, he thought he was providing a demonstration. 2
[19] Ms Taylor had never before organised a test and was not an authorised tester.
[20] Before administering the test, Mr Guorgi advised Ms Taylor he was taking Nurofen Plus. The test revealed a non-negative result consistent with the taking of Nurofen Plus.
[21] Mr Guorgi was not stood down immediately, something he considers important as that was inconsistent with the D & A Policy, reinforcing his view of the stringency of the D & A Policy’s application.
[22] Two other matters were raised by Transdev: first, the behaviour of Mr Guorgi at the time of testing on 14 November 2017; and second, the response to Ms Taylor’s request for the packaging of the Nurofen Plus.
[23] Ms Taylor contended that Mr Guorgi acted quite nervously after being told he was to be tested, as if he had something to hide. 3 Mr Guorgi counters he was indeed nervous because he was unsure of Ms Taylor’s intentions in asking him to self-test.4
[24] Both Ms Taylor and Mr Guorgi were tested using the drug detection device. Ms Taylor says Mr Guorgi treated the two devices differently. He left her device alone undisturbed for 5-10 minutes, yet he picked his up and moved it a number of times. She contends that Mr Guorgi did not respond to her comments or queries about leaving the testing device to sit and not be touched. 5
[25] On the packaging, Mr Guorgi agrees that he mistakenly provided a Panadeine Forte box rather than a Nurofen Plus box but the next day provided the correct box. The Nurofen Plus box shown to Ms Taylor stated on the label that the medication “may cause drowsiness”.
[26] Mr Guorgi asserts that the test of 14 November 2017 caused Ms Taylor no concerns except for an issue around the requests for packaging about the drugs being taken.
[27] The next day, 15 November 2017, Mr Guorgi volunteered to do a second saliva test.
[28] His testimony in examination-in-chief was as follows
“…Then moving to the morning of the 15th, you said that you grabbed a test device, Sandra says you grabbed a test device and you, after showing her the medication box, and you went inside, you put it in your mouth and you showed her the test. Was that an official test or was it just -I mean, why did you actually do it?—No. I think with the non-negative on the Tuesday I just wanted to show Sandra how inaccurate the testing – sorry, how accurate/inaccurate the testing devices are. So I understand, as an accredited tester, that a saliva sample will detect 12 to 24 hours in a saliva sample, up to three or four weeks in a urine sample, but 12 to 24 hours. So I didn’t take any tablets that night, any Nurofen, and that morning I just wanted to show her that there’s no issue, I grabbed a saliva sample, of my own volition, went and volunteered a sample test, and did the test, showed it was negative, and threw it in the bin, “Right, there you go, nothing to be worried about”. 6
[29] Ms Taylor’s evidence is also that Mr Guorgi suggested that he undertake a second drug test. She had not planned nor suggested the additional test but was happy to follow his suggestion.
[30] Ms Taylor submits she again became concerned about Mr Guorgi’s behaviour. Her evidence was that that Mr Guorgi left the device for an even shorter time than the day before and threw it in the bin before she could properly examine it.
[31] After Mr Guorgi left, Ms Taylor says she picked up the device and saw a faint line next to the opiates indicator.
[32] She requested Mr Guorgi complete an external test and stood him down pending the results.
[33] That test returned non-negative for opiates. Mr Guorgi was formally stood down. Mr Guorgi says no specific reasons were given; simply that he was stood down with Ms Belmonte stating it was because of concerns about him not following policies and procedures.
[34] Ms Taylor’s opinion was that Mr Guorgi was quite angry. He returned his master key and left the premises.
[35] Mr Guorgi is critical of the process of 14 and 15 November 2017 in his final submissions. He says:
• Ms Taylor made incorrect observations and an incorrect interpretation of the second saliva test;
• that on 15 November 2017, Mr Guorgi used a saliva testing device, interpreted the results as negative, showed it to Ms Taylor and then discarded the device as per normal practice;
• Ms Taylor did not know the difference between the codeine content of Panadeine Forte and Nurofen Plus. There is a significant difference;
• the Managing Director should not have relied upon the drug test results from Ms Taylor as she is not a qualified tester;
• that the serious allegations of tampering on 14 and 15 November 2017 required an assessment by a qualified authorised tester to verify the facts and allegations as made by Ms Taylor.
Events prior to 14 November 2017.
[36] Mr Guorgi worked for Transdev for four years. He submits he was the subject of an extreme targeted bullying campaign by Ms Belmonte over the last two years. For the first two years, he says he was subject to no disciplinary proceedings, but after Ms Belmonte arrived he was subjected to a significant number of misconduct charges. Ms Belmonte said there were four charges; Mr Guorgi says seven. He asserts he was threatened with dismissal five times including for fraud and falsification of a timesheet (which was a claim for overtime); sexual harassment; failure to follow a lawful instruction; breach of contract; and ultimately this dismissal.
[37] Transdev asserts that it did not rely on these earlier incidents as the basis of the dismissal except for the overtime claim.
[38] In answer as to why such material would be included if not relied on, Mr Bower submits:
“Obviously in terms of the previous disciplinary history it’s part of I guess, the underlying story, but Ms Loughborough has made it clear in the final termination letter, that it was the matters before her in relation to his immediate conduct that form the basis of her for her decision along with his response to that. And that’s crucial it’s his response to those things that she has taken into account in determining what the outcome would be”. 7
Letter from Wayne Richards
[39] Mr Guorgi relied on a letter dated 20 November 2017. Mr Guorgi had written to Mr Wayne Richards, General Manager Group Health, Safety and Environment Quality, about his then manager Mr Michael Fyfe. Mr Guorgi relies strongly on this letter, in particular, this paragraph about previous investigations:
“I am aware that there were other aspects to your complaint directed at the outcome of previous investigations undertaken within the business. I have limited confidence that the previous investigations were not procedurally compromised due to the lack of independence of the people making the enquiries. For this reason, Transdev does not afford significant weight to the outcomes of those investigations.”
[40] Mr Guorgi suggests this letter supports that there should be no reliance on earlier disciplinary matters. 8
[41] In response, Mr Bower indicated that this letter essentially dealt with the relationship between Mr Guorgi and his then manager Mr Fyfe. Mr Richards is not responsible for people and culture matters but safety and safety teams, and in his submission the letter was specific to safety and safety teams. 9
Investigation and dismissal process
[42] After Mr Guorgi’s stand down on 15 November 2017, Transdev conducted an investigation through Ms Taylor and Ms Belmonte.
[43] Mr Guorgi is critical of the role of Ms Belmonte, both at the time of the drug testing and in the investigation. His case is that Ms Belmonte was unnecessarily advised of the outcomes of the drug testing, inconsistent with privacy requirements of the D & A Policy. 10 In reply, Transdev submitted that Ms Belmonte’s role includes investigating employee conduct in circumstances such as these.
[44] On 20 November 2017, a formal letter was written inviting Mr Guorgi to a meeting.
[45] The letter stated:
• You have breached the Transdev Queensland Drug and Alcohol Policy by failing to notify Transdev that you were taking a prescription or over-the-counter medication.
• You failed to report your use of a prescription or over-the-counter medication by providing your manager with a Medication Declaration Form.
• You failed to comply with the Drug and Alcohol Testing Procedure in relation to the saliva test, by throwing the saliva tester away before having the result witnessed by an independent person.
As set out above, Transdev considers these breaches to be particularly serious given the role that you occupied within the business.
[46] On 22 November 2017, Mr Guorgi participated in the meeting with his brother, Mr George Guorgi, as support person.
[47] Mr George Guorgi’s evidence was that the meeting was highly conflictual and his role as a support person was challenged by Ms Belmonte. Mr Guorgi says this was unfair and there was there was no communication about the reason for the stand down and his job being in jeopardy. He was critical of the meeting process saying there was insufficient time to respond or ask questions. He says the meeting was procedurally unfair. 11 He describes Ms Belmonte as being hostile and aggressive.
[48] The outcomes of this meeting were recorded in Ms Belmonte’s final report, in which she made nine recommendations to the Managing Director, Ms Loughborough for consideration.
[49] The report substantiated the allegations. It found that because of Mr Guorgi’s past performance history there was a great risk to the business if he remained employed as Compliance Coordinator. The report elaborates on Ms Belmonte’s conclusion that Mr Guorgi showed ‘zero remorse’; was defensive, was critical of company policy and procedures and of Ms Taylor and Ms Belmonte. Reference was made to a first and final warning of falsifying hours on a timesheet; past counselling from his manager in the last couple of months for similar and new concerns; and continually leaving the site early without authorisation. Ms Belmonte stated that Mr Guorgi had not improved and was unwilling to follow policy and procedures. She noted Mr Guorgi refused to accept any wrongdoing on his part or that improvement was required. Ms Belmonte’s opinion was that Mr Guorgi’s continued employment was a risk to the business. Ms Belmonte cited potential stress claims or resignation of any manager who Mr Guorgi reported to, the level of supervision required, his continued behaviour of ‘dishonesty’, and lack of willingness to comply with policies and procedures as reasons for this opinion.
[50] The report concluded that if Transdev were considering termination, Mr Guorgi should be presented with a show cause letter as to why he should not be terminated before a decision was made.
[51] Mr Guorgi disagreed with both the content and conclusions of the report, submitting it is factually incorrect; the conclusions not supported by evidence; and that it is biased. He notes the testing regime that led to his stand down was not conducted in accordance with the D & A Policy. Further, he says that Ms Taylor did see the results of the second test, but she did not have a chance to closely review them. 12
[52] Ms Belmonte’s final report suggests that Mr Guorgi showed no remorse or appreciation for the significant breach of the D & A Policy and Procedure.
[53] In response to allegations that no remorse was shown, Mr Guorgi says that he had no option except to admit he was at fault. He was not afforded the opportunity for a reasonable discussion and his complaints were not responded to. 13
[54] He submitted that questions about expected behaviours were vague and imprecise. His answer was that he should follow Australian standards and legislation, stick to the rules and policy. He says this describes his role, but Transdev seemed to be looking for expression of desirable character traits such as trustworthiness. Had he been asked about the qualities or attributes required, he would have answered accordingly, but he was not asked those questions. 14
The decision to dismiss Mr Guorgi
[55] The decision to dismiss was ultimately made by the Managing Director, Ms Tilly Loughborough. She provided a statement and was cross-examined.
[56] Her understanding of the tasks of Compliance Coordinator included preparing worker’s compensation submissions, managing employees’ return to work, and managing the general health and safety environment within Transdev’s local bus business.
[57] She was presented with the findings report. She noted that preparation of a findings report was part of the usual process so she has the “full picture of the situation for making any disciplinary decision”. 15
[58] She deposes that she read the findings report of Ms Belmonte and agreed a show cause process should be undertaken. She signed a show cause letter drafted by Ms Belmonte.
[59] While the findings report included significant details about Mr Guorgi’s disciplinary history, the show cause letter focused essentially on matters arising out of the events of 14 and 15 November 2017.
[60] The show cause letter was responded to by Mr Guorgi’s then representative, Brian Newman of Workers First, who sought an extension of seven days which was granted.
[61] Ms Loughborough deposes that the response focused on the application of the drug test which was not the primary issue for her.
[62] Ms Loughborough spoke about the need for awareness, particularly in the role of Compliance Coordinator, and the responsibility for educating others in applying the D & A Policy.
[63] She deposed she was concerned that Mr Guorgi did not demonstrate understanding of the policies and what impact that might have on his role with other Transdev workers.
[64] She deposed that she attended the show cause meeting on 20 December 2017 along with Mr Guorgi’s representative and that the meeting presented an opportunity for Mr Guorgi to show remorse and to demonstrate understanding of the situation and the responsibilities of his role.
[65] Her evidence was that Mr Guorgi was asked what he needed to do to save his job; whether he understood what had happened; the importance of the D & A Policy as it applied and the potential consequences of it not being applied. She says Mr Guorgi said words to the effect that he felt he been treated unfairly and that the D & A Policy was not relevant and did not need to be applied in his case.
[66] She deposed that if Mr Guorgi was in any other role, she may have explored retraining but as his role was to educate others about the D & A Policy and Procedure, his lack of demonstrated understanding led to her conclusion that she could not have confidence in him to deliver his role without posing a risk to the business.
[67] The evidence of non-compliance with the D & A Policy and Procedure, coupled with the lack of remorse or demonstration of understanding, led her to conclude Mr Guorgi’s conduct was serious misconduct and that termination was the only course of action open.
[68] Mr Guorgi submits that the allegations of serious misconduct are not properly based.
[69] He submits bias in the process leading to his drug test:
• he was targeted and his selection was not random in accordance with the D & A Policy; and
• the serious allegations of tampering on 14 and 15 November 2017 required an assessment by a qualified authorised tester to verify the facts and allegations made by Ms Taylor.
[70] On the question of being a Compliance Coordinator and the emphasis placed on this role, Mr Guorgi submits that he was not employed as a drug and alcohol tester. He is just one of 25 other designated authorised testers. He is not the only subject matter expert but he is the most experienced having conducted hundreds of tests.
[71] Mr Guorgi also says that achieving drug and alcohol testing KPIs was Ms Taylor’s responsibility, not his. He further points to the roles listed in the Procedure (see [14] above which provides details of the role of the Compliance Coordinator).
[72] His case is that all authorised testers have primary jobs, other than drug and alcohol testing. In his view, the Medication Declaration Form is a low priority administrative tool to be completed within a few days or a couple of weeks. The emphasis placed on it in his case was different.
[73] Mr Guorgi submits there is a clear differentiation between the declaration at the time of consenting to drug test, “is there anything to declare that may affect the outcome of the test” and the safety question, “is there anything that will impair your work performance”.
[74] On the question of impairment, Mr Guorgi stated:
“I was taking a lower strength painkiller that didn’t impair me so that I could come to work and do my job…,which is why I didn’t fill in a Medication Declaration Form. … I didn’t fill in that Form because the medication didn’t impair me”. 16
[75] Mr Guorgi additionally points to his pre-employment medical examination conducted in 2014 where he was taking Nurofen Plus at the time and that this was known to Transdev. 17
[76] In Mr Guorgi’s final oral submissions, 18 it was put that if Transdev didn’t like the way he conducted the testing or had concerns about policy implementation, then this was the first time it had been raised. Mr Guorgi further submitted that he simply could have been stopped from conducting the tests and left to his other duties if that were the case. In his submission, nothing else in his conduct as Compliance Coordinator justified the dismissal.
Respondent’s Submissions
[77] Transdev relies on alleged breaches of the D & A Policy. Specifically, Mr Guorgi’s alleged failure to notify and report, and subsequent throwing away of the saliva test before being witnessed by an independent person.
[78] On the issue of the obligation of Mr Guorgi under the D & A Policy, Transdev submitted that Mr Guorgi agreed that the policy applied to him, 19 and that, as a senior Safety Manager in the business, he was under an obligation to ensure that he was complying with the D & A Policy at all times and set an exemplary example.20
[79] The Statement of Ms Taylor succinctly puts Transdev’s position: 21
“Ms Belmonte, Ms Loughborough and I held conversations that we were concerned that someone in Mr Guorgi’s position of Compliance Coordinator an authorised tester had not only returned a positive result, but had also failed to follow proper process which he was responsible for applying as part of his role. It raised concerns for us, as did the manner of his response.”
“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 Transdev 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.”
CONSIDERATION
[80] For a reason to be valid, it must be sound, defensible and well-founded. In this matter, Mr Guorgi was dismissed following the finding of serious misconduct which is defined in regulation 1.07 of the Fair Work Regulation. The test for the Commission is whether any misconduct was a valid reason for dismissal regardless of how it is labelled by the employer. What is required is an assessment of the reason for dismissal and whether it is misconduct, and if so, if the Commission is satisfied the misconduct actually took place and is it of sufficient gravity to justify dismissal. 22
[81] Transdev’s reasons for this dismissal were on the following basis: the breach of the D & A Policy by not notifying the taking of the drugs; the failure to report under the D & A Policy; and the failure to comply with the D & A Policy concerning the testing regime. An additional factor was Mr Guorgi’s failure to appreciate the seriousness of the breaches in light of the position he held. Transdev also relied on the breach of the overtime policy.
Is the D & A Policy lawful and reasonable?
[82] In my view, this policy is lawful, reasonable and although poorly worded, the intent is clear: to address safety issues that might arise from employees using medication that may impair an employee’s ability to safely perform their role. The D & A Policy requires employees to get proper advice about the effects of medication, and to tell responsible managers in various ways. The D & A Policy requires that advice is sought and conveyed to responsible managers each time, allowing specifically for long-term medication needs. The D & A Policy importantly and explicitly does not leave it to individual employees to judge whether the medication might or might not impair safe work.
[83] In the context of Transdev’s business, including school buses, such a policy is reasonable.
[84] Mr Guorgi’s reading of the D & A Policy is selective, and allows for a subjective judgement by the employee about actual impairment. No part of the D & A Policy allows for self-assessment.
The reasons for dismissal
[85] Mr Guorgi admitted to taking Nurofen Plus, and an objective external test was consistent with that. Transdev’s stated reasons for dismissal were not that he was using Nurofen Plus, but that he failed to make the appropriate notification and declaration as required by the D & A Policy. As his responsibilities were intimately connected with the D & A Policy, the failure was serious enough to warrant dismissal, especially when coupled with his lack of demonstrated understanding.
[86] Mr Guorgi’s submits that he was dismissed for taking the Nurofen Plus despite that Transdev knew he was taking it from the time he was first employed. I note that Mr Guorgi’s doctor provided a clearance after the tests and the alleged breaches of the D & A Policy.
[87] I mentioned above that the D & A Policy could be clearer. It would benefit from clear statements of the steps required by employees for their obligation to report, the means of discharging the obligations, and stipulated time frames for each.
[88] By failing to report the taking of Nurofen Plus and failing to complete a Medication Declaration Form until well after the testing, Mr Guorgi was in breach of the D & A Policy. Accordingly, the first and second allegations are substantiated on the evidence.
[89] The third allegation is not.
[90] That allegation concerns a failure to comply with Transdev’s Drug and Alcohol Testing Procedure because Mr Guorgi allegedly did not conduct the second saliva test properly.
[91] While Ms Taylor expressed concerns about Mr Guorgi’s demeanour and changing his story, the basis of the third allegation is as follows:
“You failed to comply with the Drug and Alcohol Testing Procedure in relation to the saliva test, by throwing the saliva tester away before having the result witnessed by an independent person.”
[92] The evidence amounted to a difference of opinion about how a self-administered test should have been conducted. 23
[93] In my view, the conduct reported could not amount to a breach of the D & A Policy.
[94] Ms Taylor was not qualified to administer or interpret the test. The test, self-administered, was not an objective test, and on Mr Guorgi’s own evidence was intended to show the tests were not reliable but indicative. It may be he hoped to exonerate himself, but self-evidently he did not.
[95] The conduct may have been ill-advised and done with some manipulative intent, but in all the circumstances it is a significant overreach to characterise it is failure to comply with the D & A Policy. I find the third allegation is not substantiated on the evidence.
Reasons for dismissal
[96] In addition to the three allegations, Ms Loughborough considered Mr Guorgi’s responses to the allegations given his role in Transdev. These responses were not favourable to Mr Guorgi and led to Ms Loughborough’s conclusion that his ongoing employment would be a risk to the business and her trust in him to be able to deliver on his role successfully.
[97] Ms Loughborough’s evidence pointed to the crucial compliance function of Mr Guorgi’s position, “to ensure compliance with all applicable standards and governance requirements”. Mr Guorgi’s conduct, including his stated views on the D & A Policy and his cavalier treatment of the second test, was consistent with Ms Loughborough’s stated loss of confidence in him in that role.
[98] Mr Guorgi had an opportunity to reflect on what he had done and to demonstrate understanding of the D & A Policy. Mr Guorgi also had an opportunity to show his preparedness to work differently in the future and consistently with corporate requirements. That was not his chosen path.
[99] It is open on the evidence to conclude that Mr Guorgi saw his job as a series of tasks somewhat disconnected from the express words of the D & A Policy and from the important purpose of safety compliance. It is open to conclude, as Ms Loughborough did, that Mr Guorgi gravely misunderstood his role.
[100] As managing director she would naturally be concerned with the responses. A compliance coordinator who does not share the corporate view on an important policy seems unlikely to be able to carry out the very purpose of the position, even if he is competent at component parts.
[101] I accept that Ms Loughborough, and therefore Transdev, had lost confidence in Mr Guorgi for reasons supported by the evidence.
Unfair targeting
[102] I also accept that Mr Guorgi was subject of some significant, sustained and often unnecessary allegations by Ms Belmonte. This is evidenced in the findings report which strayed beyond an objective investigation and findings on solid evidence into opinions and conclusions.
[103] The third allegation, discussed above, is an example of this overreach.
[104] Another example is the categorisation of the overtime claim. The evidence points essentially to a disagreement about Mr Guorgi’s entitlement to claim overtime.
[105] I have taken the overreach into account in making my findings. Specifically, I have not taken into account the overtime claim.
Mr Richards’ letter
[106] Mr Guorgi placed much emphasis on Mr Richards’ letter. It cannot be read as he would like it read, in support of his reinstatement. It does not deal squarely with the dismissal and the reasons behind it. It does, however, reinforce the difficult environment that Mr Guorgi was working in.
[107] Both these matters are relevant to whether the dismissal was harsh, and not to the validity of the reasons.
[108] At the heart of Mr Guorgi’s argument that there was no valid reason is his understanding that he was not impaired by the medication, including that the nature of his work meant that medication of the type taken did not give rise to risks, and his understanding that the D & A Policy is not administered rigidly. His view is, he suggests, reinforced by the fact he was not stood down after the first test. Mr Guorgi asserts further that Transdev already knew he was taking the medicines because of his screening in 2014.
[109] Transdev’s position is that the breach was one of policy and unrelated to the physical effects of the drug. The breach was treated as serious, and warranting dismissal, because of the importance of the D & A Policy in ensuring a safe workplace and customer safety, because of Mr Guorgi’s responsibilities for administering it, and his lack of insight into the D & A Policy and its importance to his own conduct. The relevant facts from Transdev’s perspective concerned a three-fold failure by Mr Guorgi: to make the disclosure; to provide the declaration; and allegedly to properly self-administer the test; coupled with a loss in confidence he could do his job.
[110] Having found that the first two allegations are substantiated, combined with Mr Guorgi’s lack of insight and contrition, I consider that there was a valid reason for the dismissal.
Whether Mr Guorgi was notified of that reason – s. 387(b)
[111] Whether an employee is notified of the reason for the dismissal generally requires more than simply being informed of the reasons for that dismissal after a decision to dismiss has been made.
[112] Notification will ensure procedural fairness and that an employee who is at risk of dismissal can take advantage of any opportunity to respond to the allegations. It is this opportunity that must be considered taking into account an overall assessment as to whether that dismissal is unfair.
[113] Mr Guorgi submits that following the meeting of 22 November 2017 and the preparation of the findings report, he had not been made aware of the allegations in the findings report.
[114] It is Ms Loughborough’s evidence that the findings report gave her a full picture of the situation before making any disciplinary decision. However, in relation to the show cause, Ms Loughborough indicated that in deciding whether termination was appropriate, she considered Mr Guorgi’s actual conduct and then his response to it. 24
[115] I accept Ms Loughborough’s evidence on this point; that the show cause’s main focus was on the conduct of 14 and 15 November 2017 and Mr Guorgi’s response.
[116] Mr Guorgi was provided with an opportunity to respond in writing. He asked for and was granted an extension of time to respond to the show cause letter.
[117] On 20 December 2017, a meeting was held with Mr Guorgi, Ms Loughborough and Ms Belmonte. Ms Loughborough says she gave Mr Guorgi an opportunity to confirm his understanding of the allegations and the seriousness with which she took his conduct.
[118] She then confirmed that Mr Guorgi was terminated on the grounds of serious misconduct.
[119] I conclude that Mr Guorgi was properly notified of the reasons for his dismissal.
Whether Mr Guorgi was given an opportunity to respond to reasons for his dismissal related to conduct – s. 387(c)
[120] Transdev submits that Mr Guorgi was given 12 days to respond and this should have been sufficient time. Mr Guorgi noted in cross-examination that Transdev did not afford him procedural fairness “because it is totally unfair and it is not how all other employees are treated”. 25
[121] Mr Guorgi points to his email of 22 November 2017, (although possibly written prior to the meeting held with Ms Taylor and Ms Belmonte) when, Mr Guorgi wrote to Ms Loughborough. Mr Guorgi is critical that Ms Loughborough did not respond. It may have been preferable for Ms Loughborough to respond to this letter, but the fact she chose not to respond is not relevant to s.387(c) because it is the process of the employer that is assessed – i.e. it was whether the employee was given an opportunity to respond.
[122] I accept that Mr Guorgi considers this process to be unfair and his treatment different. However, Mr Guorgi was provided with a letter setting out the allegations and sufficient time to respond to them. I am satisfied he was given an opportunity to respond to the reasons for his dismissal.
Whether Mr Guorgi was unreasonably refused a support person – s. 387(d)
[123] It is Mr Guorgi’s case that while Transdev allowed a support person, Transdev interfered with his support person’s ability to adequately support him. As a result the support person could not adequately provide assistance.
[124] A support person is not an advocate for the employee. While the meeting was clearly difficult, Mr Guorgi’s brother, his support person of choice, was present and was able to provide assistance. I accept the meeting may have been tense and Ms Belmonte forceful in her approach, giving rise to a sense that the meeting was conducted unsatisfactorily. However, it is clear that Mr Guorgi was not unreasonably refused a support person.
Whether there were any warnings about unsatisfactory performance – s. 387(e)
[125] As Mr Guorgi was dismissed for misconduct, this matter is not relevant.
Size of the employer’s enterprise and the access to dedicated HR specialists or expertise – ss. 387(f) and (g)
[126] Transdev is a large employer with dedicated HR specialists. Transdev had every ability to follow a fair process.
Other relevant matters – s. 387(h)
[127] Mr Guorgi made a very large number of submissions going to the fairness of his dismissal.
[128] While I have considered all his submissions, I have only dealt with those relevant to the consideration of whether a dismissal was unfair. 26
Dismissal for serious misconduct
[129] Having concluded that the third allegation relating to tampering with the saliva test has not been proved, and while concluding that there was a valid reason taking into account the allegations that were proved and the lack of insight from Mr Guorgi, I turn now to whether the finding of serious misconduct is justified.
[130] In my view, Mr Guorgi’s conduct was not wilful or deliberate behaviour inconsistent with the continuation of the employment contract. His conduct was founded on an incorrect interpretation of a reasonable policy, and despite the opportunity to demonstrate understanding, he continued to question the policy.
[131] In my view, the two substantiated allegations, while constituting a valid reason for dismissal, do not amount to serious misconduct.
[132] The finding of serious misconduct when the evidence does not support that finding, supports my conclusion that the termination was harsh and unreasonable, despite the validity of the reason for termination. 27
Mr Guorgi’s allegations of extreme bullying, harassment and repeated investigations
[133] It has been held that this Commission should take a broad approach and have regard to a range of matters in determining whether a termination is harsh, unjust or unreasonable. A finding in respect of any one of those factors is not, in itself determinative. Where the considerations conflict, it is necessary to reach a conclusion, in all the circumstances, as to whether the termination is harsh, unjust or unreasonable.
[134] In many unfair dismissal cases there are allegations of bullying or harassment, as here. Often such allegations are not relevant matters for the purposes of s.387(h). However, in the circumstances of this particular case I conclude that they are. 28
[135] Mr Guorgi’s case detailed at considerable length the number of allegations made against him. In my view, these allegations reveal a pattern of overreach by Transdev towards Mr Guorgi. I discuss this above.
[136] The allegations cannot disturb the validity of the dismissal but they reveal a troubling pattern. Most of the allegations over the two year period before the dismissal were not sustained, and most of the material in the findings report were not adopted by Ms Loughborough into the show cause notice. Transdev, for the purposes of the dismissal, only relied on the allegations about time sheets and breaches of the D & A Policy on 14 and 15 November 2017. The inclusion of the earlier allegations tends to a finding of unreasonableness in the process leading to the dismissal.
[137] I have also considered that the dismissal was harsh on Mr Guorgi. In final submissions, (and although not the subject of evidentiary support) he indicated as follows-
[138] He has not worked since his dismissal due to a combination of health reasons and the difficulties of obtaining employment given his role was a specialist one. I accept it has been extremely difficult to obtain other employment in the safety field without a reference from his former employer.
[139] His personal consequences include that he could no longer afford to rent his home, borrowed from his family but ultimately had to relinquish his home. He did not get his bond back and moved in with a friend and shares costs. He now lives in Northern New South Wales and looks for work constantly.
[140] He has had his four-wheel drive vehicle repossessed when he was 60-70% of the way paying for it.
[141] He submits that the loss of job has had devastating effect.
[142] I accept the loss of employment has been very difficult for Mr Guorgi and that the significant financial consequences of the dismissal were harsh.
[143] For the reasons stated above at [132], [136] and [137]-[142], the dismissal of Mr Guorgi was unfair.
Reinstatement
[144] The Commission must determine whether reinstatement is appropriate before considering any other remedy.
[145] An order for reinstatement means the employer reappoints the person to the position in which they are employed immediately before the dismissal.
[146] Mr Guorgi seeks reinstatement.
[147] He points to the comment in the letter from Mr Richards which wished him well in his career. He says he has maintained confidentiality and, in his view, working relationships could be re-established.
[148] Transdev suggests there has been a loss of trust and confidence and that the position of Compliance Coordinator has been changed and is now two specialist positions. A change to specialist positions is a matter for the employer. Given the scale of Transdev’s operations, I do not consider this relevant to whether reinstatement is appropriate.
[149] However I do consider relevant, and persuasive, Ms Loughborough’s view that reinstatement is inappropriate because Mr Guorgi is in a critical safety role.
[150] Transdev also points to the clearly difficult relationship between Mr Guorgi and Ms Belmonte, noting that if reinstatement was to occur Mr Guorgi would file an anti-bullying application in the Commission against Ms Belmonte.
[151] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic Schools Australia Chapter, 29 established that an allegation of a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of the loss of confidence in the employee.
[152] Ms Loughborough’s evidence establishes a rational basis for the allegation of loss of trust and confidence.
[153] Mr Richards’ letter provides some comfort to Mr Guorgi, but he reports ultimately to Ms Loughborough in Brisbane. Transdev management’s loss of trust and confidence is not simply on the basis of an instance of non-compliance with the D & A Policy but with Mr Guorgi’s attitude to and understanding and acceptance of the policy that give rise to concerns of trust and confidence that he would properly implement it.
[154] In reaching this conclusion, I have not considered the difficult relationship between Mr Guorgi and Ms Belmonte, but take into account the overall relationship of trust and confidence between the Managing Director and Mr Guorgi.
[155] There has been a significant loss of trust and confidence in Mr Guorgi’s capacity to do his work. It follows that reinstatement is not appropriate.
Compensation
[156] Having concluded reinstatement is not appropriate I turn to consider whether compensation should be ordered.
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[157] There is no evidence that an order for compensation will have an effect on the viability of Transdev.
[158] Mr Guorgi had been employed for four years. The period of four years is a significant period of service and favours an award of compensation.
[159] Mr Guorgi submits that his future, but for the dismissal, was bright as evidenced by the letter from Mr Richards. Mr Guorgi suggests he would have been in employment for a further five to ten years.
[160] Transdev suggests that a number of allegations were made about Mr Guorgi’s conduct including his interpretation of the D & A Policy such that his employment would not have lasted beyond one to three months.
[161] Had Transdev not relied on the third allegation, there may have been a different outcome such as a final warning and monitoring of performance to see if Mr Guorgi better understood his crucial role in safety.
[162] Mr Guorgi persisted even into the hearing with his particular interpretation and attitudes towards the D & A Policy’s importance. Given his lack of insight it is unlikely that he would have remained in employment for a long period. I consider that a reasonable period of further employment is between three and four months. In the circumstances, I have therefore concluded his employment would have continued for no longer than four months.
[163] Mr Guorgi’s annual salary package at the time of dismissal was $75,250.83, plus superannuation. 30 By my calculation, Mr Guorgi’s average weekly wage, with reference to his annual salary at the time of dismissal, would be $1,447.13 per week. However, the Employment Separation Certificate submitted by Mr Guorgi records his gross average weekly wage as $1,437.12 per week.31
[164] I note further that the payslip provided by Mr Guorgi for the pay period of 21 November 2017 to 20 December 2017 records his monthly pay as $4,051.86 for 106.4 hours worked. 32 This payslip supports the conclusion that Mr Guorgi was paid $1,447.13 per week, based on an average working week of 38 hours, as detailed in Mr Guorgi’s Contract of Employment.33
[165] I therefore calculate that, but for the dismissal, Mr Guorgi would have earned a further amount of $25,083.61 plus superannuation. 34
[166] Mr Guorgi has had no employment since his dismissal. He has indicated that he has applied unsuccessfully for a number of positions. I am satisfied that given the specialised field Mr Guorgi works in, it has been difficult to obtain another job in the circumstances and therefore I do not reduce any amount of compensation on this basis.
[167] Mr Guorgi has earned approximately $1,500.00 working in his brother’s business. This amount will be deducted from the final order. It is not appropriate to make any deductions for any Social Security payments.
The amount of any income reasonably likely to be earned during the period between the making of the order for compensation and the actual compensation – s. 392(2)(f)
[168] Given the period over which I have assessed compensation, based on my conclusions about the period that Mr Guorgi would have remained in employment, this matter is not relevant to the calculation of compensation.
[169] Mr Guorgi was paid four weeks’ wages in lieu of notice, 35 and this amount will be deducted from the compensation awarded. Neither party has stated the amount of the four weeks wages in lieu of notice paid to Mr Guorgi. I note, however, that the Employment Separation Certificate submitted by Mr Guorgi records that he was paid $7,633.03 as a “final gross payment including leave and redundancy payments”.36
[170] I have calculated that, based on Mr Guorgi’s annual salary at the time of dismissal, Mr Guorgi would have been paid at least $5,788.53 in lieu of notice, being four weeks’ wages. It appears from the evidence that Mr Guorgi has already been paid this amount, together with an amount for his accrued annual leave. 37
[171] As a result, I find that an amount of $5,788.53 is to be deducted from the final order of compensation.
[172] I am of the view it is not appropriate to make a deduction for any misconduct. The misconduct here was not wilful but founded in a lack of understanding.
Conclusion on Compensation
[173] Taking into consideration all the circumstances, noting there was a valid reason for dismissal but that Mr Guorgi was dismissed for serious misconduct, the harsh effect on Mr Guorgi and the other factors detailed above, I have determined that an order for compensation is appropriate. The order will be for the payment of four month’s wages being $25,083.61, plus superannuation, less income earned of $1,500.00 and payment in lieu of notice $5,788.53.
[174] I order as follows:-
Order PR702830 will issue with this decision and it will require Transdev to pay compensation, plus superannuation, to Mr Guorgi in lieu of reinstatement of a gross amount of $17,795.08 to be taxed according to law. The order will require payment to Mr Guorgi within 21 days of the date of this decision.
COMMISSIONER
Appearances:
Mr G Guorgi on behalf of the Applicant.
Mr M Bower on behalf of the Respondent.
Hearing details:
2018.
Brisbane:
April 26, 27;
September 5.
Printed by authority of the Commonwealth Government Printer
<PR702762>
1 Nurofen Plus was (at that time) and over-the-counter medication available from pharmacies its active ingredients being codeine phosphate hemihydrate and ibuprofen. It was then an S3 pharmacy only (now S4 prescription only) medication: www.tga.gov.au/community-qa/current-list-scheduled-codeine-containing-products.
2 Transcript 26 April 2018 at PN366, PN482
3 Statement of Sandra Ann Taylor dated 3 April 2018, at [51].
4 Transcript 26 April 2018 at PN497.
5 Statement of Sandra Ann Taylor dated 3 April 2018, Attachment ST-8.
6 Transcript 26 April 2018 at PN523
7 Transcript 5 September 2018 at PN249.
8 Applicant’s Amended Final Submissions dated 27 July 2018 at [119]-[126].
9 Respondent’s Final Submissions dated 24 August 2018 at [50]-[52].
10 Applicant’s Amended Final Submissions dated 27 July 2018 at [11(f)].
11 Applicant’s Amended Final Submissions dated 27 July 2018 at [129].
12 Transcript 27 April 2018 at PN1558 - PN1561; PN1681 - PN1682.
13 Applicant’s Amended Final Submissions dated 27 July 2018 at [129(s)].
14 Applicant’s Amended Final Submissions dated 27 July 2018 at [129(w)].
15 Statement of Tilly Rose Loughborough dated 3 April 2018, at [28].
16 Transcript 26 Aril 2018, at PN808.
17 Applicant’s Amended Final Submissions dated 27 July 2018 at [85(b)(iii)].
18 Transcript 5 September 2018, at PN214.
19 Transcript 26 April 2018, at PN866
20 Transcript 26 April 2018, at PN886-PN887.
21 Statement of Sandra Ann Taylor dated 3 April 2018, at [97].
22 QANTAS v Carter [2012] FWAFB 5776; Magers v Commonwealth [2010] FWAFB 4385; IGA Distribution v Nguyen [2011] FWAFB 4070.
23 Transcript 27 April 2018 at PN1558 - PN1561; PN1681 - PN1682.
24 Transcript 5 September 2018 at PN247.
25 Transcript 26 April 2018 at PN1032.
26 Sipple v Coal & Allied Mining Services Pty Ltd t/a Mount Thorley Warkworth Operations [2015] FWCFB 2586
27 Potter v WorkCover Corporation (2004) 133 IR 458.
28 Kehagias v Unilever Australia Limited Print Q0498.
30 Statement of Michael Guorgi signed 12 March 2018, at Annexure MG-2 and MG-5.
31 Statement of Michael Guorgi signed 12 March 2018, at Annexure MG-4.
32 Statement of Michael Guorgi signed 12 March 2018, at Annexure MG-2.
33 Statement of Michael Guorgi signed 12 March 2018, at Annexure MG-1.
34 The actual amount of superannuation has not been able to be calculated on the evidence provided.
35 Applicant’s Outline of Submissions dated 12 March 2018, at [6].
36 Statement of Michael Guorgi signed 12 March 2018, at Annexure MG-4.
37 Statement of Michael Guorgi signed 12 March 2018, at Annexure MG-4.