[2019] FWC 3500

The attached document replaces the document previously issued with the above code on 5 July 2019.

Paragraph numbering has been amended.

Associate to Deputy President Lake.

Dated 5 July 2019.

[2019] FWC 3500
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Michael Nicholaou
v
OZCARE
(U2019/1296)

DEPUTY PRESIDENT LAKE

BRISBANE, 5 JULY 2019

Application for an unfair dismissal remedy

Introduction

[1] On 7 February 2019 Mr Michael Nicholaou (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy in respect of his dismissal by Ozcare (Respondent).
[2] On 18 February 2019 the Respondent filed a response to the unfair dismissal application.
[3] The Commission held a number of conciliation conferences with the parties in an attempt to resolve the matter. Ultimately, these proved unsuccessful.
[4] Consequently the matter was listed for hearing.

Permission to be represented

[5] At the commencement of the hearing, the Respondent sought permission pursuant to section 596 of the Act to be represented by a lawyer. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just: see Warrell v FWC [2013] FCA 291.

[6] In Warrell v FWC the Federal Court held that:

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”. 1

[7] Section 596 of the Act provides:

“Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

[8] Having considered the written submissions made by the Respondent in support of it being given permission to be represented and after allowing the Applicant an opportunity to make submissions in reply on the matter, I ultimately granted permission for the Respondent to be represented. I was satisfied that this course of action would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The complexity in this matter primarily arose on the basis of a contested factual matrix between the parties. The Applicant disputed outright that he engaged in misconduct. The Respondent indicated that it intended on calling six witnesses or so to support its view that the misconduct did indeed occur. On this basis, I determined that the matter was sufficiently complex and the Commission would be assisted by the Respondent being represented to examine its witnesses in chief. Further, I was of the mind to consider that the Respondent being represented would ensure efficiency in the cross-examination of the Applicant so as to enable the Commission to adduce a consistent factual matrix to assist it in making its ultimate determination.

Conference or Hearing

[9] At the commencement of the hearing, the Commission also heard brief submissions from the parties about whether the Commission should conduct a determinative conference (section 398 of the Act) or a hearing (section 399 of the Act) in relation to the matter.

[10] Taking account:

“(a) any differences in the circumstances; and

(b) the wishes;”

of the parties to the matter, and considering whether a hearing would be the most effective and efficient way to resolve to the matter.”

[11] A hearing was ultimately determined as the more effective way to determine the matter.

[12] Given the number of witnesses and the time needed by the Respondent to cross-examine the Applicant it was agreed between the parties that a 2 day hearing on 23 and 24 May 2019 in Brisbane would be an appropriate amount of time to hear the matter fully.

The hearing

[13] At the hearing the Applicant was self-represented. The Applicant gave evidence on his own behalf and was cross-examined by the Respondent.

[14] At the hearing the Respondent was represented, with permission, by Mr Murray Procter of ClarkeKann Lawyers. The Respondent called 6 witnesses as follows:

[15] Efforts to conciliate the matter at the beginning of the hearing were not fruitful.
[16] The Commission heard final oral submissions from the parties on 24 May 2019, the last day of the hearing. No written final submissions were required from the parties, though the Applicant elected to file a final written submission on the final day of the hearing with the Commission.

Background

[17] I now provide a brief outline of my findings of fact in this matter. This is obtained from facts that are either not in dispute or taken from the documentary evidence before the Commission.

[18] The Applicant commenced working for the Respondent in early 2011, transitioning from what the Applicant recounts was a successful military career that included a posting in Iraq. During his time working for the Respondent the Applicant worked as a Support Worker and in more recent times, and until the date of his dismissal, as a Senior Support Worker. The Applicant worked throughout his employment at the Ozcare Homeless Hostel (the Hostel) in South Brisbane.

[19] The Respondent is a large employer in the Health and Human Services industry, employing approximately 3000 employees. The Respondent operates the Hostel to provide temporary accommodation to disadvantaged men.

[20] The reason relied upon by the Respondent in terminating the Applicant was an incident alleged to have occurred at the Hostel on the evening of 21 December 2018. It will be necessary to return and make appropriate findings in relation to what occurred on this evening later.

[21] On 24 December 2018 the Applicant met with Ms Lisa Marriage, Acting Business Operations Manager, and Mr Robert Murray, Acting Coordinator, to discuss the allegations that had been made to them about the Applicant’s conduct on the evening of 21 December 2018.

[22] On 3 January 2019, by way of letter, the Applicant was asked by the Respondent to respond to various matters relating to events which were alleged to have taken place on the evening of 21 December 2019 while the Applicant was working at the Hostel.

[23] The 3 January 2019 letter stated:

“Michael, we are now giving you an opportunity to respond to the following:

On Friday 21.12.2018 I was notified that you had been involved in an argument with Colin Goldsmith, Support Worker and had allegedly threatened physical violence towards Colin on two occasions. The details of this are as follows:

  You were directed by Rob Murray, Acting Coordinator to complete an intake with a new resident before you left duty for the evening. You later called Colin on the walkie talkie and told him to complete the second intake and allegedly your language was very aggressive.

  Colin informed you that his co-worker Sean Wilson, Support Worker was still doing an intake and that he was looking after the rest of the Hostel, so did not have the capacity to do an intake. Colin also told you that Rob Murray had told him that that you were to complete the intake. At this point you then allegedly screamed down the walkie talkie in a very aggressive tone that “I am the fucking Senior Support Worker and I am fucking telling you to do the intake”.

  At 6.50pm you called Colin again on the walkie talkie and asked if he had rung the Co-ordinator to which he replied that he had. Again, you allegedly yelled down the walkie talkie using aggressive language and saying “that there was something fucking wrong with you and you have issues”.

  At 8.30pm Colin went to your office to see if you needed assistance with the labels or forms for the intake. Again, you were allegedly extremely aggressive and intimidating in both your body and verbal language. You allegedly said “stop trying to fucking suck up to me you arsehole you are a fucking prick get the fuck out of my office you piece of shit”. You continued to swear at Colin non-stop as he walked from your office.

  At xxx you called Sean down to your office to help print labels for the intake. When Sean walked into the office you allegedly said to him “Don’t bring Colin down here or I’ll knock him out”. Sean felt that your behaviour was unprofessional and was unsettled by the interaction.

  Colin has stated that he felt very threatened and upset with the barrage of foul mouthed, and aggressive abuse he received from you, his Senior Support Worker, which he said made him want to leave the premises for his own safety. Colin also stated that this was not the first time he had been treated like this by you.

  When Rob and I met with you on Monday 24.12.2018 you were asked three times to provide a written statement of your account of the situation with Colin, but you refused to provide this. You did however state “that in your opinion what had occurred on Friday 21.12.2018 was between two male adults and you were surprised Colin had put anything in writing”. You also stated that you believe that “Colin instigated the altercation” and that you were the one “trying to de-escalate Colin”. You further added that you “did not threaten Colin in anyway on Friday evening and nor did you say anything to Sean regarding Colin”.

  Michael, you have been spoken to numerous times over the course of your employment with Ozcare regarding your unsatisfactory behaviour in the workplace, particularly in relation to the way that you interact with colleagues and clients. Specifically, only recently on 20.11.2018 Rob Murray had to speak to you regarding an incident involving yourself and a resident, Ashley Cobbo, where instead of trying to de-escalate a volatile situation you continuously argued with him which resulted in the situation escalating so much that the resident became aggressive.”

(Typographical errors from original included)

[24] The Applicant responded to the Respondent’s letter of 3 January 2019, by way of email, on 4 January 2019 and stated:

“ I Michael Nicholaou, Acting Senior Support Worker, South Brisbane Men’s Hostel (Social Inclutions) Saint Vincent De Paul’s, have been a loyal upstanding Employee who has been appointed Full Time employment for over 7 years.

Through my employment I have achieved great rewarding goals and experiences and feel I have help change troubled homeless men, women and children’s lives for the better. On a number of occasions I have received compliments either verbally, by phone or in writing which I have passed on to the Co-Ordinator at the time or Business Operations Manager.

I have previously been employed by the Department of Defense as a Senior Soldier now a Vetran and Inactive Reservist and trained to the highest standards of conduct and service. I have completed on a number of occasions Policy and Procedures (Business Rules), Work Place Bullying and Professional Boundaries training and am well aware of the severity of these matters.

The mentioned allegations from Colin Goldsmith (Support Worker) are both false and misleading. As our previous discussions in our last two brief meetings I never threatened Colin Goldsmith whatsoever I did not get out of my seat. I have always been professional towards him. I Stated to Colin “why are you here if you don’t want to work and help people.”

I stated to Rob Murray on the phone that Colin did not appear to be busy but looked like he was on his phone conducting personal affairs and on Facebook on the night station Computer which was regular practice for Colin during work hours.

After a brief discussion with Rob Murray I explained to Rob that I was busy doing welfare checks and resolving a number of issues on level 5 but would make time to complete a full comprehensive intake then complete my duties before completing my shift.

I then contacted resident [name redacted] who was in the CourtYard after he presented to the hostel at 2030 hrs. I as a Senior Support Worker completed a comprehensive intake and allocated him a dorm area which was empty and available in Support Worker Colin Goldsmiths dorm area.

2130hrs I completed the full induction process with all Ozcare paper work signed and dated, information inputed onto SHIP and QHIP and allocated the new resident a dorm area and explained the service in detail. Provided linen and a pillow and showed him to his dorm area.

After completing of the intake I then completed my duties on Level 5 ie (Welfare Checks & Outcome Star Smart Goal Plans) and secured the office a proceeded to the nightstation for a handover where Sean was by himself, so I informed Sean that the intake was completed and by that time Colin appeared walking into the night station behind me and sat on the computer chair with his back towards me near the after 1730 hrs side door release button on the right. I mentioned to Colin I had completed the intake and I had allocated [the resident] to himself and Tetera for support. Colin stated that’s “ok”.

Between 2145hrs – 2200hrs I left the property from the side door with no problems.

My rostered hours are from 1300-2130 hrs Monday – Friday.

As previously discussed Re Colin Goldsmiths inappropriate behaviour at South Brisbane Ozare Hostel.

The mattes mentioned have occurred since his transfer from Cairns Hostel…”

(Typographical errors from original included)

[25] The Applicant provided an additional response to the Respondent with the subject line “Additional issues for Colin GOLDSMITH”, which made further allegations concerning Mr Goldsmith. I have not reproduced those allegations in this decision because this is not an inquiry into Mr Goldsmith’s conduct and the allegations are not directly relevant to a matter that the Commission is required to determine in considering the Applicant’s substantive application.

[26] The Applicant was dismissed on 18 January 2019 for misconduct. Upon termination the Applicant was paid four weeks’ salary in lieu of notice. This was not required to be paid. The dismissal was effected by way of letter dated 10 January 2019 and stated inter alia:

“Ozcare has considered your responses and determined, based on the evidence presented, that the allegation of misconduct put to you in the letter dated 3 January 2019 is substantiated.

Given the above information, this letter is to confirm that the Chief Executive Office has approved the termination of your employment, effective immediately.

Arrangements will be made to pay any monies owing to you into your nominated bank account. This will include four (4) week’s payment in lieu of notice and any accrued annual and long service (where applicable) leave entitlements.”

Protection from Unfair Dismissal

[27] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.
[28] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[29] There is no dispute that the Applicant has completed at least the minimum employment period, earned less than the high income threshold and is covered by an enterprise agreement; the Ozcare Enterprise Agreement 2015. Consequently, the Commission is satisfied that the Applicant is a person protected from unfair dismissal.
[30] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.

Was the dismissal unfair?

[31] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances as set out at section 385 of the Act are made out. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[32] It is not in dispute that the Applicant has been dismissed. The Respondent is not a small business and therefore the Small Business Fair Dismissal Code is not applicable. It is also not alleged that the dismissal was a case of genuine redundancy. Therefore the only matter for me to determine under this section of the Act is whether the dismissal was harsh, unjust or unreasonable.

Harsh, unjust or unreasonable

[33] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at section 387 of the Act.

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.”

[34] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“.... [i]t may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[35] I must therefore consider each of these criteria – harsh, unjust or unreasonable – in reaching my conclusion. 2
[36] The Applicant’s position was that he was a high achieving employee of the Respondent. Further, the Applicant submitted that he did not engage in the misconduct that he is alleged to have committed and that he was otherwise denied procedural fairness.

[37] The Respondent submitted that the Applicant’s performance history is not entirely clean. Further, the Respondent submitted that the Applicant did engage in the conduct alleged and this misconduct was a valid reason for dismissal and that the process of terminating the Applicant’s employment was procedurally fair.
[38] I will now consider each of the criteria at section 387 of the Act separately.
Valid reason - s.387(a)
[39] The Commission must consider whether there was a valid reason for the dismissal of the Applicant and it is well established that it need not be the reason given to the Applicant at the time of the dismissal. 3 To be a valid reason, the reason should be “sound, defensible and well founded”4 and should not be “capricious, fanciful, spiteful or prejudiced.”5
[40] It is convenient to commence with the Respondent’s evidence regarding the events of 21 December 2018.

[41] Mr Colin Goldsmith provided evidence by way of a witness statement. In relation to the incident on the date in question, Mr Goldsmith stated:

“On Friday 21 December 2018 I started my shift at the Hostel at 2:00pm. I was scheduled to work until 10:30pm that night.

At around 2:30pm to 3:00pm, Acting Coordinator Robert Murray (“Rob”) informed staff at the Hostel that we would be receiving intake of two new clients at some point later that afternoon/evening. Rob directed the two support workers rostered on at the Hostel that afternoon, being myself and Sean Wilson (“Sean”) to complete one of the intakes. Rob instructed Michael, a senior support worker at the Hostel, to complete the other intake.

The first client intake arrived at the Hostel at around 4:00pm. Sean and I decided that he would complete the first intake while I would assist throughout the Hostel specifically with overseeing the dinner service.

At around 5:30pm I noticed Michael had left the Hostel. I assumed he was purchasing his dinner from a nearby food outlet. Michael was off-site for about an hour. Upon his return at about 6:30pm I spoke to Michael over the Hostel’s two-way radio system and reminded him that the second intake would be arriving shortly for him to complete. In an assertive manner, Michael replied over the radio and directed me to complete the second new resident intake.

I called Michael back on the radio and informed him that I did not have capacity to complete the second intake as Sean was still completing the first intake and I was covering duties within the rest of the Hostel such as completing client exit reports and assisting with the dinner service.

I reminded Michael that Rob had instructed him earlier to complete the second intake. In response to this Michael, over the radio, yelled at me words to the effect “I am the fucking senior support worker and I am telling you to do the intake”.

Shortly afterwards, at around 6:45pm, I called Rob and explained to him my interaction with Michael and informed him that Michael was acting in an aggressive manner. Rob told me that he had instructed Michael to complete the second intake and that I was to remain completing the tasks and duties I was currently performing.

I assume Rob must have then called Michael and spoken to him about doing the intake, because at around 7:00pm Michael again contacted me over the two-way radio and asked me if I had called Rob regarding the intakes, to which I replied that I had. Again, in an aggressive manner, Michael yelled at me through the radio saying words to the effect “there is something fucking wrong with you. You’ve got some issues”.”

After the second client arrived and the intake needed to be completed, Mr Goldsmith undertook some of his other duties and then went to the Applicant’s office at about 8pm.

[42] Mr Goldsmith then recalled the following:

“I arrived at Michael’s office and asked him if he required assistance with the intake. Michael immediately became hostile towards me, displaying intimidating body language. In a raised voice, Michael said to me words to the effect “stop trying to suck up to me you arsehole. You are a fucking prick, get the fuck out of my office you piece of shit.” Startled, I immediately left Michael’s office. Michael continued to yell obscenities and insults at me as I walked from his office and down the hall. At this point I was contemplating leaving the premises for my own safety.

I returned to the support workers’ work station and informed my colleague Sean about the interaction I had just had with Michael. Shortly after telling Sean this, the phone in the work station rang. Sean picked up the phone and had a brief conversation with the staff member on the other end of the line who I understood was Michael asking Sean to come into his office to see him.

About 10 to 15 minutes later, Sean called me at the work station phone from Michael’s office. Sean told me that he and Michael were having difficulty printing some labels to be attached to the file relating to the client who had presented for intake. At Sean’s request I printed the labels for Michael from the work station.

Shortly after, Sean returned to the work station from Michael’s office and informed me that Michael had told Sean that I wasn’t to go [to] Michael’s office again. Sean told me that Michael had said to him words to the effect “don’t bring Colin down here or I’ll knock him out”. At this point I again felt threatened, targeted and concerned for my safety and wellbeing.”

[43] Mr Goldsmith was cross-examined by the Applicant. Mr Goldsmith maintained that abusive allegations regarding the Applicant’s behaviour were not out of character for the Applicant 6 but conceded that the Applicant did not abuse people weekly, or even daily.7

[44] The Applicant did not directly challenge Mr Goldsmith’s evidence regarding the interaction recounted above. However, the Applicant did challenge Mr Goldsmith’s assertion that he was concerned for his wellbeing or safety as a result of the interaction. Mr Goldsmith accepted that he had been in close proximity to the Applicant following the incident 8 but stated that he did this because he had a colleague with him and therefore “felt safe”.9

[45] Mr Sean Wilson, being the Sean Wilson referred to in Mr Goldsmith’s statement, also gave evidence in these proceedings by way of a witness statement. Mr Wilson relevantly stated:

“I worked a shift at the Hostel on the afternoon of Friday 21 December 2018. Also working that day was Acting Coordinator Rob Murray, Senior Support Worker Michael and Support Worker Colin Goldsmith.

In the afternoon, at around 3:00pm, Rob advised us that we would be receiving two new clients at the Hostel later that day and that the intake process would need to be completed for both. Rob directed myself and Colin to complete the first intake and instructed Michael to complete the second. Before Rob left for the evening at around 3:30pm, Colin and I confirmed with him that Michael would be completing the later intake.

At around 6:30pm, Colin reminded Michael over the Hostel’s two-way radio system that he was due to complete the upcoming intake, to which Michael replied that he was currently busy and would not be able to complete the intake. Colin responded saying he did not have capacity to complete the intake either as I was completing the first intake and he was assisting with the dinner service. Colin and Michael went back and forth discussing the intake until Michael snapped, speaking loudly into the radio words to the effect “I’m the senior support worker, you have to do the fucking intake”.

Hearing the back and forth between Michael and Colin over the radio made me feel uncomfortable. I thought Michael’s response was unnecessary and an overreaction.

After Michael’s outburst over the radio, Colin and I agreed we should call Rob regarding the issues we were having with Michael and the intake process. Colin spoke with Rob over the phone about the issue, to which Rob replied that he would call Michael and discuss the matter with him.

A few moments afterwards, we heard Michael on the radio again. Michael was furious at Colin for ringing Rob regarding his resistance to complete the intake. Michael said to Colin words to the effect “you have issues for calling Rob”.

Some time later at around 8:00pm, Colin approached me at the support workers station and told me that Michael had become aggressive telling Colin to leave his office while swearing at him and yelling abuse at him. Hearing this again made me feel uncomfortable. Swearing and colourful language is not uncommon within the Hostel but it usually forms part of the jokes and banter and is seldom directed at anyone in particular, and never threatening.

Shortly after 8:00pm, Michael called me over the two-way radio asking for assistance with the second intake, specifically the printing of labels for the new client’s file. As the Hostel had recently updated its label printers, neither I nor Michael were completed across the new process for printing labels.

Both Michael and I knew that Colin was able to operate the label printer so I suggested to Michael that we get Colin to help. In response to this, Michael said words to the effect “don’t bring Colin down here or I’ll knock him out”.”

[46] Mr Wilson then recalls reporting this to Mr Goldsmith and collectively they relayed what had occurred to Mr Murray.

[47] Mr Wilson was cross-examined by the Applicant and accepted that he considered the Applicant of good character as a work colleague 10 but not on a personal basis.11 Mr Wilson accepted that the Applicant had assisted him throughout his employment, had helped train him and that it was a difficult environment to work in.12

[48] The Applicant directly put to Mr Wilson that he had conspired with Mr Goldsmith and Mr Murray to perpetuate his dismissal. 13 Mr Wilson responded that he thought that this proposition was “nonsense”.14

[49] The Applicant took Mr Wilson to his evidence regarding his uncomfortable feelings in relation to the Applicant’s initial response over the two-way radio. Mr Wilson clarified that he was uncomfortable “because [the Applicant] ignored a directive from [their] supervisor”. 15 The Applicant did, quite properly, put to Mr Wilson that he was “pretty sure about a few things…but… not sure about a number of things”.16

[50] Mr Maxwell Robert (Rob) Murray, also gave evidence in these proceedings by way of a witness statement. Relevantly, Mr Murray stated:

“I was scheduled to finish my shift at 3:00pm. At around 3:30pm, just before I left the Hostel to go home, I addressed a group of staff members, which included Colin and Michael, regarding the completion of the intake process for the two residents schedule[d] to arrive that afternoon/evening.

Specifically, I directed support workers Sean and Colin to complete one of the intakes between them, and I directed Michael to complete the other. I said to Michael words to the effect “let the boys (Colin and Sean) do one intake, but I’m going to need you to do the other one”.

Later that evening at around 7:00pm I was at home when [I] received a phone call on my mobile phone from Colin. Colin told me that Michael had directed him to complete the second intake, to which Colin had responded that he did not have the capacity at the time to complete the intake. Colin further informed me that upon his response to Michael, Michael had become aggressive and verbally abused him through the Hostel’s two-way radio system.

After speaking with Colin, I then called Michael to follow up on Colin’s complaint. I instructed Michael a second time to complete the second intake as Colin was busy working on other jobs around the Hostel. Michael told me he was too busy to complete the intake, saying words to the effect “you need to get them (Colin and Sean) to complete the intake – I’m too busy”.

I asked Michael exactly what was preventing him from doing the intake, however Michael did not elaborate any further on his capacity aside from reiterating that he was too busy. I was not provided any reason as to why Michael could not, or should not, complete the intake. I concluded my phone conversation with Michael after he reluctantly agreed to complete the intake.

At around 8:00pm I received a second call from Colin. Colin told me that Michael had been threatening him, firstly through verbal abuse that took place in Michael’s office and then by telling Sean that he would “knock in (Colin) out” if he saw him.

Colin told me that he did not feel safe on the Hostel premises with Michael around and that he may knock off early to go home. I responded by telling Colin he was welcome to go home early if he wanted.

At this point I also spoke to Sean, who confirmed Michael’s behaviour. Sean told me he was also slightly concerned for his wellbeing given that he was not certain he could rely on Michael to back him up in the event that a client altercation may arise, which is not an uncommon occurrence at the Hostel.”

[51] Mr Murray, in further examination in-chief at hearing, stated that he had heard the Applicant swear before, but not as much as anyone else. 17 Mr Murray stated that on occasion he would disagree that the Applicant is always “cool, calm and collected”, but that on occasion he was.18

[52] Mr Murray was cross-examined by the Applicant. Mr Murray accepted that he had not felt threated by the Applicant at all in any way. 19 Mr Murray did not accept that it had ever crossed his mind that it was a good opportunity to get rid of a Senior Support Worker to secure his own position.20 Mr Murray accepted that in his conversation with the Applicant, before the alleged incident, the Applicant said that he would do the second intake.21

[53] Mr Murray accepted that during the post-incident meetings the representatives of the Respondent had refused to document the Applicant’s statement for him, but did not accept that they had refused to document the meeting generally. 22 Mr Murray did not accept that either Mr Goldsmith or Mr Wilson was motivated by their own desires to secure their positions with the Respondent in pointing the finger at the Applicant.23 Mr Murray accepted that he had no formal qualifications in investigations but stated that he had done investigations for local councils for up to nine years24 although in his current position with the Respondent, the investigation in respect of this matter was his “first proper one25.

[54] Again, the Applicant made a passing comment during his cross-examination of Mr Murray that he was “very good at remembering some things, but some things, not”. 26 The Applicant did not, however, actually put this to Mr Murray for his response but rather noted this as an aside during his cross-examination of Mr Murray.

[55] Ms Lisa Marriage, Acting Business Operations Manager, also gave evidence, some of which is relevant to the day of the alleged incident. Ms Marriage’s evidence is that on the day of the alleged incident she was attending a private function. At or around 8:30pm she received a phone call from Mr Murray. During this call Mr Murray conveyed to Ms Marriage that the Applicant had been involved in an incident with Mr Goldsmith, which including a threat of physical violence on “two occasions”. 27 Ms Marriage said that one of those threats of physical violence included “threats to punch [Mr Goldsmith] in the head” if he entered the Applicant’s office.28

[56] Ms Marriage asked Mr Murray to get the employees involved in the incidents of the evening of 21 December 2019 to complete written statements before the end of their shifts and to contact her if there were further issues, otherwise it would be dealt with on Monday 24 December 2018. Further to this request, at 10:14pm, Ms Marriage received an email from Mr Goldsmith. In this email Mr Goldsmith recounted his version of the alleged incident. Mr Goldsmith’s email was attached to Ms Marriage’s statement in these proceedings.

[57] On Monday 24 December 2018 Ms Marriage received further emails regarding the incident from Mr Tetera Tama and Mr Sean Wilson. Both Mr Tama and Mr Wilson conveyed their version of relevant events.

[58] The Applicant did not provide evidence in-chief about what he says happened on the evening of 21 December 2018. In response to directions issued by the Commission, the Applicant took the opportunity to detail his time in the military, his efforts to re-enter the workforce after his military career and air his many grievances about the Respondent and its employees past and present. Indeed, the Applicant maintained in cross-examination that the Respondent is a “disgraceful organisation…” 29 The Applicant maintained that he sought reinstatement into his position should he succeed in this application but that he “wouldn’t plan on staying there if [he] went back”.30

[59] Given the state of the Applicant’s evidence entering into the hearing of his application it is perhaps unsurprising that the entirety of the first day of Hearing was consumed by cross-examination of the Applicant. The Respondent took this opportunity to confirm for the Commission the Applicant’s precise version of events which occurred on the evening of 21 December 2018. The Applicant was also cross-examined on his portrayal of himself as a model employee who was always “cool, calm and collected” among other things.

[60] Specifically on this point, the Applicant was taken to an incident that occurred in 2015. A performance meeting occurred with the Applicant regarding this incident on 10 September 2015. The following exchange occurred in cross-examination:

“…Turn over the page there you see it says a performance meeting record and it has been put in your name there under the Employee Name. The date is 10 September 2015. Could I just give you an opportunity to read through that document?  -I already have read through that, Mr Procter, and, well, I don’t see the relevance of a 2015 - - -

You’ll have an opportunity to make submissions, Mr Nicholaou, you just need to answer the question?  -Okay, Mr Procter, no worries.

Valerie Fleming - who was she?  -At the time she was the assistant coordinator, I believe.

See under the heading, “Communication and teamwork, unprofessional behaviour, 8 September 2015.” Allegation one, second dot point: “Jason states that you said you and Mark knew what was happening with Nathan” - Nathan being a client - “and Jason did not need to know anything. Jason also states that you said he was abnormal. Jason states that you said you would take him out the car park and bash him”?  -That’s ridiculous, Mr Procter.

I’m just taking you through the document. Then at 11.55 am it says you and Jason were witnessed at the front reception engaging in a heated argument, voices elevated whereby Les had to intervene. 3:42 pm: “When asked to come and speak to me” - that’s Valerie - “about this incident, you informed me in front of Les that you did not want to talk about this with me.” Those were allegations that were put to you in a performance meeting on 10 September 2015. Do you accept there were allegations put to you in that meeting?  -I do accept they were allegations, Mr Procter, and merely allegations.

Yes, that’s right. Now if I can ask you to turn the page, please, to skip through allegations two and three. Step two, which is on the next page, says: ‘Meet with the employee document, employee’s response”?  -Sorry, Mr Procter, what page are we on to now?

It’s 4 of 5 on the performance meeting record numbering, which is at the bottom of the page?  -4 or 5 of - - -

4 of 5?  -4 of 5, okay, yes

At the top it says, “Performance meeting record, step two.” Are you on that page?  -I am, Mr Procter.

Under the heading, “Unprofessional behaviour”, there, which is at the top, this document says: “Michael stated that he reacted to Jason calling him a derogatory term and using profanities. Michael stated that he did state he will take out the back and sort it out - sorted - but this was due to Jason calling him names and swearing at him. He said the volume of the argument between the two would be just a bit louder than normal talking volume but was not raised voices. He stated that he was disappointed that it came to this as he feels it was now all sorted with him and Jason and he wanted to address the situation as two grown men.” You accept that that was your response, that those were your words there?  -I do, Mr Procter. I do recall, with respect, it was in 2015. There’s a number of different scenarios that have happened since then. I do vaguely recall - - -

You agree that that’s a correct record?  -That statement, that was - it was merely just a discussion to come at the back, outside of public view to resolve it civilly, is all I was saying. I wasn’t to assault him or any manner in which I would never do in a workplace; would never be in my nature to do anything like that in the workplace. I find it very offensive, Mr Procter, that these allegations are - - -

So the allegation was that you said you would take him out the car park and bash him and you said you didn’t agree. But you did say that you would take him out the back and sort it. So you agree that that’s what you said?  -I agree, Mr Procter. I said to go out the back and sort it out.

And you also said - talked to him about it as two grown men?  -That’s correct, Mr Procter.

All right. You see there, “Additional comments?” Halfway down there it says: “Allegation one upheld. But it is noted that Michael had a different response to the allegation.” Then under step four, “Specific action: reread the code of conduct, sign and return to assistant coordinator.” So I put it to you that this is a record of an allegation of what’s described here as unprofessional behaviour which you responded to. You made some concessions about what went on. You disagreed with some of the language that was used. Management nevertheless upheld the unprofessional behaviour and sanctioned you by directing you to reread the code of conduct, sign and return to the assistant coordinator.” Do you accept that?  -I never signed any of these documents, just to clarify, Mr Procter. I do have - I am aware that these documents were written out but I don’t say I never agreed or signed to any of these documents.

Okay, so across the page there where it says, “Received signed document on 11 September 2015” - - -?  -It wasn’t signed by me, Mr Procter. I don’t see my signature on any of these.

No I accept - I don’t see your signature. But you’re saying that you never signed anything?  -That’s correct, Mr Procter. I never agreed to signing anything because the information was incorrect and defaming.

Defaming?  -Correct.” 31

[61] One can see the similarity between the allegations of the 2015 incident and the one that is the genesis of this application.

[62] The Applicant accepted that he had completed the Respondent’s online course in relation to workplace bullying in 2015 and 2018. 32 The Applicant went further and stated that he had also completed similar courses through the Department of Defence, through Queensland Rail and a “number” of other organisation at which he has worked.33 The Applicant accepted that he is “[W]ell aware34 of what bullying is.

Consideration of events on evening of 21 December 2018 leading to the dismissal

First event – failure to follow lawful and reasonable direction of Mr Murray

[63] On the evidence put before me the Applicant was directed lawfully and reasonably to complete one of the two intakes on the evening of 21 December 2018. It is apparent that the Applicant attempted to delegate his intake responsibilities to Mr Goldsmith, which was contrary to the direction set by Mr Murray, the Applicant’s supervisor. Therefore on the evidence I have before me, on balance, I consider that the Applicant did not follow a lawful and reasonable direction from his supervisor with respect to completing an intake.

Second event – abusing Mr Goldsmith at or about 6:50pm

[64] At or around 6:50pm on 21 December 2019, the Applicant called Mr Goldsmith on the walkie-talkie and sought confirmation that he had rung the coordinator, Mr Murray, to outline that the Applicant had refused to complete an intake. Mr Goldsmith confirmed that he had spoken to Mr Murray. The Respondent led evidence that the Applicant yelled down the walkie-talkie in an aggressive time “saying” to Mr Goldsmith that there was something fucking wrong with [him] and [that he has] issues.”

[65] In regard to this event, I have already indicated a preference with the Respondent’s evidence that the Applicant had attempted to delegate work to Mr Goldsmith, contrary to his supervisor’s directive. The evidence presented to the Commission then supports the view that Mr Goldsmith then made a phone call to the off-site manager, Mr Murray, to report this incident. Following learning about this telephone call, the evidence evinced suggest, on balance, that the Applicant then verbally abused Mr Goldsmith over the walkie-talkie. This is corroborated by Mr Goldsmith’s witness statement and the evidence of Mr Goldsmith’s colleagues who also heard this exchange. I can therefore conclude, on balance, based on the evidence before me that the Applicant abused Mr Goldsmith over the walkie-talkie in an aggressive and threatening manner.

Third event – abusing Mr Goldsmith at or about 8:30pm

[66] Later that evening at or about 8:30pm, Mr Goldsmith went to the Applicant’s office to see if the Applicant needed assistance with the labels or forms for the intake. Mr Goldsmith only went there because he was in close proximity to another colleague and that this made him safe to go near the Applicant. I am minded to accept this evidence. The Respondent submitted and it was corroborated through evidence of Mr Goldsmith that the Applicant said words to the effect of “stop trying to fucking suck up to me you asshole, you are a fucking prick, get the fuck out of my office” to Mr Goldsmith when he was in the Applicant’s office. Whilst the precise nature of what was said and how precisely this was conveyed to Mr Goldsmith is a factual dispute as between the parties, I am satisfied again that, on balance, that this likely an incendiary conversation was instigated by the Applicant. I have taken this view based on the evidence put before the Commission. I have also taken the view on the basis that I viewed the Applicant’s evidence less credibly than I did Mr Goldsmith’s in the recollection of this encounter, without understanding or finding fact in precisely what was said. I have therefore determined that this third event, on balance, occurred.

Fourth event – vicarious threat to Mr Goldsmith via Mr Wilson

[67] Following the third event, the Applicant called Mr Wilson into his office to assist him in printing labels for the intake. When Mr Wilson was in the office and assisting the Applicant in this preparation of the labels, the Applicant was alleged to have said words to the effect of: “don’t bring Colin [Mr Goldsmith] down here or I’ll knock him out.” These words are submitted by the Respondent to have made Mr Wilson feel deeply unsettled. This was corroborated in the witness statement of Mr Wilson. Mr Wilson’s evidence stood up in cross-examination. Once again, on balance, I prefer the evidence provided by the Respondent with respect to this event. This was further corroborated by the fact that Mr Wilson felt agitated enough to share this encounter with another colleague, Mr Tama. The fourth event confirms a pattern of aggressive and threatening behaviour from the Applicant over the course of the evening of 21 December 2019.

[68] Each of the Respondent’s witnesses presented as generally credible and reliable. Each maintained relatively consistent evidence in relation to their perspective of what occurred on the evening of 21 December 2018. Appropriate concessions were made by the witnesses but otherwise their evidence did not change. Conversely, the Applicant’s blanket denials were not credible. Where the evidence of the Applicant conflicts with that of the other witnesses, I prefer the evidence of the other witnesses.

[69] An example of why this is the case is that although the Applicant generally gave his evidence in a calm and considered manner, he was unnecessarily evasive and deflected throughout being cross-examined. Despite the Applicant accepting that he had completed the Respondent’s workplace bullying course, 35 volunteering that he had also completed the course at “a number” of different organisations (including the Department of Defence)36 and that he was “[W]ell aware” of what bullying is37 and that he is “very, very, very clear38 of the policies and procedures of Ozcare, the Applicant refused to explain what he understood bullying to mean when directly asked. Instead, the Applicant deflected the question to the Respondent’s polices and, at one point, responded:

“You have the HR officer behind you. You could ask her if you like.” 39

[70] This approach continued, as follows:

“What do you understand?  -What I understand - everything as best as possible, Mr Procter. What is - is that a loaded question or” 40

[71] Ultimately the Applicant was forced to concede that to “put it mildly” 41 the Respondent has a zero tolerance with respect to bullying. This obstructive approach during cross-examination did not create a favourable view of the Applicant in giving his evidence. The Applicant accepted that some of Mr Wilson’s evidence was not a lie42 but maintained that Mr Wilson was lying in his evidence at points that conflicted with the Applicant’s version of events.43

[72] Ultimately, the Applicant did not concede any of the allegations made against him. The Applicant maintained that the witnesses were lying and were concocting their stories against him. 44 The Applicant maintained in his evidence that he did not swear in the exchanges between himself and Mr Goldsmith, and that generally he does not swear over the two-way radios, “unlike some other staff there”.45 The Applicant did however concede that “I was furious”.46

[73] The Applicant stated during cross-examination that he did not consider Mr Wilson was a trustworthy person, because of his conduct towards the Applicant – that is, because he ultimately supported Mr Goldsmith’s version of the events in question.

[74] In determining that the four events occurred as outlined above on the evening of 21 December 2018, on balance and on the evidence before me, I have ultimately concluded that the Respondent did have a valid reason to terminate the Applicant’s employment. This was based on Respondent’s evidence being more credible than the Applicant’s on this point.

Notification of the valid reason - s.387(b)

[75] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 47 in explicit terms48 and in plain and clear terms.49 In Crozier v Palazzo Corporation Pty Ltd50 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 51

[76] Ultimately, on this matter, I am satisfied that the Respondent put to the Applicant the reasons for his dismissal in explicit, plain and clear terms in the show cause letter of 3 January 2019 and then subsequently in the letter of termination dated 10 January 2019. I am also minded, having heard the covert recording of the termination meeting of 18 January 2019, that Mr Brett Warhurst communicated the reasons for the Applicant’s termination during that meeting.

Opportunity to respond - s.387(c)

[77] An employee must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 52
[78] Ms Marriage, the Respondent’s Acting Business Operations Manager, along with Mr Murray, the Respondent’s Acting Coordinator, conducted a meeting with the Applicant after the incident and requested that he make a written statement regarding his version of events with respect to the evening of 21 December 2019. The Applicant refused to comply with this request. His refusal to participate in and cooperate with the investigation left the Respondent in the position of having to determine, based on statements of the employees directly impacted, whether the events on balance, as alleged in the complaints of Mr Goldsmith and Mr Wilson, had occurred. In a show cause letter provided to the Applicant on 3 January 2019, it was put to the Applicant that on balance the events alleged had been substantiated and he was invited to respond to this show cause letter.

[79] The Applicant elected to do so on 4 January and again on in a subsequent communication to the Respondent. I am therefore satisfied that this criterion is met.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[80] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[81] It appears from the Applicant’s evidence that he was accompanied by a solicitor at the final termination meeting. 53 It also appears that the Applicant covertly recorded that meeting, apparently on the advice of his legal representation.54

[82] It is clear that throughout the disciplinary process and at the termination meeting that the Applicant was permitted to have a support person present. I am satisfied on this basis that the dismissal was procedurally fair.

Warnings regarding unsatisfactory performance - s.387(e)

[83] The Applicant was dismissed on the basis of misconduct, and not unsatisfactory performance. This criterion is therefore not relevant in the present matter.

Impact of the size of the Respondent on procedures followed - s.387(f)

[84] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
[85] The Respondent is a large employer with dedicated employees who understand human resource management practices and procedures. I am satisfied that proper procedures were followed, however, in any case this is not a material consideration.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[86] For the reasons specified above this is again not a material consideration to the present case.

Other relevant matters - s.387(h)

[87] The Commission must take into account any other relevant matters in considering whether is satisfied that the dismissal was harsh, unjust or unreasonable. Whether the dismissal was proportionate relative to the conduct is a matter to be considered under this provision.

[88] I am satisfied that the dismissal was proportionate to the conduct.

[89] I am further satisfied that based on the lack of remorse and contrition demonstrated by the Applicant, this weighed against the dismissal being harsh or disproportionate to the conduct after the allegations were substantiated.

Conclusion

[90] After careful consideration of all the evidence, I have found that there was a valid reason for the dismissal and I am satisfied that the Applicant was afforded procedural fairness in the disciplinary and termination process.
[91] The Applicant did not present a coherent and alternate view of what happened on the evening of 21 December 2018. I found that the Respondent put it well when it summarised the Applicant’s positive evidence as a ‘Game of Thrones’ theory. In short, the Respondent submitted, and I am minded to agree, that the only alternate theory the Applicant provided in response to the weight of evidence against him was that there existed a conspiracy in relation to the termination of his employment. The Applicant submitted that a number of employees stood to benefit if the Applicant was dismissed and they together hatched and contrived a story and then corroborated their evidence, on oath, to see this plan though. I do not find this theory plausible on the consistency and credibility of the Respondent’s witnesses and their evidence that was put to me.

[92] My general view is that the Applicant did not present as a reliable witness. He was not direct in answering questions put to him and frequently confused what actually happened with his thoughts and reflections on the matter. This was not helpful for him in constructing the factual basis for his submissions. It is not to say that he did not maintain a genuine belief that the Respondent dismissed him for a non-valid reason. It is to say that this genuine belief was profoundly misguided.

[93] I dismiss the application for an unfair dismissal remedy. An order to that effect will be issued with this decision.

tle: Lake DP - Description: Seal of the Fair Work Commission with member's signature

DEPUTY PRESIDENT

Appearances:

Mr Michael Nicholaou for the Applicant (himself)

Mr Murray Proctor for the Respondent

Hearing details:

23 and 24 May 2019 in Brisbane

Printed by authority of the Commonwealth Government Printer

<PR708526>

 1   Warrell v FWC [2013] FCA 291 at [24].

 2   Sayer v Melsteel [2011] FWAFB 7498.

 3   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 4   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 5   Ibid.

 6   PN1184 to PN1186.

 7   PN1187 to PN1188.

 8   PN1212.

 9   PN1213.

 10   PN1052 to PN1053.

 11   PN1054.

 12   PN1054 to PN1059.

 13   PN1062.

 14   PN1062.

 15   PN1068 to PN1071.

 16   PN1092.

 17   PN1365 to PN1367.

 18   PN1368 to PN1369.

 19   PN1393 to PN1400.

 20   PN1400 to PN1406.

 21   PN1420 to PN1423.

 22   PN1451 to PN1455.

 23   PN1456 to PN1463.

 24   PN1466 to PN1469.

 25   PN1549.

 26   PN1474.

 27   Statement of Ms Lisa Marriage at paragraph 9.

 28   At 11.

 29   PN160.

 30   PN163.

 31   PN174 to PN190.

 32   PN204 to PN206.

 33   PN206.

 34   PN207..

 35   PN205 to PN206.

 36   PN206.

 37   PN207.

 38   PN211.

 39   PN210.

 40   PN213.

 41   PN214.

 42   For example at PN223 to PN228.

 43   For example at PN229 to PN232.

 44   For example, PN233.

 45   PN256.

 46   PN259.

 47   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 48   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 49   Previsic v Australian Quarantine Inspection Services Print Q3730.

 50   (2000) 98 IR 137.

 51   Ibid at 151.

 52   RMIT v Asher (2010) 194 IR 1, 14-15.

 53   PN82 to PN84.

 54   PN140.