DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Hanson
v
FMC Mediation and Counselling Victoria T/A Better Place Australia
(U2018/10043)

Application for remedy for unfair dismissal – alleged serious misconduct - whether harsh, unjust or unreasonable.

Introduction

[1] Peter Hanson was employed by FMC Mediation and Counselling Victoria trading as Better Place Australia (Better Place) as an experienced Family Dispute Resolution Practitioner from 9 May 2016 until 20 September 2018. On 20 September 2018, his employment was terminated on the grounds of serious misconduct, related to an incident on 7 September 2018 during which he is alleged to have been aggressive, inappropriate and unprofessional towards a female colleague.

[2] On 28 September 2018, Hanson applied to the Commission for an order granting a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Hanson submits that the dismissal was unfair because his conduct was not as alleged and he is the victim of “bullying and mobbing”.

[3] The matter was conciliated on 1 November 2018 and 17 January 2019 and was not settled. A hearing was held on 3 and 4 April 2019 in Melbourne. The parties were represented with permission.

Preliminary matters

[4] The application was filed within the standard 21 day time limit required by the Act.

[5] Under section 382 of the Act, a person is protected from unfair dismissal if, at the relevant time:

•  They have completed at least the minimum employment period; and

•  They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

[6] It is common ground that Hanson’s period of employment with Better Place was longer than the minimum employment period and that he was employed under the Family Mediation Centre Enterprise Agreement 2012 1 (Agreement) which applied to his employment. His annual income of $91,260.21 gross (inclusive of allowances) was less than the high income threshold. Hanson is protected from unfair dismissal.

[7] Under section 385, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; that the dismissal was harsh, unjust or unreasonable; and if relevant, that the dismissal was not consistent with the Small Business Fair Dismissal Code or not a case of genuine redundancy. 2

[8] There is no dispute that Hanson was dismissed from his employment. At the time of dismissal, Better Place employed 86 employees. 3 I am satisfied that the dismissal could not have been consistent with the Small Business Fair Dismissal Code4, because Better Place was not a small business employer at that time.5

[9] No issue of redundancy arose and I find the dismissal not to have been a case of genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

[10] The criteria in section 387 of the Act are relevant to whether a dismissal was harsh, unjust or unreasonable. Those are considered in turn.

Was there a valid reason for the dismissal related to capacity or conduct?

[11] On 7 September 2018, Hanson was involved in an incident with his colleague, Catherine Johnson. Johnson is also a Family Dispute Resolution Practitioner. The sequence of events is as follows.

[12] Hanson had an appointment with a client of Better Place, “P2”, at 1:00pm at the office of Better Place in Traralgon, Victoria.

[13] At 12:56pm, he received a phone call from his real estate agent about an electrician who was at his home and needed access to the property. The home is approximately 1 kilometre from Better Place, and the time to drive from his home to work takes approximately 3-4 minutes. 6 He agreed to go home and let the electrician in.

[14] P2 did not arrive for her appointment on time. Shortly after 1:00pm Hanson asked Johnson to greet P2 if she arrived and give her a consent form to fill out, as he had to “go out for a minute”. 7

[15] Hanson and Johnson were in disagreement about whether the appointment with P2 was necessary because a “section 60I certificate” had been requested. 8 Johnson was firmly of the view that due to the certificate requested, assessment of P2 was not required and she made this clear to Hanson.9 She asked him why he had not told P2 the certificate had been requested and why he had not cancelled her appointment. Hanson replied that he wanted to go ahead and could she meet with P2 as he had asked. He then left the office.10

[16] P2 arrived for the appointment once Hanson had left the office. According to Johnson “she was puffing and needed to sit down”; 36 weeks pregnant; suffering complications and had travelled some distance for the interview. She looked unwell and uncomfortable. Johnson offered to call for medical assistance. P2 then left Better Place to attend her doctors. 11

[17] Hanson returned to the office at approximately 1:20-30pm. Johnson told Hanson that P2 had attended the office and had just left. According to Hanson, Johnson said she had “sent her away”, told her to get a doctor’s certificate, and that she was not required to attend the appointment. Hanson asked if P2 was coming back. Johnson said no. 12 She then asked Hanson whether he knew she was 36 weeks pregnant and suffering complications. According to Johnson, Hanson looked at the file and said “Oh yeah, [name omitted] said she had about five kids to other people”.13 Hanson’s recollection is that he said “Ummm… It was not in the forefront of my mind today”.

[18] They went to the file cupboard to retrieve the client file and Hanson asked Johnson to write a case note for the file as she had seen P2 and sent her home. 14 Johnson sat down at her desk, wrote the case note and put the file away.15 The case note reads as follows:

“Peter [Hanson] was not in the office when P2 arrived for her appointment with him. He said that P1 had already requested a 60I certificate but that he was going to do a P2 intake anyway. When P2 arrived she was out of breath and feeling quite unwell. She was 36 weeks pregnant and has been suffering complications and was feeling bad after travelling all the way from [suburb omitted] for this meeting. She left the office and said that if it was required she would get a certificate from her doctor. As P1 had already requested a 60I certificate, I did not think it was necessary for her to sit here in discomfort into an intake that was no longer required.” 16

[19] In the meantime, Hanson confirmed the request for a section 60I certificate with his client and prepared the certificate. He was in a hurry, because the client wanted to pick it up that afternoon. According to Johnson, he came to her office a short time later and said “where is that file” in an agitated tone. Johnson told him it was in the cupboard and he went to get it. 17 He read the case note Johnson had written and saw that the suitability form had been left blank.18

[20] After reading the case note, Johnson says Hanson came back into her office. According to Johnson, he yelled at her to write out the suitability because she had decided P2 was unsuitable, while standing over her as she was seated in her chair in an aggressive manner, red in the face and motioning the file in her face. She felt threatened and scared. She was concerned he would be physically violent because of the anger in his face and his “voice and hand animations”. She felt unable to leave the office as Hanson was in her doorway. 19

[21] According to Johnson, Hanson was trying to force her to complete the suitability report and she refused as she did not think it was necessary and did not think it was usual practice or protocol. Hanson became progressively angrier each time she refused. Johnson says Hanson then threw the file on her desk. After she again repeated that she would have nothing further to do with the file, Hanson picked it up and stormed out of her office. 20

[22] Hanson denies standing over Johnson or throwing the file on her desk. He says he asked Johnson if she could write the suitability based on the physical health of the party, because he had not seen P2 when she had attended the office. Johnson said “no, why should I do it”. Hanson said “you saw her I didn’t”. Johnson said “no I’m not writing it”. Hanson said “okay I’ll write it” or “well I’ll do it myself”. It is not in dispute that Hanson filled out the suitability report after Johnson refused.

[23] Hanson denies raising his voice at all when speaking to Johnson. 21 He denies that he was angry, annoyed or frustrated or that his temper was flared, despite the continuing “professional disagreement” between them. The only deviation he would accept was that when he said to Johnson “well I’ll do it myself” referring to the suitability report, he was “impolite”. When pressed, he accepted things may have been “a bit testy” but not “tense”. The only emotion he could recall was feeling “smug” and “overly confident”.

[24] Hanson thought he had done something wrong when he “knicked out to go unlock my place when there was a client about to walk in the door”. He thought he had “covered off” on this transgression by arranging for Johnson to give P2 the consent form while she waited for him to return. 22

[25] Mike Kirkness is a Team Leader, Financial Counselling Services at Better Place. He was in his office when the incident on 7 September 2018 occurred. According to Kirkness, Hanson had his voice raised and sounded quite angry and aggressive. Kirkness got up from his desk and walked to the hallway to see why Hanson was yelling. From the hallway, he observed Hanson in Johnson’s office, leading over her desk towards her with the file in his hands motioning towards her, saying something to the effect of “Well you saw the client, you do the case notes!” He recalls Hanson’s tone being aggressive, angry and agitated. After the incident, he went to Johnson’s office. He observed her to be visibly shaken and upset. 23

[26] Karen Stokes, Family Advisor for Better Place, was also a witness to the incident. She observed Hanson walking into Johnson’s office holding a file. As she walked past, she heard Hanson raise his voice and say aggressively to Johnson, “you write up the suitability”. In the hearing, she described it as an argument. She recalls Hanson’s tone being aggressive. She says his voice was raised and his tone appeared angry and frustrated. She returned to her office and continued to hear Hanson yell at Johnson. She began to feel both apprehensive, scared and uneasy. She sent Johnson a text message to ask if she was okay once “it went silent”. 24

[27] Johnson did not give evidence in the proceeding, for medical reasons. Instead she provided her evidence in the form of a statutory declaration.

[28] Stokes and Kirkness were convincing witnesses. Kirkness gave a physical demonstration of Hanson’s actions in motioning the client file toward Johnson’s face. He described Hanson “shoving it at her, like a jab. Like a knife. More than once. He wasn’t hitting her with the file – an act of aggression with the file, shoving it in her face.” 25

[29] Hanson was not a persuasive witness. He was initially able to answer questions succinctly and with clarity and he did not think he had “forgotten any of the details” about his exchange with Johnson on 7 September 2018. 26. And yet when asked about his own conduct or feelings in relation to the exchange with Johnson, he was evasive. He downplayed the incident to such a degree, both in his written statements and his oral evidence, that his version of events on that day lacks credibility.

[30] Hanson has a hearing difficulty and it is possible that he is not aware of the volume of his voice at times. However I do not consider that would prevent him from being aware if his own conduct was aggressive or overbearing. Where there is a conflict in the evidence, I prefer that of Johnson, Stokes and Kirkness.

[31] There were some discrepancies in witness recollection as to the timing and sequence of the incident and the form of words used. While Kirkness recalled him saying “you do the case notes”, what Hanson was demanding of Johnson was completion of the “suitability”. In my view, the discrepancy can be explained by the close relationship between the case note and the suitability. Hanson’s evidence was that he thought Johnson should do the suitability, because she had done the case note. It is likely that he said so to Johnson as the reason she should do the suitability. If Kirkness heard reference to the “case notes”, it would have been in that context.

[32] There is also a discrepancy about the timing of the incident in Johnson’s office. Johnson and Kirkness say it occurred at approximately 1.30pm. Johnson’s evidence taken as a whole suggests that it was after 1.30pm (when Hanson first returned to the office) and before 2.35pm on 7 September 2018, when she reported the incidents by email. Kirkness says it was approximately 1.30pm because he noted that time on his computer. Hanson says it was at 2.00pm, which is when he saved the section 60I Certificate on his computer. The timing is not critical to the question of whether the incident occurred. Hanson says it affects the credibility of Kirkness’s evidence, but I do not agree. In my view, it is no more than an ordinary imperfection of memory.

[33] I am satisfied on the evidence that Hanson raised his voice at Johnson in a tone that was loud enough to hear from 10 metres away. I find that he stood over Johnson, motioning to her in the way described by Kirkness. I find that after repeated requests for Johnson to complete the suitability, and repeated refusals, he threw the client file on her desk. He then picked it up again and left the office saying “I’ll do it myself” or words to that effect.

[34] Hanson was under pressure to get the section 60I certificate ready for collection in a short timeframe that coincided with the disagreement between them. Johnson was not cooperating with his preferred way of handling the file (albeit that it was his client, not hers, and so his responsibility). Not only was she not cooperating, she was refusing point blank to do more than she had already done.

[35] I am satisfied that Hanson’s conduct, whether consciously or not, was intended to intimidate Johnson into preparing the suitability report because that is what Hanson thought was appropriate, and he thought Johnson’s contrary views about his inappropriate handling of the case were wrong. Contrary to his evidence, I find that he was annoyed with Johnson that she had sent P2 away while he was out, when what he had asked her to do was give her a consent form to fill out. He was most likely also annoyed at himself for not remembering that P2 was heavily pregnant, and at Johnson for directly challenging him on that fact.

[36] I do not accept that Hanson was “fine” with the contents of the case note written by Johnson. It exposed his transgression in leaving the office during an allotted appointment, which might later be discovered in a periodic file ‘audit’. Its contents, and Johnson’s interaction with P2 in sending her away and advising that she did not need to attend, undermined him. It also meant that Johnson’s preferred approach to dealing with Hanson’s client prevailed over Hanson’s. In my view, this did not sit well with him and helps to explain his outburst.

[37] The evidence does not establish that Hanson refused to allow Johnson to leave her office. She did not attempt to leave. I am, however, satisfied that Johnson felt trapped because she was faced with aggression and her only means of escape was unavailable as Hanson was standing in the doorway.

[38] Hanson’s conduct on 7 September 2018 may only have been short lived but it was highly inappropriate in a workplace setting and in the Better Place environment where a key focus is de-escalation of conflict. His conduct, combined with his total lack of remorse or insight into his behaviour, persuades me that there was a valid reason for Hanson’s dismissal. This weighs against a finding of unfair dismissal.

Was that reason notified to the employee?

[39] Later in the afternoon of 7 September 2018, Hanson was stood down on full pay pending an investigation. A letter of the same date confirmed the allegation of “inappropriate and unprofessional conduct consistent with aggression” and provided the following particulars:

1. That he entered Johnson’s office, through a file down on her desk and proceeded to yell at her telling her to write out a suitability assessment;

2. That he became very angry towards Johnson and yelled at her, such that other staff members on site came to the office to check and see if he was okay; and

3. That he refused to leave her office, “sharp” the file in front of her and the result was that she was unable to go out of her office for safety reasons. 27

[40] I am satisfied that Hanson was notified of valid reason for dismissal relating to Hanson’s conduct on 7 September 2018. This weighs against a finding of unfair dismissal.

Was there an opportunity to respond to any capacity or conduct related reason?

[41] On 18 September 2018, Hanson was interviewed by Better Place about the incident and asked for his response to the allegations, which he gave. The time and place of the meeting was notified to him a week in advance.

[42] I am satisfied that Hanson was given an opportunity to respond to the valid reason for dismissal. This weighs against a finding of unfair dismissal.

Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?

[43] The letter of 7 September 2018 advised Hanson that he could have a support person or observer present at the (soon to be scheduled) interview to respond to the allegations. There is no evidence of any refusal of a request for a support person to assist in dismissal-related discussions.

[44] I am satisfied that there was no unreasonable refusal to allow the Applicant to have a support person assist in discussions about the dismissal. This does not weigh in favour of a finding of unfair dismissal.

Was the Applicant warned about relevant unsatisfactory performance?

[45] Hanson’s dismissal was not related to unsatisfactory performance, but rather to his conduct on 7 September 2018. It is not a relevant consideration.

Degree to which the size of the employer’s business would be likely to impact on procedures followed in effecting the dismissal

[46] At the time of the dismissal, Better Place says it employed 86 employees. 28 There is no evidence that the size of its enterprise had any particular relevant impact on the procedures followed in effecting the dismissal, and I am not persuaded that business size would have been likely to affect those procedures in this case. It is a neutral consideration in this case.

Degree to which absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal

[47] Better Place employs David Turen as its Executive Manager Human Resources. In addition, it has Regional Services Managers with responsibility for staff management functions. There was no relevant absence of dedicated human resource management or expertise in the enterprise of Better Place such that it was likely to impact on the procedures followed by Better Place in effecting the dismissal. It is a neutral consideration in this case.

Other relevant matters

[48] Better Place is a business whose primary purpose is providing dispute resolution and related services to members of the community affected by family breakdowns. A large proportion of its clientele have experienced family violence and domestic abuse. It has adopted an Occupational Violence Policy and Procedure 29 which includes zero tolerance towards aggression and violence in the workplace.

[49] Better Place have not established that Hanson was given a copy of the Occupational Violence Policy prior to 7 September 2018. However, Hanson was an experienced dispute resolution provider and had recently participated in training in Occupational Violence. 30 He gave evidence that he knew it was inappropriate to exhibit any aggression or violence towards colleagues at work, and that staff each had a responsibility to take steps to avoid it. He was aware that Better Place had a zero tolerance policy to violence. This weighs against a finding of unfair dismissal.

[50] Part of its Occupational Violence Policy is a “Code Grey”, which was explained after the hearing as follows:

“‘Code Grey’ refers to a literal code phrase that a staff member can use to alert another staff member that they are under duress or at risk of potential or actual occupational violence.

When the receiving staff member hears the term “Mrs Grey”, this is their indication that the staff member making the call is in danger and that emergency procedures should be enacted (such as contacting 000).  Usually, this would happen by way of the contacting staff member asking the person on the other end of line to pass on a message to Mrs Grey and during that communication to mention their location.  This ensures that the receiving staff member (such as the Head Office Coordinator or Site Administration Officer for example) knows where to send/direct emergency services.

Code Grey may be particularly useful from a risk management perspective for members of staff attending a client appointment in on outreach site and/or at a client’s home.”

[51] Despite the requirement in its Occupational Violence Policy that where a person exhibits violent or aggressive behaviour, a Code Grey is to be initiated, this did not occur. Johnson did not call for help, and the two witnesses to the incident chose not to intervene, but rather to wait until it was over to offer support. In each case, the actions of Johnson, Kirkness and Stokes were regrettable. The concern does not have a bearing on the fairness or otherwise of the dismissal.

[52] I did not have the benefit of observing Johnson in the proceedings. I accept Stokes’ evidence to the effect that she is a person of strong personality. In my view she also played a part in the conflict that ensued on 7 September 2018. She displayed a lack of professional respect for Hanson and her approach was less than collegiate. As a fellow dispute resolution provider, she is also to have had relevant insight into appropriate ways of dealing with workplace conflict. This weighs in favour of a finding of unfair dismissal. However, she did not deserve to be treated the way she was. In the heat of the moment, her safety was put at risk and her sense of security at work shaken. I accept that she was, and remains, genuinely upset by the incident. In that context, it was necessary for Better Place to seek to intervene and prevent any further similar occurrence. This weighs against a finding of unfair dismissal.

[53] Hanson says his dismissal was disproportionate to the conduct alleged, and relies primarily on the short nature of the exchange. The difficulty is that he does not admit the relevant conduct at all. Had his position been one of acknowledgement and remorse, the question of proportionality might have carried more weight. His denial, and the effect of his conduct on Johnson, satisfies me that dismissal was a proportionate response in context.

[54] Previous incidents involving Hanson’s workplace conduct were raised in the proceedings. The first incident, involving a ‘pen’, had previously been investigated and closed. The second incident was an alleged aggressive exchange between Hanson and his manager. Neither incident was raised with Hanson during the investigation into his conduct on 7 September 2018. He was not made aware that those incidents may have informed Better Place’s consideration of an appropriate disciplinary response to the events of 7 September 2018.

[55] The evidence of Turen was inconsistent on this point. He gave evidence that the only matter under consideration was the incident on 7 September 2018, but also agreed that Better Place took into account Hanson’s prior employment record in reaching the decision to dismiss. In my view, both incidents are likely to have provided context in the decision making process that led to Hanson’s dismissal. Hanson should have been put on notice of that fact and given an opportunity to respond. This was a denial of procedural fairness to Hanson. It weighs in favour of a finding of unfair dismissal.

[56] The Agreement contains a disciplinary procedure at clause 38. It sets out a process for dealing with disciplinary action, including warnings and dismissal. For “serious matters pertaining to conduct or performance” the employer may issue a “final warning” and for “serious and wilful misconduct” summary dismissal may occur. I am not satisfied that it has any relevant bearing on the disciplinary process adopted in relation to the events of 7 September 2018. It is a neutral consideration in this case.

[57] Hanson was paid three week’s wages in lieu of notice of termination. In the circumstances, it is arguable that Hanson’s conduct amounted to serious misconduct. The fact of payment in lieu of notice in my view weighs against a finding of unfair dismissal.

Conclusion

[58] Having considered each of the matters specified in section 387, I am not satisfied the dismissal of Hanson was harsh, unjust or unreasonable. Accordingly, I find Hanson’s dismissal was not unfair.

COMMISSIONER

Appearances:

M Champion of Counsel for the Applicant

A White of Counsel for the Respondent

Hearing details:

2019.

Melbourne:

April 3, 4.

Printed by authority of the Commonwealth Government Printer

<PR707659>

 1   AE899407 PR533253

 2   Fair Work Act 2009 (Cth), s.385

 3   Form F3

 4   Fair Work Act 2009 (Cth), s.388

 5   Fair Work Act 2009 (Cth), s.23

 6   Exhibit 1

 7   Exhibit 10

 8   A section 60I certificate is issued by family dispute resolution practitioners and deals with parties genuine efforts to resolve disputes through attendance at family dispute resolution sessions – see Exhibit 10

 9   Exhibit 1

 10   Exhibit 10

 11   Exhibit 10

 12   Exhibit 1

 13   Exhibit 10

 14   Exhibit 10

 15   Exhibit 10

 16   Exhibit 14

 17   Exhibit 10

 18   Exhibit 1

 19   Exhibit 10

 20   Exhibit 10

 21   Exhibit 1

 22   Audio file of hearing, 3 April 2019

 23   Exhibit 17

 24   Exhibit 15

 25   Audio file of hearing, 3 April 2019

 26   Audio file of hearing, 3 April 2019

 27   Exhibit 11, Attachment E

 28   Form F3

 29   Exhibit 11, Attachment A

 30   Exhibit 11, Attachment B