| [2020] FWC 2819 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leo Bertos
v
Northern NSW Football Limited
(U2020/1227)
DEPUTY PRESIDENT SAUNDERS |
NEWCASTLE, 29 MAY 2020 |
Application for relief from unfair dismissal – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
Introduction
[1] Mr Leo Bertos is a former professional footballer. He has represented his country (New Zealand) and played professionally at a range of clubs in the United Kingdom, Asia, Australia and New Zealand. In 2017, Mr Bertos was employed on a full time basis by Northern NSW Football Limited (Northern) as a Technical Advisor. Northern is the governing body of football throughout northern New South Wales, responsible for the growth, development and promotion of the sport of football in that region.
[2] With effect from 2 December 2019, Northern appointed Mr Bertos to the role of acting Technical Director. He continued to work in that full time role until his dismissal on 15 January 2020. The catalyst for Mr Bertos’s dismissal from his employment with Northern was his decision to accept the paid Head Coach role at the Weston Football Club (Weston FC), one of the clubs that competes in the National Premier League (NPL) NNSW, which is Northern’s top flight competition. Mr Bertos contends that his dismissal was harsh, unjust and unreasonable. Northern denies those allegations.
Hearing
[3] I conducted a hearing, by video conference, on 7 May 2020. Mr Bertos gave evidence, as did Mr David Eland, Chief Executive Officer of Northern, and Mr Peter Haynes, Head of Football of Northern.
[4] Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the Application.
[5] There is no dispute between the parties and I am satisfied on the evidence that:
(a) Mr Bertos’s application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b) Mr Bertos was a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to Mr Bertos’s dismissal; and
(d) Mr Bertos’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
[6] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Bertos’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
General principles
[7] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3
[8] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).5
[9] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.6 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7
[10] The employer bears the evidentiary onus of proving that the conduct on which it relies took place. 8 In cases where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.9
Alleged valid reason
[11] Northern contends that it had a valid reason for Mr Bertos’s dismissal. It submits that the valid reason was Mr Bertos’s conduct of placing himself in a position of conflict and indeed opposition between his duties and obligation owed to Northern and the duties and obligation he assumed by reason of him accepting (and refusing to relinquish) the position of Head Coach of Weston FC.
[12] Northern contends that Mr Bertos was under a duty to avoid such conflicts. His conduct in applying for (without disclosure), accepting and refusing to relinquish the position of Head Coach of Weston FC created and maintained such a conflict. That conflict was incompatible, so Northern contends, with the continuation of Mr Bertos’s employment with Northern. Further, Northern contends that Mr Bertos’s conduct in giving preference in his employment with Northern to the advancement of his own interests was to the detriment of the legitimate interests of his employer.
Relevant facts
[13] Northern is responsible for the governance and conduct of premier football competitions in northern New South Wales, including the NPL in that region. It has an operating budget of around $10 million per annum.
[14] Northern has two major groups of stakeholders: the seven member zones, who administer community football throughout northern New South Wales and are responsible for player development at varying degrees; and the Premier Clubs, of which there are 20 men’s clubs and 8 women’s clubs. Northern is directly responsible for the administration and regulation of two men’s premier competitions and the women’s premier league. These three competitions are collectively referred to as Premier Competitions.
[15] Mr Bertos’s key areas of responsibility in his role as Technical Advisor included:
• implementing national football curriculum and talent support programs;
• managing and overseeing the performance of coaches;
• conducting player assessments in consultation with coaches and liaising with club and zone technical directors about which players should be selected into development programs conducted by Northern, organising and conducting professional development sessions for coaches;
• delivering talent support programs to players in the 9 to 16 age group;
• monitoring the performance of clubs competing in Premier Competitions with respect to their youth development plans;
• recommending the positioning of clubs in the top or bottom half of the Premier Club Skills Acquisition Program (SAP) draw after the first round each season (a subjective task based on performance as opposed to results); and
• travelling regularly and working with players and coaches engaged in player development programs on the mid north coast, north coast, far north coast and northern inland regions of New South Wales.
[16] On 28 November 2019, Mr Bertos accepted the offer of appointment to the role of acting Technical Director, to commence on 3 December 2019 for a fixed period until March 2020. The role of Technical Director became vacant for a temporary period because the person working in that role took a leave of absence. When Mr Bertos was appointed to the role of acting Technical Director, his remuneration, duties and prominence in Northern’s organisation increased. Northern did not employ a replacement Technical Advisor while Mr Bertos took up the role of acting Technical Director. The role of Technical Director reports to Northern’s Head of Football and its duties include providing advice and recommendations which directly shape strategy, policy and regulations pertaining to the conduct of the Premier Competitions.
[17] At Mr Bertos’s request, Mr Haynes provided Mr Bertos with a letter dated 27 November 2019, supporting Mr Bertos’s application to be accepted onto an upcoming Pro Diploma being conducted by the Football Federation of Australia (FFA) in 2020. Although Mr Bertos obtaining a Pro Diploma would enhance his coaching skills and knowledge and thereby provide benefit to Northern, it was not necessary for Mr Bertos to have a Pro Diploma in order to carry out his role of acting Technical Director or Technical Advisor for Northern. A Pro Diploma is often a pathway to a role as a professional football coach. One of Mr Bertos’s ambitions is to coach football at the highest level.
[18] At the time he provided the letter of support to Mr Bertos for the Pro Diploma, Mr Haynes was not aware of the requirement by FFA that coaches undertaking the Pro Diploma “be working at an appropriate level at NPC Senior (NPC1), A League, W League, WYL, National Team Level”, nor was Mr Haynes aware that Mr Bertos had accepted, or was considering taking up, the job as Head Coach of Weston FC.
[19] On 3 December 2019, Mr Bertos informed Mr Haynes that he had been offered and accepted the job as Head Coach of Weston FC. Prior to that time, Mr Bertos had been in discussions with Weston FC about taking up the role of Head Coach. Mr Bertos did not disclose to Northern that he was having such discussions with Weston FC.
[20] On 4 December 2019, Mr Bertos sent an email to Mr Haynes in which he confirmed that he had accepted the Head Coach position at Weston FC and raised the issue of potential conflict of interest, which Mr Bertos did not believe was a concern. Later that day, Mr Haynes responded by email to Mr Bertos, raising a number of his concerns and informing Mr Bertos that he needed to discuss the matter with Mr Eland. Mr Bertos provided a further email response later that day in which he stated, amongst other things:
“… From a schedule point of view our main evenings with our programs here are Mondays, Wednesdays and Fridays.
I will train with Weston on Tuesdays, Wednesdays and Fridays after our sessions…”
[21] At 7:20pm on 4 December 2019, Mr Haynes responded in the following terms to Mr Bertos’s earlier emails:
“Hi Leo,
Sorry I didn’t catch you this afternoon.
I had a discussion with David around this and after looking at all angles it is simply not possible to coach an NPL team at the same time as being a full time technical advisor or Technical Director (acting or not).
The requirements of our stakeholders need to take absolute priority and the conflict between your role at NNSWF and a role as a club coach is simply too great.
Having oversight of and a leadership role in the Player Development space including being part of the decision-making process surrounding the TPP, the NPL as a whole, its future and implications for clubs and coaches puts you in a position to have and know information prior to other clubs or coaches. This is not a good situation to be in and allows perceived conflict.
I understand that on the face of it, you think the time is split between both roles will be manageable however not being available for clubs, coaches and zones on two nights per week (Tuesday and Thursdays) and one afternoon on the weekend (or NPL Match Day) is not workable. As you know, schedules change and the requirements of intrastate travel, tournaments and tours mean that you will not be able to be in two places at once and one of your roles will be impacted.
Another significant conflict is the link between a role and attachment to a club and playing a key role in the selection of TSP, Emerging Jets and NYC teams as well as the role you play in recommending players for transition to Jets Academy.
All in all after giving it some thought I simply can’t allow you to take your role as an NPL Head Coach while you hold your role with NNSWF Leo. Your role is too important for NNSWF and our stakeholders to allow it to be impacted or potentially diluted by having another role within our club structure.
Happy to talk about this further however wanted to give you the news as quickly as I could as I assume the club will need to explore other opportunities.”
[22] At 10:50am on 5 December 2019, Mr Bertos responded as follows to Mr Haynes’ email from the previous evening:
“Hi Pete,
With all due respect I mentioned I had accepted this coaching role with Weston.
I was being courteous to let you and NNSWF know before the media get a hold of it.
I also wanted to reassure you NNSWF is my priority as it always has been. The club is very willing and understanding and they will help to accommodate whatever I need so I can fulfil my duties with NNSWF.”
[23] Mr Haynes made his position perfectly clear in his email response to Mr Bertos at 10:55am on 5 December 2019:
“I understand the club would be keen to accommodate the situation however as I mentioned it is simply not something we can agree to from an organisation perspective. The time constraints and level of conflict are simply too great.
To clarify, it’s simply not acceptable for a technical advisor or technical director (in addition to other roles within the organisation) to hold a coaching position with a Premier Club.
Sorry Leo but it is not something we can allow.”
[24] On 17 December 2019, Mr Haynes and Mr Eland had a meeting with Mr Bertos to discuss the conflict of interest issue. During that meeting Mr Eland referred to Northern’s “rules of engagement” which Mr Bertos accepted when taking a full-time position with Northern. The “rules of engagement” to which Mr Eland referred were the conflict of interest provisions in Mr Bertos’s contract of employment (which are set out below), not an express rule that Mr Bertos was not to take up a coaching position with a Premier club. Mr Eland noted Mr Bertos’s desire to coach and committed to addressing potential opportunities in that regard (which did not present any conflict) in the new year. Mr Bertos said that he and Mr Haynes had identified two clashes between Northern’s programs for the following season and Weston FC’s fixtures. Mr Bertos said that Weston FC would be okay with that and his Assistant Coach at Weston FC would cover those games. Mr Eland said there would inevitably be more clashes and he was not prepared to compete with Weston FC for Mr Bertos’s time. Mr Eland also referred to the broader conflict of interest issues that had been discussed earlier in December 2019. Mr Eland told Mr Bertos that they would make a decision regarding the conflict by the end of the week.
[25] On 18 December 2019, Mr Eland had a telephone discussion with Mr Bertos and then sent him an email in the following terms:
“Hi Leo
Thank you for your time on the phone earlier this afternoon. I write to formally confirm that I am not supportive of your request to assume the role of First Grade Head Coach at Weston FC in 2020. It is inappropriate for the Member Federation’s Interim/Acting Technical Director or Technical Advisor to fulfil a coaching role at a club competing in NNSWF’s Premier Competitions. The proposal simply doesn’t pass the “Pub Test” and would enviably [sic] undermine the governing body’s independence, integrity and standing with the clubs competing in the NPL NNSW. You are employed on a full–time basis by NNSWF in accordance with the terms of your contract of employment. Your responsibilities include providing technical direction and recommendations to the Head of Football Development, which will shape policy, influence strategy and formulate competition regulations. I hold the view that you can’t fulfil your responsibilities to NNSWF to the best of your ability and coach an NPL First Grade side. The following extract outlines your duties and responsibilities to NNSWF as your full–time employer.
Duties
…
I appreciate your commitment and desire to give both roles 100%. I don’t think this is possible, and I don’t think it’s fair that Peter should have to factor in additional coaching commitments when allocating resources. It’s unfortunate that both roles require your attention principally in the evenings and weekends. It’d be a different conversation if you were an administrator working 9 to 5 and not overseeing player development.
It is unfortunate and to be transparent, disappointing that this issue escalated to this point given Peter’s initial response and Clayton’s leave of absence. I am also confident that you were acutely aware of the rules of engagement when you accepted full–time employment with NNSWF. Clayton’s absence means that we’re even more reliant on your expertise and energy.
I acknowledge and accept that you seek to continue your coach education and complete a AFC/FFA Pro Diploma. Peter will pick this up with you in the New Year.
In response to our meeting this week, I will provide you with a fixed term contract for the position of Technical Director. The hours of work will be 38 hours a week and reasonable additional hours required to fulfil the roles responsibilities.”
[26] In the first few days of January 2020, Mr Eland found out that Mr Bertos was taking up the role of Head Coach at Weston FC. At no time between 18 December 2019 and 3 January 2020 did Mr Bertos inform Mr Eland that he would be taking up the role of Head Coach at Weston FC.
[27] On 4 January 2020, Mr Eland spoke to Mr Bertos by telephone. Mr Bertos confirmed that he had accepted the Head Coach role at Weston FC. Mr Eland told Mr Bertos that he had defied Northern’s position, and the matter had now escalated to an employment issue. Mr Bertos said words to the effect that Northern had not considered what was best for him in his ambition to coach.
[28] I accept Mr Eland’s evidence that from about 6 January 2020, Mr Bertos was stood down by Northern.
[29] On 10 January 2020, Northern provided Mr Bertos with a show cause letter. The subject of the letter was “Potential termination of employment – opportunity to show cause”. In the letter, Northern informed Mr Bertos, amongst other things, that it had formed the view that Mr Bertos’s actions in failing to disclose his acceptance of the role of Head Coach of Weston FC, accepting the role and disregarding Northern’s advice about the conflict were inconsistent with his employment obligations and amounted to serious misconduct and that the termination of his employment was warranted on that basis, but that, before a definite decision was made in that regard, Mr Bertos was requested to attend a show cause meeting on Tuesday, 14 January 2020 at Northern’s Head Office. The letter informed Mr Bertos that at that meeting he would be allowed an opportunity to raise any matters he wished to bring to Northern’s attention as to why he believed his employment should not be terminated and he would be permitted to bring a support person with him to the meeting.
[30] On 14 January 2020, Mr Bertos attended the show cause meeting. Mr Eland and Mr Haynes attended on behalf of Northern. Mr Bertos stated that he saw no significant issue or conflict in him being Head Coach of Weston FC and his employment with Northern. Mr Eland said he did not agree and gave reasons to explain his position. The parties discussed Mr Bertos’s previous coaching of the Jets Academy and the situation of other employees of Northern undertaking various roles. Mr Eland explained that they were not equivalent situations. Mr Bertos asked Mr Eland to give it a try to see if he could manage both his duties and responsibilities to Northern and his duties and responsibilities as Head Coach of Weston FC. Mr Eland made it clear that he was not willing to undertake such a trial.
[31] It was plain from Mr Bertos’s communications to Northern at the meeting on 14 January 2020 that he did not accept Northern’s position that there was a serious conflict in him being the acting Technical Director or Technical Advisor of Northern and Head Coach of Weston FC.
[32] By letter dated 15 January 2020, Northern informed Mr Bertos that his employment was being terminated on that day and gave reasons for that decision. Those reasons focused on the conflict of interest issues previously communicated to Mr Bertos.
[33] On 19 January 2020, Weston FC posted an “expression of interest” message from Mr Bertos in his capacity as the new Head Coach on the Weston FC Facebook page. I have not taken into account the content of that Facebook post because it was made after Mr Bertos was dismissed by Northern and it is not known whether Mr Bertos would have made such a post had he retained his employment with Northern.
[34] By letter dated 18 March 2020, Mr Glenn Warry, Chief Executive Officer of Football Coaches Australia, an organisation that represents the interests of its member coaches such as Mr Bertos, wrote a letter supporting Mr Bertos in relation to the decision by Northern to terminate his employment. I have had regard to the content of that letter in determining this matter, but I prefer, for the reasons set out below, the evidence given by Mr Eland and Mr Haynes over the evidence given by Mr Bertos and Mr Warry (in his letter of support) in relation to the conflicts that would arise by reason of Mr Bertos taking on the role of Head Coach of Weston FC while also being employed on a full time basis by Northern as its acting Technical Director or Technical Advisor.
Mr Bertos’s relevant duties and obligations
[35] Mr Bertos signed a written contract of employment on his commencement with Northern in October 2017 (Contract). The Contract refers to Mr Bertos’s employment in the position of Technical Advisor and also states that Northern “may alter your position or Position Description in accordance with the needs of the business”. The Contract imposed the following relevant duties on Mr Bertos:
“6. Duties
…
(c) In carrying out the duties of your position, you must:
(i) serve Northern NSW Football faithfully and diligently to the best of your ability;
(ii) during working hours, devote the whole of your time and attention to Northern NSW Football’s business;
(iii) use your best and reasonable efforts to promote the interests of Northern NSW Football;
(iv) act in Northern NSW Football’s best interests; and
(v) comply with all regulatory and legislative provisions applicable to your position and the duties assigned to you.
(d) Without limiting the obligations above, you acknowledge that:
(i) you will not act in conflict with Northern NSW Football’s best interests; and
(ii) you have disclosed, and will during your employment continue to disclose, to Northern NSW Football immediately any actual or potential conflict of interest between your interest and those of the Northern NSW Football.
(e) Nothing in this clause limits the obligations of the parties pursuant to the common law.
…
8. Hours of Work
(a) You will be required to work principally in the afternoons and early evenings during the week. You will also be required to attend relevant fixtures and activities on the weekend and at the direction of the Technical Director plus reasonable additional hours necessary to carry out the duties of your position. Weekend commitments may require you to not work on a pre-determined day during the week.”
[36] There is an issue as to whether the terms of the Contract continued to govern Mr Bertos’s employment with Northern after his appointment to the role of acting Technical Director with effect from 2 December 2019 for a fixed term until March 2020. In my view, they did. Mr Bertos was appointed to the role of acting Technical Director on a temporary basis while Northern’s Technical Director took a leave of absence. The decision to place Mr Bertos in that acting role was “in accordance with the needs of the business” within the meaning of clause 6(b) of the Contract. Mr Bertos had also worked in the role of acting Technical Director for a period earlier in 2019.
[37] Even if, contrary to the conclusion I have just reached, the terms of the Contract no longer governed Mr Bertos in his role as acting Technical Director, Mr Bertos remained bound by relevant common law duties. Such duties were explained as follows by a majority of the Full Bench of the Fair Work Commission (Commission) in Adidem Pty Ltd T/A The Body Shop v Suckling [references omitted]: 10
[43] In Blyth Chemicals Ltd v Bushnell, Dixon and McTiernan JJ said:
“Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between the employer and employee, is a ground of dismissal (Boston Deep Sea Fishing and Ice Co. v. Ansell; English and Australian Copper Co. v. Johnson; Shepherd v. Felt and Textiles of Australia Ltd.). But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.”
[44] In the same case, Starke and Evatt JJ noted:
“The mere apprehension that an employee will act in a manner incompatible with the due and faithful performance of his duty affords no ground for dismissing him; he must be guilty of some conduct in itself incompatible with his duty and the confidential relation between himself and his employer.”
[45] In Hivac Limited v Park Royal Scientific Instruments Limited, Lord Greene MR said:
“It has been said on many occasions that an employee owes a duty of fidelity to his employer. As a general proposition, that is indisputable. The practical difficulty in any given case is to find exactly how far that rather vague duty of fidelity extends. Prima facie it seems to me on considering the authorities and the arguments that it must be a question on the facts of each particular case. I can very well understand that the obligation of fidelity, which is an implied term of the contract, may extend very much further in the case of one class of employee than it does in others. For instance, when you are dealing, as we are dealing here, with mere manual workers whose job is to work five and a half days for their employer at a specific type of work and stop their work when the hour strikes, the obligation of fidelity may be one the operation of which will have a comparatively limited scope. The law would, I think, be jealous of attempting to impose on a manual worker restrictions, the real effect of which would be to prevent him utilizing his spare time. He is paid for five and a half days in the week, the rest of the week is his own, and to impose upon man, in relation to the rest of the week, some kind of obligation which really would unreasonably tie his hands and prevent him adding to his weekly money during that time would, I think, be very undesirable. On the other hand, if one has employees of a different character, one may very well find that the obligation is of a different nature.”
[46] In Cementaid (NSW) Pty Ltd v Chambers, Spender AJ said:
“The touchstone for determination of cases such as the present one is to be found in the passage I have quoted from the judgment of Dixon J (as he then was) and McTiernan J in Blyth. It may be put in questions: 1. Is the second activity incompatible with the fulfilment of the employee’s duty to his other employer? 2. Does it involve an opposition or conflict between his interest and his duty to his employer? 3. Does it impede the faithful performance of his obligations to his other employer? 4. Is it destructive of the necessary confidence between the employer and employee? In all cases an actual repugnance between the employee’s acts and his relationship with his employer must be found.”
Consideration re valid reason
[38] I accept Mr Bertos’s evidence that he sought and obtained the position as Head Coach of Weston FC as a step to advance his career and apply the extra knowledge and capability obtained therefrom to the benefit of Northern. However, it was reasonable and appropriate for Northern to weigh up the benefit it would receive by reason of Mr Bertos advancing his knowledge in this way and applying it to his role with Northern against the detriments associated with Mr Bertos holding both positions.
[39] In his witness statement, Mr Eland explained his concerns in relation to Mr Bertos taking up the position of Head Coach at Weston FC at the same time as working in his full time role as acting Technical Director of Northern:
“18. In his role as Technical Advisor/Director the Applicant reports to the Head of Football Development and is required to provide advice and recommendations which directly shape strategy, policy and regulations pertaining to the conduct of the Premier Competitions. This advice provided by the Applicant can directly influence which clubs are invited to participate in the respective competitions. The Applicant is required to work very closely with both the member zones and premier clubs. He is responsible for assessing and monitoring the clubs’ Youth Development Programs which are an integral component of the criteria which determines the clubs’ eligibility to compete in the NPL NSW. The role at Weston would have also undermined the Applicant’s ability to effectively service the needs of the regionally based member zones which all require extensive travel and overnight stays.
19. My view was, and remains, that being a coach at Weston FC would totally undermine the governing body’s independence, integrity and standing within the clubs competing in the premier competitions and in particular the NPL NNSW. This concern was clearly articulated to the Applicant in the meeting on 17 December, our ensuing phone call and my email to the Applicant on 18 December. The Applicant’s appointment would have undermined every decision that NNSWF made that involved Weston FC. NNSWF would have had to respond to a constant undercurrent that Weston FC was advantaged because the Applicant coached at the club. Unfortunately perception is reality. It is unrealistic to think that the Applicant could have maintained an effective working relationship with the coaches and technical director at competing clubs.
20. The Applicant is directly involved in Talent Support Programs (TSP), which underpin the Jets Academy and provide the best youth players at NPL NNSW clubs with additional coaching and fixtures. To succeed in this function the Applicant must maintain an excellent working relationship with club technical directors to ensure that clubs encourage or allow their best players to be involved in the TSP. I maintain that it is difficult to engender the support of clubs that you compete against. Clubs could be justifiably concerned that the Applicant may identify players whilst coaching in the TSP and entice them to play for Weston. Clubs could also perceive that the Applicant may favour the selection of players from Weston to be involved in the TSP because he coaches at the club. It is vital that the Applicant maintains effective working relationships with the premier clubs which are beyond reproach and perceived conflict. The Applicant’s role at Weston would have undermined the integrity of the TSP.
21. The Applicant’s role included assessing the performance of the premier clubs’ squads in the Premier Club Skill Acquisition Program. The assessment determined which clubs competed in the top and bottom half of the draw for the second half of the season. The clubs’ perception is that the weaker teams play in the bottom half of the draw. In response, clubs aspire to be in that top half of the draw. In 2019, the Applicant’s decision to place Maitland FC’s squads in the bottom half of the draw received significant scrutiny. Co-incidentally, Maitland is Weston’s arch “Coalfields” rival. The risk for the governing body is that the Applicant’s impartiality and integrity would be undermined by his appointment at Weston FC.
22. In that regard, it is important to understand that the clubs competing in the premier competitions are highly competitive. It’s not community football and the rivalry between the clubs is fierce. The governing body is constantly challenged to justify decisions and policy. The Applicant’s appointment at Weston FC would have been viewed by the clubs as a conflict and would have made a difficult job even more difficult. The governing body’s impartially, independence and integrity must be beyond reproach in regards to making decisions in accordance with sound governance principles. Following the Applicant’s termination, he commenced recruiting players and coaches on the club’s Facebook Page. The recruitment of players and coaches is an essential function of a Head Coach. The advertisement which was signed by the Applicant called for expressions of interest from aspiring and established NPL players and coaches to join the club. This is exactly the type of conflict which would have undermined NNSWF’s relationship with the other premier clubs. A Head Coach cannot remove themselves from such activities and decisions. The Applicant would not have been able to maintain effective working relationships with rival clubs and technical directors on the basis that he was trying to “poach” their players and coaches.
23. I also note that the role of Technical Advisor/Director requires that the occupant to work afternoons, evenings and weekends. This requirement is clearly outlined in the Applicant’s Contract of Employment. The role of Head Coach at Weston FC would require the Applicant to attend multiple training sessions during the week which occur in the evenings and attend a game on the weekend. The role of Head Coach at a NPL Club is far more time consuming than the Applicant suggests. The Head Coach would be expected to lead weekly discussions relating to selections, injuries, tactics and planning. On this basis I formed the view that the role at Weston would have impacted upon the Applicant’s ability to fulfil his commitments to his full-time employer. The Applicant simply cannot be in two places at once. In response, I clearly stated that I was not prepared to allow NNSWF’s programs to be undermined.”
[40] Mr Eland also expanded on these issues and concerns in his answers to questions put to him in cross examination. I accept Mr Eland’s evidence in relation to these matters. He is a man with extensive experience as a sports administrator and was able to explain in clear terms how Mr Bertos taking up the role as Head Coach at Weston FC would, not might, conflict in a serious way with his duties and obligations as acting Technical Director or Technical Advisor of Northern.
[41] Similarly, Mr Haynes gave the following evidence in his witness statement in relation to the conflicts between Mr Bertos’s role as Head Coach of Weston FC and his full time position as acting Technical Director or Technical Advisor of Northern:
“12. The Applicant was dismissed from his employment because he took up the job of Head Coach for Weston FC and made it clear that he was not prepared to relinquish it. The Respondent considered that there was a serious conflict of interest in the Applicant holding both positions.
13. In that regard, in his role as the Respondent’s Acting Technical Director he was often called upon to make recommendations as to course of action which if acted upon would advantage a club or several clubs and or a Club’s players. For example, the Applicant made recommendations that particular players be promoted to the Jets Academy (i.e. the Hyundai A-League’s Newcastle Jets Academy for the development of players. In his role he would provide feedback to us on the performance of coaches (e.g. who should be appointed to coaching roles within the Talented Player Pathway, including National Championships teams.); he would contribute by way of expression of his views on decisions regarding players and teams. In his role he had the final say on which players were selected for the Emerging Jets program, Skill Development Program, Talent Support program and teams selected to represent NNSWF at National Championships and international tournaments.
14. If the Applicant held the position of Head Coach of Weston FC there was a serious risk that whether consciously or unconsciously the Applicant might favour the interests of that Club and/or its players with respect to those matters and like matters. Moreover, the Respondent considered that other clubs, other players, potential players and others interested in the league might reasonably form the view that because of the Applicant’s position as Acting Technical Director with the Respondent, Weston FC and/or its players would have an unfair advantage in relation to such matters. That would damage the Respondent and the regard in which it was held by those parties.
15. The existence of conflicts can be further illustrated by reference to Youth Development Plans. Every year, NPL clubs are required to submit Youth Development Plans to NNSWF. An important part of the Applicant’s role is to assess those plans and make recommendations to the NNSWF NPL License Assessment Panel about the technical aspect of clubs NPL applications which contribute to the decision of which clubs would be granted an NPL Licence and therefore which clubs would be in the competition. (An NPL Licence is a licence to compete in the highest level of competition. It is much sought after). The Applicant in his role was required to contribute towards granting an NPL Licence to Weston FC and would be required to contribute to the continual assessment of Weston FC and all other current and potential NPL clubs.
16. Even if by some means or another he was quarantined from contributing to that decision (something that would require someone else to perform his role in that regard), it would be natural that others interested in the decisions on that subject would reasonably conjecture that in one way or another the circumstance that the Respondent’s Technical Director was Head Coach of Weston FC had improperly affected the Respondent’s decision making.
17. In that respect, the ability of the Technical Director to influence those decisions is significant. For example, in July 2019, a panel of five gathered in the NNSWF boardroom to make the decision about who to grant NPL licences to. There was myself, Larry Urdarov, David Eland, Liam Bentley, Mal Impiombato (FFA’s General Manager Operations Competitions) and Leo Bertos phoned in. Leo spoke about each club and how many points he gave their Youth Development Programs, and made recommendations. It was the Applicant’s role to do that. It is part of his role to conduct club assessments and report back to us so the Respondent’s decision making bodies can make decisions on objective information that is seen to be compiled objectively.
18. The Applicant in his role with the Respondent also made recommendations relating to the rules and regulations of various competitions; for example, recommendations relating to rules about substitution of players on or off the field for some leagues, regulations relating to the non-appointment of referees to SAP games or even whether or not we should change the structure of the youth competition.
19. As Technical Director, the Applicant would also run training programs at NNSWF to help promising players and coaches transition into the Jets Academy. The Jets Academy is what most young players aspire to be in – it’s one of the key elements of the pathway to becoming a professional football player. The Applicant had a role in determining how many players could transition into the Jets Academy. So if more Weston FC players transitioned into the Jets, reasonable questions would have immediately arisen as to whether that outcome was affected by the Applicant also being the Respondent’s Technical Director.
20. Additionally, as Technical Director, the Applicant had access to a lot of confidential information about players and the competition. It is not realistic to think that the Applicant, no matter how he might try, could compartmentalize that information and not draw on it when it might be in the interests of Weston FC, its officials or its players to do so. The type of information that might be relevant to the clubs would include player signings (actual or potential), disciplinary outcomes, and player point systems (each player is attributed points, with each club only being able to sign a squad up to a certain number of collective points, similar to a salary cap concept) or even player injuries or habits of rival coaches gained over time through the performance of his role as Technical Director.
21. Beyond the conflict of interest I have referred to above, in terms of actual performance of his role, the Respondent serves Member Zones and clubs right to the Queensland border and part of the Applicant’s role is to provide those Member Zones and clubs with direction, assessments and feedback about various things. When the conflict between him doing that and him discharging his Weston FC Head Coach role was pointed out to him, the Applicant suggested that we could get some of our casual staff to help service the regional zones and clubs. In the Respondent’s view that was not something that could be reasonably entertained. The role of a Technical Director involves giving.”
[42] I accept Mr Bertos’s contention that his contract of employment with Northern did not require him to work, or be available, 24 hours a day, seven days a week. I also accept that Mr Bertos had a right to obtain a second job to supplement his income from Northern. However, Mr Bertos was under an obligation to ensure that any second job he took up did not conflict with his duties and obligations to Northern.
[43] As to conflicts concerning Mr Bertos’s hours of work in his role of Head Coach of Weston FC and his role as full time acting Technical Director or Technical Advisor with Northern, both jobs primarily involved work during the afternoon/evening on week days and weekends. Mr Bertos’s job at Northern also involved overnight travel to the various zones within the northern New South Wales region. Mr Bertos suggested to Mr Haynes that Northern could arrange for some of its casual staff to help service the regional zones and clubs so that he could take up the role as Head Coach of Northern. It was not unreasonable for Northern to reject that proposal, given the additional cost that would have been imposed on Northern by acceding to it. I find on the evidence adduced that there would have been inevitable conflicts between the hours Mr Bertos was obliged, as a full time employee, to work for Northern during the weekday afternoons/evenings and on weekends and his role as Head Coach of Weston FC. I find that Mr Bertos downplayed the amount of time he would have been required to spend in his role as Head Coach of Weston FC, which he estimated to be 6 to 8 hours a week. I prefer Mr Eland’s evidence that the time commitment for a Head Coach of an NPL side would have been more than 6 to 8 hours per week, having regard to the involvement of a Head Coach in matters such as training, attending games, selections, recruitment, considering and deciding on tactics, and receiving and considering information about injuries of players. I find that there would have been conflicts between the time Mr Bertos was reasonably required to work for Northern during the weekday afternoons and evenings and on weekends and the time he was reasonably required to work as Head Coach of Weston FC. Although some of those conflicts could have been managed by Mr Bertos giving preference to his job at Northern, I am satisfied on the evidence that inevitably the demands of Mr Bertos’s role as Head Coach of Weston FC would have encroached on the hours he was reasonably required to work for Northern.
[44] As to conflicts concerning matters other than Mr Bertos’s hours of work, it is in Northern’s interests as the governing body of football in the northern New South Wales region to have an effective working relationship with the clubs competing in the Premier Competitions run by Northern. The clubs competing in the Premier Competitions are fiercely competitive; it is not community level football. At the very least, Northern must be, and must be seen to be, both independent and an organisation with integrity. I accept Mr Eland’s contention that Mr Bertos’s conduct in accepting the role as Head Coach of Weston FC, one of the clubs in the NPL, would, not might as a matter of speculation, totally undermine the governing body’s independence, integrity and standing within the clubs competing in the Premier Competitions. As Mr Eland explained, if Mr Bertos continued his employment with Northern and was also the Head Coach of Weston FC, each time Northern made a decision which was in the interest of Weston FC, its players, or its coaches, or against the interest of any other club, players or coaches in the NPL, representatives of the other clubs would be contacting Mr Eland to complain about Mr Bertos’s influence, or potential influence, in the decision. That would inevitably undermine Northern’s independence, integrity and standing with the clubs.
[45] I am satisfied that the conflict, opposition and incompatibility of Mr Bertos holding at the same time the position of acting Technical Director or Technical Advisor of Northern and Head Coach of Weston FC was in breach of clauses 6(c) and (d) of the Contract or, in the alternative, his implied duties (as set out in paragraph [37] above). In my view, the conflict concerning matters other than Mr Bertos’s hours of work was more serious and significant than the conflict arising out of his working hours and time commitments in the two jobs.
[46] Mr Bertos submits that his position of Technical Director/Technical Advisor for Northern has not been filled since his departure, which raises the question of whether his position was redundant and that was the reason for his dismissal. Mr Bertos further points to the fact that he was offered a deed of release at the time he was dismissed, which he viewed as an attempt by Northern at a cheap way out of the potential redundancy. I do not accept these contentions. I accept Mr Eland’s evidence that the reason for Mr Bertos’s dismissal was his conduct in accepting (and not relinquishing) the role of Head Coach of Weston FC. I also accept Mr Eland’s and Mr Haynes’ evidence that Northern has recruited a new Technical Director, who is based in New Zealand but cannot presently travel to Australia as a consequence of the travel restrictions in place; once the new Technical Director arrives, he will be heavily involved in the recruitment of a new Technical Advisor.
[47] For the reasons given, I am satisfied on the evidence adduced that there was a sound, defensible and well-founded reason for Mr Bertos’s dismissal related to his conduct in placing himself in a position of conflict and opposition between his duties and obligation owed to Northern and the duties and obligation he assumed by reason of him accepting (and refusing to relinquish) the position of Head Coach of Weston FC. Accordingly, there was a valid reason for Mr Bertos’s dismissal within the meaning of s 387(a) of the Act.
[48] It is necessary to consider and take into account whether Mr Bertos was notified of any valid reason(s) for his dismissal and whether he was given an opportunity to respond to any reason(s) related to his capacity or conduct.
[49] In Crozier v Palazzo Corporation Pty Ltd, 11 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 (Cth) stated the following:12
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the 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.”
[50] The criterion concerning whether an employee was provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity should be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 13
[51] Mr Bertos contends that at no time was he warned that his acceptance of the role of Head Coach of Weston FC would constitute grounds for his dismissal, or that his position was in jeopardy. I do not accept that contention. It is inconsistent with the clear communications from Northern to Mr Bertos in December 2019 and January 2020, as set out above, including the opportunity given to Mr Bertos in January 2020 for him to show cause as to why his employment should not be terminated.
[52] I am satisfied that Mr Bertos was notified of the valid reason for his dismissal and given a chance to respond to it in the written and oral communications Mr Eland and Mr Haynes had with Mr Bertos in December 2019 and January 2020, before the decision was made to terminate his employment. Mr Bertos was also notified of the reasons for his dismissal in the termination letter dated 15 January 2020.
[53] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, it is relevant to consider and take into account whether the employer unreasonably refused the support person being present.
[54] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”14
[55] Mr Bertos was offered to have a support person with him in the meeting on 14 January 2020. He declined that offer.
[56] In all the circumstances, I find there was no unreasonable refusal by Northern to allow Mr Bertos to have a support person present to assist at any discussions relating to dismissal.
[57] This criterion is not relevant because Mr Bertos was dismissed on the basis of his conduct.
[58] Northern’s business is of a reasonable size. In all the circumstances, I find that the size of Northern’s enterprise was not likely to impact on the procedures followed in effecting the dismissal.
[59] There is no evidence that Northern had any dedicated human resource management specialists or expertise to assist in relation to the procedures followed in effecting Mr Bertos’s dismissal. However, Northern did obtain legal advice prior to sending the show cause letter to Mr Bertos on 10 January 2020 and meeting with him on 14 January 2020.
[60] In all the circumstances, I find that this criterion is neutral in my assessment of whether Mr Bertos’s dismissal was harsh, unjust or unreasonable.
[61] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
Employment history at Northern
[62] Mr Bertos was employed by Northern for about a little over two years prior to his dismissal. Prior to Mr Bertos accepting the role of Head Coach at Weston FC, both Mr Haynes and Mr Eland had a good working relationship with him and considered him to be a good performer and valued employee, albeit Mr Eland considered that from time to time Mr Bertos had difficulty accepting the finality of some decisions with which he did not agree. In all the circumstances, the length and quality of Mr Bertos’s employment with Northern weighs to some extent in favour of his contention that his dismissal was unfair.
Procedure leading up to termination
[63] Mr Bertos complains that he was not warned that his accepting the role of Head Coach of Weston FC would constitute grounds for misconduct, or that his position was in jeopardy. I reject that contention, for the reasons set out above. To the contrary, it must have been abundantly clear to Mr Bertos by the time he received the show cause letter on 10 January 2020, with the subject line “Potential termination of employment – opportunity to show cause”, that his employment with Northern was in jeopardy and he had a choice to make – relinquish his role as Head Coach of Weston FC or retain that role and be dismissed by Northern. Mr Bertos refused to relinquish his role as Head Coach of Weston FC.
Mr Bertos’s advancement as a professional coach
[64] Mr Bertos complains that Northern’s refusal to permit him to occupy the role of Head Coach of Weston FC and his role as acting Technical Director or Technical Advisor at Northern at the same time has had a severe impact on his career and day to day job prospects. I accept that this is the case.
[65] However, if Mr Bertos had elected to relinquish his role as Head Coach of Weston FC and remain in employment with Northern, coaching opportunities would have been available to him. To that end, it is relevant that Mr Eland communicated to Mr Bertos in December 2019 that he would consider further coaching opportunities (which did not present a conflict) for Mr Bertos in the new year. Mr Eland gave evidence that he had in mind a potential part time coaching role for Mr Bertos with the Newcastle Jets or with an Australian national juniors team, if time permitted. Had Mr Bertos relinquished his role as Head Coach with Weston FC and retained his employment with Northern, it is likely, in my assessment, that a coaching role would have been organised for him to allow him to undertake the Pro Diploma and pursue his interest in a coaching career.
Refusal to trial
[66] Mr Bertos is critical of Mr Eland’s refusal to let him try working in both his role with Northern and his job as Head Coach of Weston FC. Mr Eland was satisfied, and reasonably so in my opinion, that Northern’s standing and reputation with the clubs in the Premier Competitions would definitely have been damaged if Mr Bertos had been permitted to take up the role of Head Coach of Weston FC while at the same time being employed by Northern as its acting Technical Director or Technical Advisor. It follows that Mr Eland’s decision not to permit the trial sought by Mr Bertos was reasonable in all the circumstances.
Comparative unfairness
[67] Mr Bertos contends that he was treated differently and unfairly compared to other circumstances which he says are comparable to his own.
[68] In Darvell v Australian Postal Corporation, 15 the Full Bench made the following comments in relation to the question of differential treatment between employees (references omitted):
“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton's case, his Honour said:
"[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …
[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a 'fair go all round' within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made."
[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.
[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:
"[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP's observation in Sexton that 'there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.' There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly's years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly's termination of employment was harsh, unjust or unreasonable."
[24] We respectfully concur with their Honours.”
[69] I find that none of the examples given by Mr Bertos, to which I will shortly turn, are comparable to his own. First, as a general observation, none of the examples provided by Mr Bertos involve a Technical Director of Northern also being the Head Coach of a club in a Premier Competition, nor do they involve employees of Northern who were, at the relevant times, involved in making or influencing decisions that could benefit any particular club or player or impact the policy, strategy or regulations that underpin Northern’s governance of the Premier Competitions. Secondly, as to the specific examples provided by Mr Bertos:
(a) In 2019, Mr Bertos coached a Jets Academy (junior) team while at the same time being employed by Northern as an acting Technical Director. I accept Northern’s evidence that the time taken to coach a junior side is not as significant as that required to be the Head Coach of an NPL side. More significantly, however, the Jets Academy is a junior academy; it is not a club. Although the Jets Academy teams compete in the junior NPL competitions against club teams, the clubs in the Premier Competitions encourage their players, if selected, to join the Jets Academy teams to further their skills and training.
(b) Prior to 2017, Northern used to run the Emerging Jets Academy, so any role undertaken by an employee of Northern with a Jets Academy team was part of their duties and responsibilities to Northern. In those circumstances, there was no conflict.
(c) In 2019, Mr Alex Lowe was employed by Northern as its MiniRoos Development Officer. In that role, he was responsible for serving community football clubs and players aged 4 to 11. Mr Lowe had no role in player development and no decision making power in relation to Premier clubs and competitions. The fact that Mr Lowe was also a coach and/or Technical Director at a Premier club did not conflict with his role at Northern.
(d) In 2019, Ms Jacquie Murnaine was employed by Northern in an administration role. She had no decision making function at Northern. Her role was wholly administration and support. The fact that Ms Murnaine was also a sports trainer or first aid officer for an NPL club did not conflict with her role at Northern.
(e) In 2020, a Northern employee who coaches in the TSP program also coaches a senior men’s team in the NPL competition. This person is a casual employee, who is exclusively employed by Northern to deliver a training program. He has no decision making role in relation to clubs, players or competitions.
(f) In January 2020, a Northern casual employee who oversaw the girl’s identification camp for national championships was also the Head Coach and Technical Director of a Women’s Premier League club which competes in a Premier Competition governed by Northern. This casual employee was appointed by Northern to step into a coaching role in Mr Bertos’s absence from work in January 2020. His appointment lasted three days.
(g) In 2020, a Northern SAP Technical Director was also a SAP Technical Director of a Premier club which competes in the SAP competition governed by Northern. This person is a casual employee who works about 10 hours a week for Northern as a SAP Technical Director in one of Northern’s training programs. Northern accepts this is not an ideal situation and is phasing it out.
(h) In 2019, a Northern official was officiating as a referee in the NPL youth competition as well as being a player competing in the youth NPL competitions. This person is employed by Northern in an administrative capacity and he has no decision-making role at Northern. In addition, his role as a referee is impartial and not biased towards a club.
(i) In 2020, a Northern employee oversaw the boy’s identification camp for the national championships at the same time as he was Head Coach of a senior NPL team. This person is employed by Northern about three days a week. He is not in a decision-making role.
(j) As to the situations at other football federations around Australia, it is not possible to compare the circumstances of employees working in those federations and undertaking other coaching roles with Mr Bertos’s situation because the facts and circumstances pertinent to how those football federations are structured and operated was not the subject of any detailed evidence in these proceedings.
Summary dismissal
[70] Mr Bertos was summarily dismissed by Northern on the ground of serious misconduct. The proportionality of the summary nature of Mr Bertos’s dismissal must be weighed against the gravity of his conduct in respect of which Northern acted in deciding to dismiss him. 16
[71] In Sharp v BCS Infrastructure Support Pty Ltd, 17 a Full Bench of the Commission discussed the question of whether particular conduct by an employee warranted their summary dismissal as an “other relevant matter” within the meaning of s 387(h) of the Act (references omitted):
[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.
[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:
“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).”
[35] In the Decision, the Vice President, correctly, did not attempt to address the parties’ submission concerning “serious misconduct” in the context of his consideration of whether there was a valid reason for the dismissal, but only as a relevant matter under s.387(h). His findings at paragraph [55] and [56] that Mr Sharp’s conduct was “serious misconduct” was, we consider, responsive to the submission of BCS noted in the first sentence of paragraph [52] that “the Applicant’s conduct constituted serious misconduct justifying immediate dismissal”. That is, “serious misconduct” was used as a shorthand expression to described misconduct of a nature that justified summary dismissal. A finding of that nature was a matter which was open to be taken into account as relevant under s.387(h) because it involved an assessment of the seriousness of the conduct in question.”
[72] I will now consider whether Mr Bertos’s conduct warranted his summary dismissal.
[73] For the reasons given above, Mr Bertos could not have been simultaneously employed as the Head Coach of Weston FC and as the acting Technical Director or Technical Advisor with Northern without damaging Northern’s relationship with the other clubs in its Premier Competitions and seriously diminishing its standing and reputation as the governing body of football in the northern New South Wales region. Mr Bertos’s conduct was, in my view, repugnant to his employment relationship with Northern. I therefore find that Mr Bertos’s conduct the subject of the valid reason for his dismissal was of such a nature as to have justified his summary dismissal.
Impact of termination
[74] I accept Mr Bertos’s submission that his dismissal has had a significant impact on his personal and economic situation. Mr Bertos is a married man with a young family. He has not been able to find alternative employment since his dismissal from Northern. Further, as a result of COVID-19, the NPL season in Newcastle has not been able to commence, with the result that Mr Bertos has not been able to work in his role as Head Coach of Weston FC. However, once these matters are weighed against the gravity of Mr Bertos’s conduct which resulted in his dismissal, I am satisfied that his dismissal was not disproportionate to his conduct or otherwise harsh.
Conclusion
[75] Sometimes personal ambition clouds reasonable judgment. This is such a case. Mr Bertos’s ambition to coach football at the highest level has resulted in him being unable to appreciate that taking on the role of Head Coach of Weston FC was not in Northern’s best interests and would have conflicted with his duties and obligations to Northern. Faced with a choice between relinquishing his role as Head Coach of Weston FC and maintaining his role as acting Technical Director of Northern, Mr Bertos preferred his own interest in pursuing his ambition to be a football coach at the highest level. As a consequence, his employment with Northern was terminated.
[76] After considering and taking into account each of the matters specified in s 387 of the Act, my value judgment is that Northern’s dismissal of Mr Bertos was not harsh, unjust or unreasonable. Northern had a valid reason for Mr Bertos’s dismissal. It followed a fair and reasonable process before making a decision to bring Mr Bertos’s employment to an end.
[77] Mr Bertos’s application for relief from unfair dismissal is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr P Rochfort on behalf of the Applicant.
Mr B Mueller, solicitor, on behalf of the Respondent.
Hearing details:
2020.
Newcastle:
7 May.
Printed by authority of the Commonwealth Government Printer
<PR719758>
1 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
2 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
3 Ibid
4 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
5 Ibid
6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
7 Ibid
8 Ibid
9 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
11 (2000) 98 IR 137
12 Ibid at [73]
13 RMIT v Asher (2010) 194 IR 1 at 14-15
14 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542]
16 Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 4453 at [5]; Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033 at [34]