DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jonathan Thein
v
Melbourne Health T/A The Royal Melbourne Hospital
(U2019/10872)

Application for an unfair dismissal remedy – valid reason for dismissal – application dismissed.

[1] Jonathan Thein’s employment with Melbourne Health trading as Royal Melbourne Hospital (Melbourne Health) was terminated with effect from 5 September 2019. Mr Thein commenced employment in January 2003 and was dismissed with effect from 5 September 2019. He had been employed by Melbourne Health, which employs approximately 9,000 employees, since 24 September 2012 as an environmental services employee undertaking various cleaning and related duties, including at times cleaning the hospital’s operating suites. His unfair dismissal application under the Fair Work Act 2009 (the Act) was made to the Fair Work Commission (the Commission) on 26 September 2019.

[2] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in subsection 394(2); whether the person was protected from unfair dismissal; whether the dismissal was consistent with the Small Business Fair Dismissal Code; and whether the dismissal was a case of genuine redundancy. Neither party put forward that any of the initial matters required consideration. In relation to the elements within s.396, I find that Mr Thein’s application was lodged with the Commission within the 21 day period for making such applications; that at the relevant time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] Evidence was given in these proceedings by Mr Thein. Evidence was given on behalf of Melbourne Health by Mr Dobre Milenkovski, its Support Services Manager and Mr Troy Cox, its Human Resources Manager.

[4] Mr Thein was represented by Mr Yasser Bakri, of Counsel, instructed by Ms Francesca Lai of WestJustice Law, and Melbourne Health by Mr Jack Tracey, of Counsel, instructed by Mr David Hartnett of K & L Gates. Permission for both parties to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

BACKGROUND

[5] Mr Thein’s employment was terminated with effect from 5 September 2019 for serious misconduct arising from a set of circumstances first brought to Melbourne Health’s attention in July 2019. On 16 July 2019 Ms Susan Garbutt, Perioperative Services Manager sent an email to her colleague Mr Dobre Milenkovski, Support Services Manager advising him that she had seen a number of staff in the dark in the Level 2 Theatre Tearoom where they spent an hour or more not working. Ms Garbutt’s report led to an examination of the situation by Melbourne Health; the issuing of allegations to Mr Thein for his response; and ultimately his dismissal. Mr Thein was not the only person dismissed arising from the circumstances; the evidence indicates that there was potentially a total of 19 people involved in the complaint. 1

[6] The complaint made by Ms Garbutt is set out in her email to Mr Milenkovski and another person sent on 16 July 2019:

“Hi Dobre

I have been coming in earlier this week and it has been an interesting exercise with regard to the 7 to 8 staff who are in our tearoom in the dark for over an hour or more at a time.

Can I ask what their shift time is and why they would be having such long breaks when there is clearly cleaning to be done? Particularly since we keep failing audits.

Graham can you give me the swipe access for the night shift last night as the tearoom is not a communal hospital meeting point. A great deal of our cleaning should be getting done on the afternoon shift and I think it is time to shake things up and ensure our most important area is getting cleaned properly

Kind Regards” 2

[7] Following receipt of the report from Ms Garbutt, Mr Milenkovski undertook certain actions generally and then certain actions specific to Mr Thein. The general actions were to appraise Melbourne Health’s management of the complaint and to then ascertain its veracity and develop a plan of action to deal with the highlighted problem. Mr Milenkovski’s general actions included these:

•  He informed his manager, Mr Michael McCambridge, of the complaint 3 and on 18 July 2019 he contacted Mr Troy Cox, a Human Resources Manager within Melbourne Health’s People and Culture Department and told him “that a number of the Environmental Services employees had been observed spending lengthy periods of time in the Level 2 Theatre Tearoom [tearoom] and it appeared that they may have been doing so during their working hours rather than performing their respective duties”.4

•  He then obtained and “viewed CCTV footage of the tearoom for the days that Ms Garbutt had mentioned in her email. I observed many environmental services assistants spending significant periods of time in the Tearoom while, on duty. Their primary role is cleaning the operating theatres. The nightshift ordinarily work from 10.30pm to 6.30am or 7am”. 5

•  Later, he met with Mr McCambridge and Mr Cox and others to report what he observed on the CCTV footage, with a more senior manager, Mr Davoli, Executive Director People and Culture, who requested he “view an entire week of CCTV footage to determine the extent of the conduct”. 6 He did that, giving evidence that:

“Over the next week or two I viewed CCTV footage for the period 9 to 15 July 2019. The footage showed that 19 Environmental Services employees had been spending significant amounts of time in the Tearoom while they should have been on duty.” 7

•  A product of his review of the video footage was a spreadsheet setting out the total amount of time each employee was alleged to have spent in the tearoom between 9 and 15 July 2019, as well as the percentage of the time this represented of each employee’s working hours.

•  These reviews led him to be “shocked to discover how much time the employees were spending in the Tea Room”. 8 His review in turn led him to have a further discussion with unnamed people within the People and Culture Department, but including Mr Cox and Mr McCambridge, in which he showed them his spreadsheet and “was told to contact each of the 19 employees to advise them they were being suspended while allegations against them were being investigated and to provide them with letters confirming their suspension during the investigation.”9

[8] Specifically, in relation to Mr Thein, Mr Milenkovski’s evidence is that the video review led him to form the view that Mr Thein spent about 30% of his time in a given week in the tearoom. In particular, Mr Milenkovski’s analysis suggested Mr Thein had remained in the tearoom for substantial periods over 5 shifts. 10 After forming these views, Mr Milenkovski contacted Mr Thein making allegations about the absences and seeking a response. He also spoke with Mr Thein about the subject on 30 July 2019, with Mr Thein recalling that the conversation included Mr Milenkovski saying “words to the effect that he had looked through CCTV footage and swipe card records and determined that I had been spending unauthorised periods of time in the Tearoom. I do not recall Dobre telling me that I could look at the CCTV footage or swipe card records if I wanted to”.11 Melbourne Health’s initial allegations to Mr Thein were those set out in the letter to him dated 30 July 2019 and included the following;

“The business has identified through an initial workplace investigation a series of incidents whereby your behaviour and conduct is of serious concern. In summary, the following allegations and preliminary investigation findings are outstanding for your response:

1. On 9 July you were observed entering the Level 2 Theatre Tearoom on 4 occasions for a total time 3 hours and 43 minutes. Deducting required break times and wash up time you made yourself unavailable to undertake your cleaning duties for a total of 2 hours and 34 minutes. This time away from your duties, on paid time, was unauthorised.

2. On 10 July you were observed entering the Level 2 Theatre Tearoom on 4 occasions for a total time 3 hours and 34 minutes. Deducting required break times and wash up time you made yourself unavailable to undertake your cleaning duties for a total of 2 hours and 28 minutes. This time away from your duties, on paid time, was unauthorised.

3. On 11 July you were observed entering the Level 2 Theatre Tearoom on 5 occasions for a total time 3 hours and 2 minutes. Deducting required break times and wash up time you made yourself unavailable to undertake your cleaning duties for a total of 1 hour and 56 minutes. This time away from your duties, on paid time, was unauthorised.

4. On 12 July you were observed entering the Level 2 Theatre Tearoom on 4 occasions for a total time 4 hours and 5 minutes. Deducting required break times and wash up time you made yourself unavailable to undertake your cleaning duties for a total of 3 hours. This time away from your duties, on paid time, was unauthorised.

5. On 15 July you were observed entering the Level 2 Theatre Tearoom on 5 occasions for a total time 2 hours and 33 minutes. Deducting required break times and wash up time you made yourself unavailable to undertake your cleaning duties for a total of 1 hour and 28 minutes. This time away from your duties, on paid time, was unauthorised.

6. Of the days highlighted above, you were engaged as the Supervisor of Environmental Services employees for the duration of the shift on 15 July 2019. Under your Supervision during these shifts, Environmental Services employees have been identified as having spent significant amounts of time in the Level 2 Theatre Tearoom both during times you were also present and at other times.” 12

[9] The same correspondence sought that Mr Thein meet with Mr Milenkovski and Mr Cox about the allegations with the requested meeting taking place on 15 August 2019, after being rescheduled. Mr Thein attended the meeting with a union representative as a support person on his behalf. Mr Milenkovski’s evidence is that he “showed them evidence of the alleged time fraud incidents and Mr Thein responded to each incident shown”, without specifically stating that he showed Mr Thein the CCTV footage. The discussion included Mr Thein saying words to the effect “that he sometimes spent time in the Tearoom while waiting for his next job”. 13 He would be notified of his next job through a pager he carried.14 Mr Thein also said in the meeting that he would like to apologise, that he loved his job and is hard working and that he had a family. He sometimes made a cup of tea in the room and waited for a page.15

[10] The evidence of Mr Milenkovski and Mr Cox is that they considered Mr Thein’s response in the meeting on 15 August 2019 but found it wanting. Mr Milenkovski again wrote to Mr Thein on 22 August 2019, advising that Melbourne Health was unsatisfied with his behaviour and conduct and that it regarded him as not having provided any reasonable response to its allegations. 16 In its correspondence, Melbourne Health summarised the circumstances about which it was concerned as Mr Thein having absented himself from work for a total of 11 hours and 26 minutes across 5 shifts. Mr Thein was directed to attend a further meeting with Melbourne Health on 26 August 2019. The letter advised Mr Thein the purpose of the meeting was to provide him with an opportunity to respond to its finding as well as giving him an opportunity to show cause to Melbourne Health as to why it should not proceed with the recommendation to terminate his employment.

[11] Mr Thein attended the scheduled meeting on 26 August 2019 with a union representative and, when asked to address the Melbourne Health findings and its consideration of the termination of his employment, said that “no one had ever spoken to him about the issue in the past” and that “he would pay back his salary for the time spent in Tearoom”. 17 Mr Cox’s notes of the meeting record that Mr Thein explained to both managers that he had a young family, with three children under 12 years of age.18 Mr Thein’s evidence is that he does not recall Melbourne Health having explained to him in this meeting where his responses were unsatisfactory or that if they did explain the situation he did not understand why that might be the case.19

[12] A further meeting was held by the Melbourne Health representatives with Mr Thein on 5 September 2019. At that meeting Mr Milenkovski advised Mr Thein his employment was to be terminated for reason of serious misconduct and provided him with a termination letter dated the day before, 4 September 2019, which confirmed his dismissal. The letter communicated:

“Having discussed the allegations with you on 15 and 26 August 2019, and having considered all the evidence available including your responses, and in the circumstances where a finding of serious misconduct has been made, we advise you that the outcome to this matter will be the termination of your employment effective Thursday 5 September 2019.” 20

[13] Although Mr Thein contests the fairness of his dismissal, he does not contest that he spent the time established by Melbourne Health in the tearoom. 21 It is, however, argued, that there was no misconduct involved; during Mr Thein’s employment he would complete his regular duties and then be allocated further ad hoc cleaning tasks via a pager which he was given by the employer. It is argued that Mr Thein “followed the practice of waiting in the tearoom while awaiting the allocation of these further ad hoc tasks” and that he was not aware that this practice was unacceptable to Melbourne Health.22 This practice was longstanding, “followed by the employees on the night shift for many years”. It was argued by Mr Thein that this contention was not disputed by Melbourne Health and that the evidence does not allow such a dispute if it were advanced.23

LEGISLATION

[14] The legislative provisions relevant to this matter are set out in s.387 of the Act, which is as follows:

“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.”

[15] Determination of whether the Applicants dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[16] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 24

“[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

•  a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 25

•  a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 26

•  it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 27

•  the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 28 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

•  the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 29” (original references)

CONSIDERATION

[17] I will deal with each of the criteria within s.387 in turn.

(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)

[18] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, common sense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 30

[19] Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response. Where the conduct involves serious misconduct, the principle established in Briginshaw v Briginshaw 31 may be relevant. While an “elevated standard”,32 the standard of proof remains the balance of probabilities but “the nature of the issue necessarily affects the process by which reasonable satisfaction is attained” and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion”.33

[20] It is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”³⁴ However, I “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”³⁵

[21] For there to be a valid reason related to the Applicant’s conduct, I must find that the conduct occurred and justified termination.³⁶ Further; “[t]he question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 37

[22] It has been said by the Full Bench that “the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 38 The Full Bench has also found there is not a “clear rule of law defining the degree of misconduct justifying summary dismissal”,39 and that it “is certainly well established that, for the purposes of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason)”. Further:

“[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) s4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).”” 40 (endnotes omitted)

[23] The evidence in the matter includes Mr Thein’s acceptance he was in the tearoom at the times put forward by Melbourne Health, but with an argument that he did not know he had done anything wrong and that he was available to return to work when required and notified by pager. Melbourne Health rejects the contention that Mr Thein was authorised to be in the tearoom and not work or that it was acceptable for him not to work until recalled to work by pager. While rejecting these matters, the evidence is that there was a culture of a large number of environmental services employees spending hours at a time during their shifts in the tearoom not working.

[24] The evidence from either side about the arrangement by which 19 people spent time in the tearoom not working but being paid and whether it was condoned is slight. There is no evidence before me of the organisation’s requirements being set out to Mr Thein or generally through workplace training or policies. Then again, there is also no evidence from associates of Mr Thein about how a workplace culture of going to the tearoom and waiting for calls either developed or was sanctioned by Melbourne Health or anyone associated with the organisation. There is not even evidence about how Mr Thein came to have a pager; who would make the pager call to Mr Thein; or why they may require him to return to work.

[25] There is evidence though of Mr Thein’s limited English. He is ethnically Karen, speaking S’gaw Karen, having migrated to Australia as a refugee in 2007. He gave evidence through an interpreter and gave that evidence by telephone. Other witnesses in the proceedings also gave their evidence by telephone, although not through an interpreter. Mr Bakri invited the conclusion that, to the extent a finding of credit was invited against his client, such would be unreliable, with the standard of interpretation a procedural fairness issue. 41

[26] While I do not go so far as to entirely accept that reasoning, it was apparent that Mr Thein has significant difficulties with English. There were occasions when the interpreter himself may not have entirely understood the nuance of the question they were relaying. Mr Thein relied entirely on the interpreter’s work, receiving questions and giving answers entirely in S’gaw Karen.

[27] What may be drawn from this is at the least a question over confidence that Mr Thein understood things communicated in the workplace in English, including his employer’s expectations or even the meetings which took place after Melbourne Health communicated its allegations to him. That question may be answered in part by looking to the fact that Mr Thein was, on occasion, appointed as a supervisor of other environmental services assistants and would receive paged notifications for a return to work.

[28] While there is no evidence before me about how Mr Thein came to be appointed as a supervisor, the appointment itself likely speaks against the proposition that Mr Thein was somehow isolated at work, unable to comprehend basic things in English; understand ordinary and accepted norms of workplace conduct; and to communicate with others about what needed to be done. A central part of his case is that there was no misconduct since he would be in the tearoom with a pager and that when paged he would return to work. While there is no evidence about whether the pager merely beeped or relayed a message it is likely at some stage when he was paged Mr Thein would have to engage with the request in English. There is no suggestion in the evidence that Mr Thein’s standard of English hampered his performance of his duties.

[29] In all, there is a convenience to the impression given of Mr Thein’s workplace language-based isolation which is not consistent with some of the other evidence. In particular, Mr Thein’s responses to Melbourne Health and the Commission about the allegations were sufficient, nuanced, and – importantly – consistent over time. The narrative that he would spend time in the tearoom when his work had finished, waiting with a pager to be recalled to work and that in any event the times he spent in the tearoom were not individually lengthy has been a consistent theme of Mr Thein’s responses. I doubt that had he really not understood the questions being asked of him that the response themes would be as consistent as they have been and not shift.

[30] That being so, can I be satisfied Mr Thein’s conduct was misconduct? In response to Mr Thein’s contention that the conduct for which he was dismissed “was his normal practice, a practice that he did not know was unacceptable to Melbourne Health”, 42 the Respondent argued:

“The notion that the Applicant did not know that time theft of this kind was not unacceptable to Melbourne Health is a weak attempt on his part to shirk responsibility for conduct that was obviously wrong, and known by him to be obviously wrong. An employee being paid for multiple hours - in the Applicant's case, almost a third (over 30 per cent) of his rostered hours over the five relevant shifts - while he is sitting in the tearoom not working is simply unacceptable and wrong.” 43

[31] Melbourne Health also argued that Mr Thein sought to downplay what he had done. The video evidence relied upon by Melbourne Health, on Mr Milenkovski’s evidence, showed Mr Thein in the tearoom for extended periods, yet on several occasions in his evidence he appeared not to accept that the periods were extended. Melbourne Health saw this as a reversion to things he said in the 15 August 2019 meeting where Mr Milenkovski noted Mr Thein as having mentioned shorter absences. The Respondent also argued that the product of this is a situation in which Mr Thein relied on there being:

“a widespread practice of time theft, and other employees also engaged in that practice, that somehow justified the Applicant engaging in that conduct and practice. This amounts to the arid and uncompelling argument to the effect that (to put it colloquially) "it was ok for me to do it, because everyone else did it". It is also an unjustifiable position for the Applicant to take, both as a matter of basic ethics and having regard to his duty of fidelity to his employer.”  44

[32] Melbourne Health argued that Mr Thein had failed in his ethical obligations and conspicuously failed to take individual responsibility for his own actions. 45

[33] By the time of its “show cause” correspondence, indicating to Mr Thein it considered his dismissal was warranted, Melbourne Health had put its allegations to him which had been substantially if not completely admitted by Mr Thein. He had conceded he spent time in the tearoom not working. The key points of difference between Mr Thein and his employer was that he did not know the conduct was not acceptable; that he was available to be recalled to work if paged; and that he thought the individual periods were shorter than alleged.

[34] The evidence before me shows Mr Thein’s conduct to be within a context of his behaviour and that of the other 18 employees. There is no evidence of any of the other people involved. There is no evidence, other than Mr Thein’s, of the paging system he worked under. There is no evidence of how long the behaviour had been going on for, how it arose, or how the other 18 decided when enough was enough and they needed to return to duty or end their shift.

[35] There is evidence though of the amounts of time each employee spent in the tearoom not working in the week in question and when those periods started and finished.

[36] Mr Thein’s core contentions about his use of the tearoom are threefold; he would take delayed breaks there; he would make phone calls to clarify pages he received; and he would wait there to be recalled to work:

“14. Because sometimes I would be required to work through my allocated breaks to answer an 'urgent' page, I sometimes took breaks in the Tearoom at alternative times which fit in with my duties. I visited the Tearoom when I needed to rest my feet for a moment, or needed to fetch a drink of water or a cup of tea. However, I never took breaks in the Tearoom when there were outstanding tasks for me to do (such as any of those outlined in paragraph 8 above).

15. I also used the Tearoom for other purposes, including the following:

a. I used the phone in the Tearoom to clarify the meaning of pages I received. If I didn't understand a task that had been paged to me, I would call my supervisors Ted or Shokry, so they could explain. Sometimes I would have to wait on the phone on hold (often for periods of 5 to 10 minutes, and up to 15 minutes) while Ted or Shokry were located.

b. After I finished all my regular duties (as set out in paragraph 8 above) I would wait in the Tearoom in between completing and receiving ad-hoc tasks, which were paged to me. Because I did not have one allocated area where I was expected to be between tasks, it made the most sense to me to be in the Tearoom. I do not recall being told by my supervisors Ted and Shokry or by Melbourne Health what I was expected to do between pages once I finished my regular duties.

16. No one from Melbourne Health ever told me that using the Tearoom for these purposes was inappropriate or unauthorised. It was the practice that I followed during my employment.” 46

[37] Mr Thein did not point in his evidence to the occasions in the week in question to the periods which were for the purpose of a delayed break or for clarifying a page.

[38] In addition to the evidence Mr Thein gave above about his reasons to be in the tearoom, he referred to the work he needed to perform since he became a full-time employee in July 2017. He would empty all the rubbish bins across the hospital; drive the rubbish truck through the basement of the hospital once all the bins had been emptied; clean the staff changing rooms on level two of the hospital; clean, vacuum and mop the post office and mailroom; conduct 'discharge cleans' of patient rooms, as required; and attend to other ad-hoc tasks communicated to him by a pager he was required to wear at all times. He also, on occasion, cleaned the operating theatres. 47 He believes he was the only environmental services attendant required to carry a pager.48

[39] I draw from these matters that Mr Thein may have had general reasons to be in the tearoom but that none of those reasons explain why he spent so much time in the tearoom. In the absence of cogent evidence about his legitimate reasons to be in the room it is simply implausible that he needed to spend 11 hours and 26 minutes in the room for those purposes, almost 1 in 3 of the hours for which he was paid over the 5 shifts involved. The possibility that the extensive list of duties to which he referred could be performed within only 2 in 3 of the paid hours is similarly implausible.

[40] The absence of any corroborative evidence about the extent to which there may have been recalls to work following a page also calls that reasoning into question. Mr Thein refers in the passage above to what would happen if he needed to clarify a page: “if I didn't understand a task that had been paged to me, I would call my supervisors Ted or Shokry, so they could explain”, with both Ted and Shokry being two others involved in the same allegations by Melbourne Health. Beyond that evidence, he has given no explanation about the source of the pages, their frequency or anything else that would support that waiting for a page was a real and likely event. In addition, there is no evidence that the practice of not working while waiting for a page was ever the subject of an instruction.

[41] The impressionistic defence presented by Mr Thein is of someone who was isolated by language in his day to day activities and who merely went along with an established culture. Because he did not understand things, he would follow the lead of others.

[42] That defence though is not consistent with his actual conduct.

[43] Mr Thein’s conduct puts him in the worst of the 19 employees investigated: 49

•  On 9 July 2019 he was in the tearoom not working for a period equal to or longer than 13 of the other employees;

•  On 10 July 2019 – longer than 10 others;

•  On 11 July 2019 – longer than 6 others;

•  On 12 July 2019 – longer than 3 others;

•  On 15 July 2019 – longer than 1 other.

[44] His cumulative absences were 30%; an absence greater than all but 11 of the others.

[45] The conclusions which must be drawn from the evidence are that Mr Thein had sufficient English functioning in the workplace to work for Melbourne Health for 7 years, and to be regraded to a full-time appointment after 5 years and to be appointed as an occasional supervisor. From those matters he likely had a sufficient understanding of Melbourne Health’s workplace to understand that not working when paid was contrary to its expectations.

[46] In the absence of cogent evidence about the acceptability of waiting in the tearoom for a recall to work after finishing duties, I am inclined to agree with the Respondent that he was engaging in time theft. The fact that Mr Thein made himself unavailable for work for 11 hours and 26 minutes over 5 shifts, a period longer than one single shift, and is in the worst of the 19 employees supports that likelihood.

[47] I find therefore that the conduct alleged by Melbourne Health actually occurred when Mr Thein made himself unavailable for work for 11 hours and 26 minutes over 5 shifts. Since the conduct was persistent, repeated and lengthy and indisputably worse than most others involved in the investigation I find it was serious misconduct.

[48] I am therefore satisfied on the evidence that Melbourne Health held a valid reason for its dismissal of Mr Thein related to his capacity or conduct (including its effect on the safety and welfare of other employees).

(b) whether the person was notified of that reason

[49] The evidence is that Mr Thein was notified of the reasons held by Melbourne Health for his dismissal in a letter given to him on 5 September 2019.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[50] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 50 While so, it is also accepted that “an opportunity to respond” amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path.

[51] A provision in predecessor legislation requiring there not be dismissal until “the employee has been given an opportunity to defend himself or herself against the allegations made” has been held to be a requirement not requiring any particular formality, being “intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section”. 51

[52] Mr Thein argued that he was not afforded an adequate opportunity to respond, arguing that having limited English he “has difficulty understanding everything that is said to him in English”. He submitted that the notes taken in the meeting held with him on 15 August 2019 recorded that he “struggles to understand” and noted that in his evidence Mr Milenkovski “accepted that at least to a degree Mr Thein has difficulties with the English language”. 52 Further:

“64. The evidence establishes that Melbourne Health was aware that Mr Thein may not have been completely understanding the discussion in the disciplinary meeting due to his limited English. In these circumstances Melbourne Health ought to have afforded Mr Thein the assistance of an interpreter in the disciplinary meetings that it conducted and by not doing so failed to give Mr Thein a proper or real opportunity to respond.

65. An opportunity to respond in which an employee does not adequately understand what is being said is no opportunity at all. Accordingly, this factor supports a finding that Mr Thein’s dismissal was unfair.” 53

[53] Melbourne Health rejected Mr Thein’s reasoning on these matters. It wrote to him on three occasions detailing the allegations, its conclusions and the outcome of the disciplinary process, being termination of employment. In its submissions it drew attention to Mr Thein’s witness statement which conveys his understanding of what was said or put to him in the meetings held with him. At the 15 August 2019 meeting, he provided a response to the allegations, which were not complex, and otherwise responded promptly and in a timely manner to all questions in that meeting. The Respondent argued that not only did Mr Thein understand what was being put to him and that he responded, but that his responses revealed he understood what was being alleged. 54

[54] The Applicant said, in his witness statement, written in English, that he has “difficulty understanding everything that is said to me in English”, 55 however what he told his union was possibly different, saying only that he “was not confident speaking English”56 and that in the meeting his “limited language skills” made it “difficult to understand what was being said at the meeting”.57

[55] Mr Thein’s evidence about the first disciplinary meeting, held 15 August 2019 suggests a sufficient understanding of the allegations made against him; he was asked why he spent so much time in the tearoom, and that he spent more than an hour there at a time, to which he responded “I never spent more than one hour in the Tearoom, otherwise I couldn't do my job”. 58 He did not do so because sometimes he would have to cover other staff when they were away, which was very stressful; however, he “would sometimes spend time in the Tearoom when I had finished my regular duties and was waiting to be paged with a job. However, I confirmed that I would only sit in the Tearoom after I finished all my duties”.59 The narrative of spending time in the tearoom at the end of duties and awaiting a page is confirmed in Mr Milenkovski’s notes of the meeting, with him recording Mr Thein as having said:

“I sometimes make mistake I have a family.

sometimes I make tea – I wait for a pager”. 60

[56] The notes of another manager who attended the meeting on 15 August 2019, Mr Maurice Davoli, confirm that Mr Thein responded about the allegation that he spent time in the tearoom and the length of time spent there noting “[indecipherable] GO TO THE TEA ROOM” and “ONLY STAYS 40 – 45 MIN”. 61 Mr Davoli also recorded in the notes both that Mr Thein “SEEMS (or “SEEKS”) TO UNDERSTAND WHAT THE ROLE IS ?” and “STRUGGLES TO UNDERSTAND – MISTAKE (or “MISTOOK”)/APOLOGIES – NEED TO SAY SORRY”.62 Mr Davoil’s notes came to be before the Commission following Melbourne Health’s response to an Order issued by the Commission for the production of documents, however neither party chose to call Mr Davoli to give oral evidence on the subject of the meeting.

[57] Mr Thein also gave evidence about the meeting held with him on 26 August 2019. The meeting had been convened for the purpose of him responding to the key Melbourne Health findings that he had removed himself from work for a minimum of 11 hours and 26 minutes across 5 shifts, and putting him on notice he was expected to respond to a recommendation to terminate his employment. Mr Thein’s recollection of the content is both comprehensive and nuanced. Taking into account Mr Thein’s claim he had limited understanding of what was discussed and that he then most likely related what had occurred to his solicitor many months later, perhaps through an interpreter, who then prepared the witness statement in English, the recollection is comprehensive:

“31. On 26 August 2019, I attended another disciplinary meeting with Dobre and Troy and was accompanied by Sendi Tsitas from the Health Workers Union. Before we entered the meeting room, Sendi advised me that it might help if I apologise to Melbourne Health and offer to pay back the unauthorised hours I spent in the Tearoom. As far as I could understand, the discussion at the meeting was as follows. During the meeting, I tried to explain that I didn't know that I wasn't permitted to spend time in the Tearoom once I finished my regular duties. I explained that because other people were also sitting in the Tearoom I thought it was okay; for example, some of the medical professionals and nurses would sit in the Tearoom after they finished their duties, so I thought it was okay for me to sit there after I finished my duties. Sendi also told Melbourne Health that I have a young family with 3 children under the age of 12 years old, who would be affected if I lost my job. I said "I'm sorry for what happened' and offered to pay back the hours if I had wrongly claimed payment for that time spent in the Tearoom, which is what the union suggested that I say. In saying these things I was expressing remorse for making a mistake and not meeting Melbourne Health's expectations. It was not my intention to make an admission that I had been knowingly engaged in misconduct. As I have explained above, until it was raised with me by Dobre I had no idea that Melbourne Health had a problem with me spending time in the Tearoom as was my practice.

32. During the first and second disciplinary meetings, Troy and Dobre asked me questions and I had to respond to them. As best as I could understand what was being asked of me, I answered these questions. They only asked me a few questions and I wasn't asked or invited to add further comments beyond the limited questions that they asked me.” 63

[58] Mr Thein’s Counsel’s submissions about his understanding of English are to do with what was said and understood by him in the disciplinary meetings and in the course of giving evidence. Noting that Mr Thein’s two witness statements were filed by solicitors acting for Mr Thein I have not been advised by Mr Thein or anyone acting for him that the material in the witness statements may not be relied upon. The defence offered in the witness statements is materially the same as the one he gave in the disciplinary meetings and, for that matter, in his oral evidence. Mr Thein had ample opportunities to walk back that defence if he had wanted but did not do so.

[59] Mr Thein was not asked about his recollection of the meeting held on 26 August 2019 in his oral evidence, however the recollection he gives above is broadly consistent with the handwritten notes of the meeting taken by Mr Milenkovski and Mr Cox, which include these records:

•  From Mr Milenkovski’s notes:

“Sendi – HSUA Rep Jonathan Troy Dobre 26/8/19

Troy opened the meeting. + purpose of the meeting was for Jonathan to tell us why we should not proceed with termination

Sendi – worked 8 years

– excellent employee

– very sorry for his action

– happy to make a mends (sic) + pay back the hours to the hospital

– this will never happen again

– he is asking for leniency

Jonathan – I love my job

– I do my best

– I cover I help

– I said in tearoom. I wait to be paged

– I do and jobs done

– I would like to apologise and Repay” 64

•  From Mr Cox’s notes:

“Jonathan Dobre 26/8/19

Sendi Troy 3:40pm

Sendi – 8 yrs work

– no disciplinary matters

– very sorry about what’s happened

– willing to pay back hours

– will never happen again

– young family – 3 children < 12 y.o.

– seeking leniency

Jonathan – love my job

– hard-working

– wait for pages to come in

– apologise, sorry.” 65

[60] An obvious difference between Mr Thein’s recollection about the 26 August 2019 meeting as recorded in his witness statement and the managers’ notes concerns the offer of repayment of the time in contention. Mr Thein recollects he put that offer forward, on the advice of his union, whereas the managers’ notes each attribute the offer to the union representative. It is also the case that Mr Thein’s witness statement gives details of the discussion which are not referred to in the notes (the matter of not knowing that he should not sit in the tearoom is an obvious example). Notwithstanding these differences, there is a consistency between the notes and the witness statements on the subjects they jointly cover. The comprehensive detail of the witness statement taken together with the manager’s notes shows there was a coherent response by or on behalf of Mr Thein. While his Counsel sought to qualify the extent to which Mr Thein’s evidence could be relied upon, and whether the responses he gave in the disciplinary meetings may have been affected by the absence of an interpreter, he did not seek for his client’s evidence to be reheard, or to back away from the matters set out in the witness statement.

[61] The evidence before me shows that Mr Thein understood the allegations against him. In particular, he knew that he was being challenged for spending time in the tearoom not working. At an early stage and after, he disputed that he would spend more than an hour in the room at a time. He did not know that he should not be in the tearoom not working; he thought it was okay to do so. He explained on multiple occasions that although in the tearoom he was ready and able to be recalled to work through the pager he carried, and that he did respond to pages. He was sorry that he had not met Melbourne Health’s expectations and, upon his union’s advice, he was prepared to pay back the hours he had wrongly claimed. He apologised and would undertake not to do this again if he was allowed to retain his employment.

[62] The Industrial Relations Court in Wadey v YWCA Canberra 66 considered a circumstance in which an employee (Wadey) had placed tape over the mouth of a child (Millie) under her supervision when the child was misbehaving. There was a contest in the trial over whether Wadey had been made aware of all the matters known to the employer and its Director (Lehmann) and whether as a consequence the employee had an opportunity to respond and defend herself. The Court held the following about the then applicable legislation:

“Conclusion - Section 170DC

Section 170DC provides:

"An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:

(a) the employee has been given the opportunity to defend himself or herself against the allegations made; or

(b) the employer could not reasonably be expected to give the employee that opportunity."

In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.

In the present case Lehmann met with Wadey. Lehmann drew to Wadey's attention the fact that an incident had been reported to her and gave Wadey the opportunity of responding. It would have been clear to Wadey that the termination of her employment might result from Lehmann's investigations. It may be accepted that on Lehmann's account of what occurred at the meeting, which I have accepted, all the particulars of the allegation were not put to Wadey. She was not told that it had been alleged the tape remained over Millie's mouth for 5 minutes and that her mouth had been taped shut. However, in Wadey's written response she addressed both matters. In the report she said, firstly, that she did not cover Millie's entire mouth to stop her breathing and, secondly, that the action lasted approximately 30 seconds. It is plain, in my view, that the manner in which Lehmann raised the matter was such as to alert Wadey to the need to deal with these matters in her written response. I am satisfied that the first aspect of s 170DC was satisfied in that Wadey was made sufficiently aware of the allegations to enable her to respond to them.

The second aspect of s 170DC is more problematic. I have already said that Lehmann's unchallenged evidence was that she made the decision to terminate after the meeting with Wadey and did so at 8.45pm on the evening of Wednesday 19 July. However, it may be accepted that in speaking to both Spicer and Baker when she had had only Crampton and Franklin's account of what occurred, Lehmann was creating an environment in which external advice she was receiving was, on any reasonable view, directing her to dismissal as the probable outcome of her investigation. However, on Lehmann's own account she did not view the version of events given by Wadey as materially different to the version of events she had been given by Crampton and Franklin. Whether others might have formed that view is presently beside the point unless it was patently unreasonable and evidenced a closed mind in which the opportunity to defend was only an illusory one. The relevant legal consideration is whether the opportunity given to Wadey was one in which she could defend herself. That is, was she given the opportunity of meeting the allegations and persuading Lehmann that her employment ought not be terminated. I am satisfied that Wadey was given that opportunity. The final decision was not made till after the meeting and it was made by Lehmann. It is true that Lehmann did not inform Spicer of Wadey's account. However, Wadey's account was known to Lehmann and she was the decision-maker. I am also satisfied that Lehmann had not made a decision to terminate before she spoke to Wadey and gave Wadey the opportunity of giving her version of events. I am not satisfied that the decision to terminate Wadey's employment involved a contravention of s 170DC. An issue was raised as to whether a procedure prescribed in the relevant award had been followed. It is a breach of the obligations imposed by the Act that may lead to a remedy under s 170EE. The only relevant legal issue is whether the obligation imposed by s 170DC has been met. In my view it has.”

[63] I have referred to and summarised Mr Thein’s response to the allegations made against him above. They were his responses at the time and were not added to in his oral evidence or in his Counsel’s submissions. Other than Counsel’s arguments regarding Mr Thein’s language difficulties and the matter of differential treatment between the Applicant and others (dealt with by me below in respect of s.387(h)), no new reasoning has been put before me. It is not argued that this is a case of mistaken identity; it is not argued that condonation of the practice was given by a specific identifiable person; it is not argued that Mr Thein’s time in the tearoom came about because of a reason associated with a medical or other pressing necessity.

[64] In giving his responses Mr Thein plainly knew what he was being challenged about by Melbourne Health. His defences to the allegations have consistently been that he was unaware the practice was problematic; that he recollected his time in the room was shorter than alleged; and that he was available for further work if recalled. He wanted Melbourne Health, on the basis of those defences, to give him a further chance and not dismiss him.

[65] Mr Thein also argued that he had not been told by Mr Milenkovski that he could look at the CCTV footage and swipe card records if he wanted. 67 If he had accessed those records, they may have shown him that his recollection of the length of time he spent in the room was faulty which may have altered his response, however I do not consider the lack of access to those materials impeded his capacity to respond. At all relevant times Mr Thein and Melbourne Health seemed to have a different view about the duration of his absences, and because of the very lengthy duration of the CCTV footage to be viewed (a whole week of video), it is unlikely that access to them would have materially shifted his defence or the response he desired to give Melbourne Health, the operative substance of which was that there was nothing wrong in him being in the room and he was there after he had completed my work, and he stayed there waiting to be recalled.

[66] These matters lead me to be satisfied that Mr Thein was given an opportunity to respond to the reasons for his dismissal, related to his capacity or conduct. He had an opportunity to defend and he took that opportunity, albeit that Melbourne Health did not accept the defence. The defence he gave has not shifted over time.

[67] I am satisfied that Melbourne Health gave Mr Thein an opportunity to respond to the reasons it held relating to his conduct for the termination of his employment.

(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

[68] The evidence shows there was no unreasonable refusal by Melbourne Health to allow Mr Thein to have a support person present to assist at any discussions relating to his dismissal, and he accepts this is a neutral factor in the Commission’s determination. 68

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[69] Melbourne Health argued consideration of this criterion is not a relevant consideration and is neutral, because the dismissal was in relation to Mr Thein’s misconduct, rather than performance. 69 Mr Thein argued to the contrary, putting forward that the criterion should be applied as being “intended to refer to the level at which the employee renders performance including factors such as diligence, quality, care taken and so on”.70 In this regard he relied on Mr Milenkovski’s acceptance in cross-examination that the Applicant was dismissed for unsatisfactory work performance:

“MR BAKRI: Yes, thank you. Mr Milenkovski, it's your view, isn't it, that Mr Thein was not performing his job in a satisfactory manner, yes?---Yes.

That's why you sacked him?---I did not sack him. It was a decision made by the organisation. That was out of my hands.

I withdraw that - that's why Melbourne Health dismissed him, because he was not performing his job in a satisfactory manner?---Spending time away from his duties, yes.” 71

[70] Mr Thein draws from this that it should be concluded that his dismissal involved a performance deficiency, which means s.387(e) is a relevant consideration. That factor should support a finding that Mr Thein’s dismissal was unfair, and the fact he never received any disciplinary warnings during his employment nor had any concerns raised with him about his performance supports a finding that the dismissal is harsh. 72

[71] Rather than supporting the proposition that such factors of performance as diligence, quality, and care taken will mean that misconduct characterised dismissals featuring those elements will require a consideration of whether the factors have been the subject of unsatisfactory performance warnings, the principal precedent relied upon by Mr Thien for the enlivenment of s.387(e), Annetta v Ansett Australia 73, is careful to draw a distinction between circumstances of capacity and conduct. The then applicable legislation, s.170CG(3) was framed as follows:

“(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service; and

(b) whether the employee was notified of that reason; and

(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee;

and

(d) if the termination related to unsatisfactory performance by the employee — whether the employee had been warned about that unsatisfactory performance before the termination; and

(e) any other matters that the Commission considers relevant.” 74

[72] Annetta v Ansett Australia involved a matter in which it was found at first instance that “the appellant had refused to do the duties he was requested to do and that the explanation he gave for the refusals was unreasonable”, with the termination of employment being on the basis of the refusal of duty, another matter of misconduct over which there was a conflict of evidence and an earlier warning on the person’s file. 75 The Full Bench then made the following findings:

“15 In a number of cases a Full Bench of the Commission has decided that the paragraphs of s 170CG(3) must be considered in determining a claim for relief in respect of termination of employment only in so far as they have application or are relevant to the circumstances of the case: Chubb Security Australia Pty Ltd v John Thomas (unreported, Print S2679, 2 February 2000, per McIntyre VP, Marsh SDP and Larkin C); King v Freshmore (Vic) Pty Ltd (unreported, Print S4213, 17 March 2000, per Ross VP, Williams SDP and Hingley C); Tenix Defence Systems Pty Ltd v Fearnley (unreported, Print S6238, 22 May 2000, per Ross VP, Polites SDP and Smith C). The approach to be taken to the duty cast on the Commission by s 170CG(3) is summarised in the following passage from the judgment of Moore J in Edwards v Giudice (2000) 169 ALR 89 at 92:

‘‘It is clear from both the language and structure of s 170CG(3) and the statutory context in which the subsection appears that the section requires the Commission to consider each of the matters referred to in pars (a) to (e), though the matter referred to in par (d) does not arise in all circumstances. Not only must the matters be considered but the use of the words ‘have regard to’ signify that each must be treated as a matter of significance in the decision making process: see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136, Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153 and Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121.’’

16 It is clear that s 170CG(3)(d) will not always be relevant but that in cases where it is it must be treated as a matter of significance in the decision-making process. Is s 170CG(3)(d) relevant in this case? We think not. In approaching the construction of the term ‘‘unsatisfactory performance’’ it may be significant that in describing a valid reason s 170CG(3)(a) distinguishes between capacity and conduct. Although neither term appears in s 170CG(3)(d) we think that performance is more likely to relate to capacity than to conduct. The preliminary question posed by par (d) itself is whether the appellant’s employment was terminated for unsatisfactory performance. While in a limited sense it was, because the misconduct was constituted by a refusal to perform work, we do not think that the conduct is unsatisfactory performance within the meaning of the paragraph. The paragraph is intended to refer to the level at which the employee renders performance including factors such as diligence, quality, care taken and so on. While there might be some overlap between the concept of unsatisfactory performance and the concept of misconduct, for example in relation to neglect of duty or poor timekeeping, misconduct of the kind which occurred in this case is in a different category. On one reading of the relevant paragraph the Senior Deputy President may have implied that conduct can never be categorised as unsatisfactory performance. Whether she did so is immaterial in this case. We are satisfied that the appellant’s employment was not terminated for unsatisfactory performance within the meaning of that term in s 170CG(3)(d). We reject the third ground of appeal also” 76

[73] I am satisfied that Mr Thein was not dismissed for reason of unsatisfactory work performance, but was instead dismissed because of his conduct. Despite the carefully crafted question to Mr Milenkovski and the somewhat inevitable response it received, there is no meaningful evidence before me that Mr Thein was dismissed for any reason other than misconduct. Without hesitation it may be said that since Mr Thein committed the misconduct established in this decision, he was “not performing his job in a satisfactory manner”. Such is obvious: what misconduct could be regarded as performance in a satisfactory manner?

[74] Accordingly, consideration of whether Mr Thein had been warned about unsatisfactory performance before his dismissal is a neutral factor in my consideration of whether he was unfairly dismissed.

(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

[75] There is no evidence before the Commission that the size of the employer’s enterprise impacted on the procedures it followed in effecting Mr Thein’s dismissal. Mr Thein accepts this is a neutral factor in the Commission’s determination. 77

(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

[76] The evidence shows that Melbourne Health had access to dedicated human resource management specialists or expertise about the procedures to be followed in effecting the Applicant’s dismissal. Mr Thein accepts this is a neutral factor in the Commission’s determination. 78

(h) any other matters that the FWC considers relevant

[77] Mr Thein argued his dismissal was unfair owing to differential treatment given to other employees whose conduct was also investigated arising out of the same set of circumstances, but not dismissed and that the criteria used by Melbourne Health to determine that Mr Thein should be dismissed is not objectively justifiable. 79 It was also contended that the circumstances of the application also require consideration to be given to Mr Thein’s personal situation.

[78] Mr Thein also argued that “CCTV footage was only viewed and analysed for the period 9 to 15 July 2019 and not in respect of any other period”, 80 suggesting that a wider period of analysis might lead to some different conclusions about his conduct. I do not regard that contention as being a relevant additional matter, or for that matter, relevant to whether there was a valid reason for Mr Thein’s dismissal. In the absence of a cogent explanation from Mr Thein about what might be seen in a wider period, it is a self-serving statement of the nature “look over here!” with no evidence of what might be seen over there.

Differential treatment/criteria for dismissal

[79] Mr Cox’s evidence records there were in fact different outcomes for different employees involved in the overall investigation:

“Out of the 19 employees identified on the CCTV footage, 11 were dismissed, 1 resigned and the rest were provided with warnings. The primary factor in determining the outcome for each employee was the amount of time they spent in the Tearoom instead of working”. 81

[80] Mr Thein particularly relies upon the contention that Melbourne Health used an unavailability threshold of 30% in making its determination of disciplinary outcome was arbitrary and unfair. 82 Broadly speaking and with two exceptions, any employee of the 19 who spent 30% or more of a shift in the tearoom was dismissed.83 Mr Thein’s Counsel summarised the situation thus:

“31. The only exceptions to the 30% threshold were the disciplinary outcomes given to Amanda Williamson and Medhat Botros. Ms Williamson was issued with a warning despite spending more than 30% of one of her shifts in the tea room during the period 9 to 15 July. Mr Botros was dismissed despite not spending more than 30% of one or more shifts in the tea room during the period 9 to 15 July 2019.

32. Mr Cox explained to the Commission that Mr Nayathodan was not dismissed because during the period 9 to 15 July 2019 which were assessed, he had spent just under 30% of his time in the tea room.32 The evidence provides that Mr Nayathodan spent 27.78%, 28.44%, 12.67% and 26.67% of the shifts in the tea room during the period. Mr Cox described Mr Nayathodan’s conduct as “quite serious”.

[81] While Mr Milenkovski had difficulties recalling who within Melbourne Health determined that the marker of 30% should be used, he accepted it as fair and reasonable. 84 Mr Cox’s evidence was that absence above the threshold was a “most serious level of transgression”, but that it was not the only factor considered.85 The threshold had been set in a meeting between he and Mr Milenkovski and Mr McCambridge, the Director of Facilities Management and perhaps another person as well, responding as follows to Mr Bakri:

“And who suggested the 30 per cent?---I don't recall.

You don't recall. What discussion was there about how you came up with the 30 per cent? Did you pull it out of the hat?---Again it was a varied discussion. We looked at the spreadsheet, and even though we saw that everybody had certainly - everyone on that sheet had certainly been doing the wrong things, we felt that, you know, we needed to take some - form some view about placing a - I guess a grading or a level of seriousness, and 30 per cent was the number that we came to. If I remember correctly I think we had it a little bit lower before we raised it to 30 per cent.

Okay. And am I correct in understanding that the general approach that the business arrived at in deciding what to do, which disciplinary outcomes to dish out, the general approach was that if employees were found to have spent more than 30 per cent on all on - I will try that again. The general approach was that if employees were found to have spent more than 30 per cent of one or more shifts in the tea room, that generally they were dismissed?---Generally speaking we've, yes, found that as a most serious level of transgression. And although that was one of - and a significant factor, it wasn't the only factor considered.” 86

[82] Melbourne Health submitted that it was open for it to adopt a general approach of considering whether, on average across an employee's shifts, the employee had spent more than 30 per cent of their time not working in the tearoom (excluding breaks). Such was “a fair, reasonable and objective measurement of the seriousness of each employee's conduct, but it was not treated as the only determinant of whether an employee was ultimately dismissed (albeit that the length of time spent in the tearoom by each employee was the primary factor)”. 87 It submitted that determination of an appropriate disciplinary outcome for each of the 19 employees required an exercise of a discretion by Melbourne Health:

“A primary consideration, which was also reasonable, was the amount of time spent in the tearoom absent from duty. As noted earlier, each employee had his or her own individual opportunity to respond to allegations made against them, and did so (e.g., PN665). Their responses were taken into account. The majority of the 19 employees were dismissed, like the Applicant was. Some were given warnings reflecting their own manner of dealing with or responding to the allegations, the overall gravity of their misconduct and the shorter periods of time when they were not performing their work duties.” 88

[83] The effect of the operation of the threshold is illustrated by the case of the Applicant and three other employees who were not dismissed, Ms Williamson, Mr Nayathodan and Mr Tesfay. Mr Thein’s closing submissions analysed the absences of each of the 19 employees, calculating the period of time each absented themselves from work, with the following shown as the percentage of time spent in the tearoom on shifts during the period 9 to 15 July 2019 for Mr Thein, Ms Williamson, Mr Nayathodan and Mr Tesfay: 89

•  Mr Thein – 33.96%, 32.08%, 25.83%, 38.54% – dismissed;

•  Ms Williamson – 19.37%, 34.59%, 28.13% – not dismissed; warning issued;

•  Mr Nayathodan – 27.78%, 28.44%, 12.67%, 26.67% – not dismissed; warning issued;

•  Mr Tesfay – 28%, 27.11%, 11%, 18.89%, 10.67% – not dismissed; warning issued.

[84] There is no clear evidence before the Commission as to why Ms Williamson was warned and not dismissed. It is though noted that Mr Milenkovski assessed her average percentage of unavailability for the week in question as 24%, compared with Mr Thein’s average of 30%. 90 In Mr Nayathodan’s case, the evidence about why he was not dismissed is merely that while his absences were “quite serious”, they were below 30%.91 There is no direct evidence about Mr Tesfay’s situation.

[85] The argument mounted in relation to Mr Nayathodan is that with 3 absences all above 26% his situation is objectively not far removed from Mr Thein’s. Mr Milenkovski’s calculation is that Mr Nayathodan spent 21% of his time in the tearoom not working and Mr Tesfay 19%. 92

[86] Mr Thein submitted his dismissal was the product of an “arbitrary and blinkered” approach taken as well as that the recommendation for his dismissal “did not include various material considerations including: that the Tea Room Practice was a longstanding and widespread practice, that the supervisors were engaging in the practice and that this may have given the employees the impression that it was acceptable, and Mr Thein’s personal circumstances which may render the dismissal harsh”. 93 Mr Thein also submitted that a matter to be taken into account is that, while called upon to act as a supervisor from time to time it was never explained to him that there was a higher level of expectation placed on him when he was covering the supervisor position.94

[87] A contention that two or more employees involved in the same incident, but with different sanctions meted out to them may lead to a finding of unfairness, however:

“… even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case. For example, a worker guilty of particular misconduct justifying termination might be shown leniency because of extreme need or stress arising from the serious illness of a close dependent. Another worker guilty of the same misconduct could not necessarily rely upon the leniency shown to the first worker as a basis for demonstrating that his or her termination was harsh, unjust or unreasonable. Many other examples could be constructed.” 95

[88] The response to misconduct will be a matter of discretion for the reason that the “time, place and circumstance of one breach, the circumstances of the offender and the implications for adequate administration of an enterprise, will seldom coincide”. 96

[89] There is little objective evidence available about why Mr Thein was chosen for dismissal or why others were not. The choice of the threshold of 30% absence as being the delineator above which dismissal would be considered is, as with all metrics, debatable. It could have been 25%; it could have been 50%; or it could have been some other number, or no number at all had Melbourne Health decided to use some other criteria.

[90] As a base metric, the threshold of 30% is reasonable, and most likely one that resolves in favour of the employee under consideration. It points to the fact that within a given week people paid to undertake work did not do so for just slightly less than one hour in three. If anything, there is a generosity to the metric and Melbourne Health could just have reasonably set the bar much lower.

[91] The other aspect of Mr Thein’s case in relation to the threshold is that it was either inconsistently applied (when compared with Ms Williamson’s case), or harshly or unfairly applied (when compared with Mr Nayathodan or Mr Tesfay). The situation of each of those other individuals may be distinguished from that of Mr Thein:

•  Mr Thein’s absence over the week in question were calculated by Mr Milenkovski as an average of 30%, with 3 shifts over 30%. On four of the shifts in question the aggregate absence was greater than 2 hours, and the aggregate on one of those exceeded 3 hours. His total absence for the week exceeded 11 hours over 5 shifts.

•  Ms Williamson had only 1 shift above 30% with an average absence of 24%. On only two of the shifts in question was the aggregate absence greater than 2 hours. Her total absence for the week exceeded 6 hours.

•  Mr Nayathodan had no shifts above 30% with an average absence of 21%. His aggregate absence on three shifts was for 2 or more hours.

•  Mr Tesfay had no shifts above 30% with an average absence of 19%. His aggregate absence was 2 or more hours on two shifts. His total absence for the week exceeded 8 hours over 5 shifts.

[92] These matters alone lean toward a finding that Mr Thein’s situation was distinguishable from the others to whom he has pointed. The aggregate absences for each shift are longer, as is the overall average. The picture emerges of Mr Thein consistently, not occasionally, absenting himself and not working. As detailed above, he was in the worst of the 19 employees investigated.

[93] In addition to these matters, it is also relevant to take into account that Mr Thein was, on occasion, a supervisor. That fact, together with the consistency of him not working lean against a show of leniency in his direction.

[94] To the extent that it is argued Mr Thein suffered from an arbitrary delineator when Mr Nayathodan’s offending was close to his and that if a discretion was afforded to Mr Nayathodan then so too should it be afforded to Mr Thein, there is a differential element to the latter’s conduct which counts against the exercise of a discretion. His misconduct was materially worse when examined from each available direction.

[95] The argument that Mr Thein suffered by being treated differentially to others is not made out.

Mr Thein’s personal circumstances

[96] The recommendation to dismiss Mr Thein was made by Mr Milenkovski to Mr Guminski, the Head of Employee Relations. The dismissal itself was understood to have been approved by Ms Ellen Flynt, the Executive Manager (or Director) of Human Resources. 97 Neither Mr Guminski nor Ms Flynt gave evidence. Mr Milenkovski’s recommendation for Mr Thein’s termination of employment does not mention any of the Applicant’s personal circumstances other than his date of birth and commencement date, with the recommendation stating:

“Reason for termination

Following a complaint received from Theatre management, regarding Environmental Services employees spending excessive amounts of time in the Level 2 Theatre tearoom, Mr Thein was observed on CCTV entering and leaving the tearoom during 5 shifts spanning 9 July 2019 to 15 July 2019. In all Mr Thein spent 11 hours and 26 minutes in the tearoom across his 3 rostered shifts in addition to allowable tea, meal and wash up time breaks. This total amount of time was unauthorised and is considered to constitute time fraud/theft (in that the employee was paid for time worked when he had removed himself from duties without authorisation).

In addition to this, Mr Thein has occasionally been allocated Supervisory duties and so should ensure that his adherence to appropriate break times is role modelled for his colleagues. This, and his failure to appropriately discharge his duties in a diligent manner in accordance with his contract of employment, adds gravity to the level of his misconduct.

A finding of serious misconduct has been deemed appropriate for Mr Thein's serious breach of his employment contract via the excessive unauthorised time he spent not performing his duties. As Mr Thein has not been able to provide sufficient reasonable mitigating circumstances which would deem termination as harsh, unjust or unreasonable, the termination of Mr Thein's employment is consequently recommended.” 98

[97] Other than Mr Thein’s family circumstance being mentioned to the Melbourne Health managers in the two disciplinary meetings held on 15 and 26 August 2019 99 there is no explicit evidence that Melbourne Health took Mr Thein’s personal circumstances into account in deciding to dismiss him.

[98] In the absence of any cogent evidence on the subject, it must be found that Melbourne Health did not take into account in making its decision to terminate Mr Thein any of his personal factors other than his age and length of service. There is then no evidence that it weighed those attributes against the misconduct it had established.

[99] The personal circumstances of Mr Thein presently before the Commission include that he is a migrant with poor English; that he worked for Melbourne Health for 7 years without having had any disciplinary warnings or other concerns raised with him. He is 57 years of age, married with three dependent children; and his wife’s employment had, at the time of the hearing, been significantly impacted by the COVID-19 pandemic. Overall, his family is in a dire financial position, which has an impact not only on Mr Thein and his direct family, but to relatives to whom he would provide financial assistance.

[100] I do not consider that the failure to take into account all of Mr Thein’s personal circumstances in taking its decision to dismiss him is such as to lead me to find that his dismissal was unfair, notwithstanding Melbourne Health had a valid reason for his dismissal. While the circumstances referred to are significant and no doubt overwhelming for him and his family, they are not unusual. Neither his family circumstance, age, language capability or skill level are particularly exceptional or beyond the norm. The absence of disciplinary warnings and his age are factors that might, in some circumstances, lead to an exercise of discretion in his favour. His length of service is also something which might be in his favour, but counter to that proposition, the nature of Mr Thein’s misconduct is such that it could be said that the seriousness of the conduct was aggravated by the length of his service – with it able to be said that he should have known better and potentially had more to lose.

[101] For a discretion to be exercised in Mr Thein’s favour because of his personal circumstances it would require evidence that the misconduct was not in the serious category found by me, or that it arose because of inadvertence or some other objectively reasonable circumstance. Those matters have not been found, and it follows that the factors do not lead to a finding that his dismissal was unfair.

Conclusion on the s.387 criteria

[102] After considering each of the criteria within s.387, I am satisfied that there was a valid reason for Melbourne Health’s dismissal of Mr Thein and that there were no substantial procedural defects or other matters which would cause me to find that notwithstanding there being a valid reason for his dismissal the dismissal was otherwise unfair.

[103] As a result, I am unable to find that Mr Thein was unfairly dismissed.

[104] The application for unfair dismissal made by Mr Thein is dismissed and an order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr Y. Bakri, counsel for the Applicant

Mr J. Tracey, counsel for the Respondent

Hearing details:

Melbourne (via telephone);
16 April;
2020.

Melbourne (via video);
11 May;
2020.

Final written submissions:

Applicant Outline of Closing Submissions, 4 May 2020.

Respondent Outline of Closing Submissions, 8 May 2020.

Printed by authority of the Commonwealth Government Printer

<PR720893>

 1   Exhibit R2, Witness Statement of Dobre Milenkovski, 18 March 2020, [4] – [7].

 2   Ibid, Attachment DM – 1.

 3   Ibid, [5].

 4   Exhibit R4, Witness Statement of Troy Cox, 18 March 2020, [4].

 5   Exhibit R1, Respondent Outline of Submissions, 18 March 2020, [5].

 6   Ibid, [6].

 7   Ibid, [7].

 8   Ibid.

 9   Ibid, [11].

 10   Ibid, [9].

 11   Exhibit A1, Witness Statement of Jonathan Thein with three attachments, 25 February 2020, [24].

 12   Exhibit R2, Witness Statement of Dobre Milenkovski, 18 March 2020, Attachment DM – 3.

 13   Ibid, [15].

 14   Ibid, Attachment DM – 4.

 15   Ibid.

 16   Ibid, Attachment DM – 5.

 17   Ibid, [17].

 18   Exhibit R4, Witness Statement of Troy Cox, 18 March 2020, Attachment TC – 1.

 19   Exhibit A1, Witness Statement of Jonathan Thein with three attachments, 25 February 2020, [30].

 20   Exhibit R2, Witness Statement of Dobre Milenkovski, 18 March 2020, Attachment DM – 7.

 21   Transcript PN 20; 764.

 22   Ibid, PN 21.

 23   Ibid, PN 764.

 24   Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.

 25   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 26   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 27   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 28   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 29   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 30   Selvachandran v Peteron Plastics (1995) 62 IR 371, pg.373.

 31   [1938] HCA 34, [(1938) 60 CLR 336.

 32   Wong v Taitung Australia Pty Ltd [2017] FWCFB 990, [11].

 33   [1938] HCA 34, [(1938) 60 CLR 336, p.363, p.350.

34 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

35 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

36 Edwards v Giudice [1999] FCA 1836, [7].

 37   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 38   Titan Plant Hire Pty Ltd v Malsen [2016] FWCFB 5520, [28].

 39   Sharp v BCS Infrastructure Support Pty Limited, [2015] FWCFB 1033, [36].

 40   Ibid.

 41   Transcript, PN 855.

 42   Exhibit A9, Applicant Outline of Closing Submissions, 4 May 2020, [104].

 43   Exhibit R5, Respondent Outline of Closing Submissions, 8 May 2020, [11]

 44   Ibid, [15].

 45   Ibid, [16].

 46   Exhibit A1, Witness Statement of Jonathan Thein with three attachments, 25 February 2020.

 47   Supplementary Witness Statement of Jonathan Thein, 10 April 2020, [20].

 48   Ibid, [8] – [12].

 49   Exhibit R2, Witness Statement of Dobre Milenkovski, 18 March 2020, Attachment DM – 2.

 50   Chubb Security Australia Pty Ltd v Thomas (2000), unreported, AIRCFB, Print S2679 [41].

 51   Gibson v Bosmac Pty Ltd [1995] IRCA 222 (5 May 1995), [(1995) 60 IR 1, at p. 7 (Wilcox CJ)].

 52   Applicant’s Outline of Closing Submissions, [61]–[63].

 53   Ibid.

 54   Exhibit R5, Respondent Outline of Closing Submissions, 8 May 2020, [21] – [22].

 55   Exhibit A1, Witness Statement of Jonathan Thein with three attachments, 25 February 2020., [5].

 56   Ibid, [27].

 57   Ibid, [29].

 58   Ibid.

 59   Ibid.

 60   Exhibit R2, Witness Statement of Dobre Milenkovski, 18 March 2020, Attachment DM – 4.

 61   Exhibit A7, Handwritten Notes from Meeting on 15 August 2019.

 62   Ibid.

 63   Exhibit A1, Witness Statement of Jonathan Thein with three attachments, 25 February 2020.

 64   Exhibit R2, Witness Statement of Dobre Milenkovski, 18 March 2020, Attachment DM – 6.

 65   Exhibit R4, Witness Statement of Troy Cox, 18 March 2020, Attachment TC – 1.

 66   (1996), unreported, Decision No: 542/96.

 67   Exhibit A1, Witness Statement of Jonathan Thein with three attachments, 25 February 2020, [24].

 68   Exhibit A9, Applicant Outline of Closing Submissions, 4 May 2020, [66].

 69   Exhibit R5, Respondent Outline of Closing Submissions, 8 May 2020, [26].

 70   Exhibit A9, Applicant Outline of Closing Submissions, 4 May 2020, [71]; with reference to Annetta v Ansett Australia (2000) 98 IR 233 and Rebecca Johnston Woodpile Investments Pty Ltd T/A Hog’s Breath Cafe - Mindarie [2012] FWA 2, at [45].

 71   Transcript, PN 606 – 608.

 72   Exhibit A9, Applicant Outline of Closing Submissions, 4 May 2020, [72 – [74].

 73   (2000) 98 IR 233.

 74   Ibid, [8].

 75   Ibid, [4] and [10].

 76   Ibid, [15] – [16].

 77   Exhibit A9, Applicant Outline of Closing Submissions, 4 May 2020, [75].

 78  Ibid, [77].

 79   Ibid, [84] – [87].

 80   Ibid, [26].

 81   Exhibit R4, Witness Statement of Troy Cox, 18 March 2020, [13].

 82   Exhibit A9, Applicant Outline of Closing Submissions, 4 May 2020, [56].

 83   Transcript, PN 406.

 84   Transcript, PN 429, 452; 433.

 85   Transcript, PN 677.

 86   Transcript, PN 675 – 677.

 87   Exhibit R5, Respondent Outline of Closing Submissions, 8 May 2020, [17].

 88   Ibid, [35].

 89   Exhibit A9, Applicant Outline of Closing Submissions, 4 May 2020, [29].

 90   Exhibit R2, Witness Statement of Dobre Milenkovski, 18 March 2020, Attachment DM – 2.

 91   Transcript, PN 437, 680.

 92   Exhibit R2, Witness Statement of Dobre Milenkovski, 18 March 2020, Attachment DM – 2.

 93   Exhibit A9, Applicant Outline of Closing Submissions, 4 May 2020, [37].

 94   Supplementary Witness Statement of Jonathan Thein, 10 April 2020, [6].

 95   Sexton v Pacific National (ACT) Pty Ltd, AIRC (2003) unreported, Print PR931440, [36].

 96   Electricity Commission of New South Wales t/a Pacific Power v Nieass, Full Commission of Industrial Relations Commission of NSW (1995) 81 IR 46.

 97   Transcript, PN 451.

 98   Exhibit A8, Recommendation of Termination Document.

 99   Re 15 August 2019, Exhibit A7, Handwritten Notes of Meeting on 15 August 2019; re 26 August 2019, Exhibit R4, Witness Statement of Troy Cox, 18 March 2020, Attachment TC – 1.