Introduction

Read the full decision here.

What happens when two work colleagues have worked harmoniously for almost a decade, suddenly cannot simply work well together. In this case gun licences, referencing mental health issues, a somewhat arrogant MD and a scathing FWC member.

In this unfair dismissal matter, the managing director represented the company and the applicant defend herself. The applicant having been employed for some 91/2 years, starting as a receptionist to administrative manager. The applicant’s “crime”: taking sick leave without approval, plus sending allegedly “confidential” emails to her private email address – an email account she shares with her husband (which had the FWC member somewhat mystified that she did not have her own email account).

The email

The email in question relates to the behaviour of the applicant’s co-worker (“ZA”), which the applicant passed on to another employee, who then forwarded to the medical clinic that was to assess the co-worker’s behaviour. It read:

“Hi

I am sure there is more, but this is a start

Bullet points

  • Short fuse
  • Staff freighted to talk to him in case he losses it (has smashed trays at work, kicked and threw a chair)
  • Victim
  • Selfish
  • Takes no responsibility for actions
  • Threatens to kill himself (putting 2 fingers to his head)
  • Said everyone is inconsiderate (on the road), so now doesn’t indicate, speeds and if he dies, so be it
  • Gun licence – guns and bullets at home
  • Said if he losses his guns then life is not worth living as these are the only things that make him happy
  • Money – will not spend as if he has to now that means his whole life has been a waste
  • Worries about everything to the extreme – laid awake at night worrying if neighbours were going make noise
  • wont drive into city and will not pay for taxi so IBS staff have to take him or pay for cabs
  • Doesn’t want to go on any medication, he said it is better for everyone else but no him, so not doing it
  • Should of stayed in Cairns????? Took drugs, drank and got a slut pregnant
  • Talked about trying something new, but said if he doesn’t like it after 3 months then its been a waste of money
  • Lives with mum
  • The only thing that would make him happy is more money, and opening up a gun range/place to ride bikes or quads
  • Doesn’t understand why he hasn’t got a girlfriend
  • Hates Brisbane and talks of moving back home
  • Depressed and miserable all the time
  • Doesn’t attend work Christmas parties…..”
[original text]

Following receipt of the above correspondence from the applicant, the other employee forwarded a copy of the email to a reception email account of the medical clinic to where the problematic co-worker was to attend an appointment. In doing so the other employee included the correspondence below:

“Hi

We are bringing [Mr ZA] in on Friday at 11am to see [doctor’s name] for his appointment.

I thought it best that we right down a few things that we are very concerned about and why the company is paying for his initial treatment.

The office is “walking on eggshells” at the moment so we have written down below an insight on to what is going on.

Please add this to his file. I will be the one driving him in on Friday.

He’s a good [occupation] but we are very concerned about his mental health.

Kind regards

[Name]

Bookeeper”

[original text]

Why MR ZA was being sent to a psychiatrist was not explained – only inferred.

Confidentiality Order

The Commissioner granted the “co-worker” a Confidentiality Order, so economising his name to “ZA”.

Co-worker v Applicant

The applicant stated that she asked Mr ZA a question three times, and after he ignored her, she asked him, “Are you deaf?”. He replied that she was a raging bull and that she had better watch herself. Her evidence is that he made that statement with real malice and hatred. Further, Mr ZA said to her, “We all know what you areyou’re a vindictive narcissist, and you better look that up”. The applicant replied that she knew what it meant to which he replied, “I bet you do”. The applicant went home early that day as she felt threatened.

Manager’s fear of being shot

The applicant met with management representatives the next day to explain what had happened. She requested Mr ZA be given a written warning as she felt threatened in the office. Her evidence is that a management representative said he didn’t want to do anything just in case it set Mr ZA off and he came in and shot them.

At no stage throughout the dealings with Mr ZA was there any conflict resolution undertaken. The best that management did was advise the applicant to stay away from ZA.

The applicant claimed that on many occasions Mr ZA would walk past her desk to leave the office, and he would say words to the effect, “Still here, you won’t be for long, narcissist”. The applicant acknowledged that on some occasions she snapped back at him.

MD has been watching too many courtroom dramas

In a fruitless attempt to go to the applicant’s state mind, the MD brought up domestic violence issue that the applicant had suffered. However, the Commissioner was on to this tactic, as the bringing this issue to the table brought forward the fact that this had occurred some eight years previous and was of no probity value; and painted the MD in a very poor light. Put plainly, it backfired.

Not to be beaten on this point, the MD then went on to suggest that the applicant’s stress was caused by a car accident and wrote off her car. The applicant provided correspondence from her insurer indicating that the vehicle was repaired and not written off.

Dismissed for serious misconduct

The applicant, being dismissed for serious misconduct, was not paid notice period and was six months from being eligible for long service leave (this being in Queensland).

The Commissioner’s own words…”pretty thick”

I will leave it to the Commissioner’s own words which are very pointed, noting that I have highlighted the juicy bits):

“Upon learning that she was likely going to be taking some time off work, [the MD] took it upon himself to declare that it would be paid as annual leave, and that if she did not return to work by Friday, he would be looking for somebody to replace her. Another employee (the same one who sent the email to the medical clinic] relayed this information to [the applicant]. [The MD] asks the Commission to accept his evidence that he did not consider dismissing [the applicant earlier] on account of her absence from the office, and when he said he would need somebody to replace her, he meant that he would need the job to be performed by somebody in her absence.

“It is difficult to accept [the MD’s] evidence on this issue when he said…that [the applicant] would have to be “pretty thick” if she didn’t get the message that if she didn’t attend work…she should know that she was being dismissed”.

The Commissioner goes to town on the MD

“I find [the MD’s] views on [the applicant’s] absence from the workplace…to be astounding. He is not a doctor, yet he considered that she was retaliating against him. He had no regard for the medical certificate obtained by her, issued by a medical practitioner, and in these proceedings appeared to me to unnecessarily eager to discuss the fact that she had, many years ago, and not in her present relationship been a victim of domestic violence. Why he did so appears to me to be perverse and demonstrative of his views of [the applicant]. It is not clear why [the MD] thought it appropriate to raise this issue. Did he think the Commission would think less of [the applicant]? Think her weak? Think her a victim? Think her the continual subject of abusive men? The fact that [the applicant] was a victim of domestic violence many years ago has no bearing on why [the applicant] was declared absent from work at this relevant period of time…[The MD] need be assured the Commission thinks poorly of [the MD] for even raising the issue, not [the applicant] for her past unfortunate circumstances.

“Further…[the MD} rudely suggested that perhaps it was [the applicant] and not Mr ZA who should have been seeing a psychologist. [The MD’s] contempt for [the applicant] was evident, and in my view unpalatable, unnecessary and unwarranted. It appeared to me during the hearing that [the MD] simply wanted to point-score against [the applicant], yet he did not impress me at all, nor did he succeed in his attempt to point-score.

“This is evident [when] I was questioning [the MD] if [the applicant] needed his permission to be absent from work on account of being ill and he laughed at the question put to him. His contempt for the question being put demonstrated to me the arrogance that [the MD] dealt with [the applicant’s] absence; how dare she be ill and not well enough to attend for work!”

Permission not required to take sick leave

“[The applicant] did not need [the MD’s] permission to be absent from work…She was excused from attending for work by a medical practitioner…who declared on a workers’ compensation medical certificate that she would be examined again on 11 April 2020.

“[The applicant’s] obligation to the Respondent was to inform the Respondent of her inability to attend for work and provide evidence of such. She met this obligation and did not attend for work during the period of her incapacity.

“Where [the applicant] did not need to obtain consent to commence taking leave on account of her incapacity, she did not need to consult with the Respondent to make a workers’ compensation claim. [The applicant] had statutory entitlements regarding personal leave per ss.95, 69, 97, 98, 99 of the Act, and a statutory entitlement to make a worker’s compensation claim. Relevantly, s.352 of the Act provides that:

‘An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.’

“Similar provisions apply at s.772 of the Act. Ms Tracy was certified unfit to attend for work until 11 April 2020. She provided the evidence required at regulation 6.04 of the Fair Work Regulations 2009.

“[The applicant] left the Respondent short-staffed during a critical time for the Respondent’s business. This is a fact, not a feeling, sentiment or perception. Her inability to perform work would have been the same if she had been suffering from gastroenteritis, influenza, or any other ailment preventing her from performing work. It was [the MD’s] inference that she was deliberately pulling a “strike” on the Respondent that contributed to the Respondent’s decision to dismiss her.

“For the above reasons, one of the reasons for the dismissal, being the Respondent’s assertion that [the applicant] took unauthorised and unwarranted leave in a time of crisis is not a valid reason for the dismissal.”

Breach of confidentiality

“Primarily, the Respondent contends that [the applicant] either did not have exclusive use of the email account shared with her husband, or it was her husband’s email account and not hers. The termination letter states the following, suggesting that it was because it was sent to [the applicant]:

‘You not only betrayed this trust by taking unapproved leave at a time of national crisis but you also forwarded sensitive internal emails to other parties [the applicant’s husband] on [date/time] using the admin account. This is a direct violation of [the respondent’s] Policy and directly affects government restrictions on OTP payroll conditions for suppliers. It is also a violation of your Employee Confidentiality Contract and Employment contract. This violation alone is sufficient cause for instant dismissal.’ [The Commissioner’s emphasis].

“[The MD], put to [the applicant] that it was odd that a woman would share the same email account as her husband. [The applicant] responded that she had done so for around three years. I do accept that it is an odd thing to do; [the applicant] would no doubt have had her own personal email account prior to meeting her now husband, but now shares use of his account which uses his name. Why [the applicant] gave up using a prior, personal email account has not been explained. I accept her evidence that she and her husband share the account. I do not accept the inference that it is solely an account for [the husband’s] use and therefore it would mean there was a further improper reason for sending the emails to [the husband’s] email account.

“While the forwarding of work emails to an employee’s email account (or one that is shared with a family member) should be discouraged, in these circumstances I do not accept that it constituted a breach (or if it did it was not a serious breach) of the Respondent’s policies. Nor do I find that at common law it would constitute a breach or serious breach of confidentiality obligations an employee in [the applicant’s] position owes to the Respondent.

“The most ‘damning’ email included in the emails [the applicant] sent to herself…is the one prepared by her, with her own thoughts and opinions on Mr ZA’s psychological issues. It is clear that this is what she considered to be significant issues with Mr ZA’s psychological state in [at the time], and she listed them and forwarded them to [another employee]. [The other employee] then added her own email to provide context to the relevant medical practitioner who was shortly going to be examining Mr ZA.

“There was nothing company-sensitive in the material…I do not accept that the material [the applicant] sent herself would constitute the defined term of Confidential Information…Any reliance on it then being Confidential Information and a breach to share is not then supported.

“I accept [the applicant’s] evidence that she was encouraged to provide as much relevant information to her workers’ compensation claim as was necessary. [The applicant’s] own opinions on Mr ZA’s psychological condition was, in my view, not overblown or overstated as asserted by the Respondent. She held genuine and real concerns, based on Mr ZA’s various statements to her over a relatively short period of time that Mr ZA was unstable.

“I accept [the applicant’s] evidence that Mr ZA put two fingers to his head and suggested that he didn’t want to be here (as here on Earth, not at work or in his location as suggested by him in his evidence). I accept [the applicant’s] evidence that she was dealing with a real scenario of an employee violently punching a chair, intimating suicide by putting two fingers to his head, and she demonstrated the appropriate duty of care to Mr ZA by meeting with him privately and investigating the issue.

“[The applicant] reported all of this information at the time. [The MD] has, in my view, now turned on [the applicant] and conveniently forgotten the seriousness of the issue because of his loyalty to Mr ZA. He approved and endorsed the medical examinations of Mr ZA with the information he had before him at the time. It appears to me that [the MD]…had no regard to [the applicant’s] sizeable length of service with the Respondent and her exemplary employment history, but reverse engineered a determination that [the applicant] was the root cause of Mr ZA’s mental health issues. This is so despite a very good relationship existing between [the applicant] and Mr ZA for the period late 2010 to August 2019.

“Where [the applicant]left the meeting of 18 March 2020 in tears, with [the MD] suggesting she might find another job, and he would choose Mr ZA over her if necessary, it is understandable that [the applicant] might gather for herself a modest amount of material generated during work time to assist with her in making her workers’ compensation claim.

“The mere fact that [the husband] might read these emails is, in the circumstances, not an important issue. [The applicant] no doubt discussed with [her husband] the concerns she held about Mr ZA’s psychological state, including her concerns regarding his access to firearms.

“I do not accept that the material sent by Ms Tracy to herself constitutes employee sensitive medical information. All it simply confirms is that Mr ZA had medical appointments which is a fact. The emails do not contain medical information.

“The Respondent’s submissions make it clear that the Respondent was more concerned with Mr ZA’s potential emotional breakdown than that of [the applicant]. This is so because of the more valued position Mr ZA holds within the Respondent and his known fragile state. [The MD] was, as is demonstrably clear, more concerned with Mr ZA bringing a workers’ compensation claim against the Respondent than he was about [the applicant] doing the same. When she did, he immediately dismissed her.

“Further…the Respondent appears to me, to make some concession that if [the applicant] is correct, the Respondent’s employees might be at risk if Mr ZA had a psychiatric breakdown. This is supported by [the applicant’s]…evidence…where [the MD] suggested that Mr ZA should not be set off as he could come into the office and shoot people up

“I reject the Respondent’s assertion that [the applicant’s] act of sending the emails that she sent to herself would affect the Respondent’s reputation in the marketplace or with the ATO as a trusted data repository and processor. There is no evidence that this constituted any sort of data breach, was reportable, or would otherwise become widely known.

“For the above reasons, one of the reasons for the dismissal, being the alleged breach of confidentiality is not a valid reason for the dismissal”.

The Commissioner becomes medically trained?

In what to me sounds contradictory, in that the Commissioner noted the lack of medical training of the MD relating to the sick leave certificate, went on to comment:

“I accept [the applicant’s] evidence that Mr ZA would, at times, ask her if she was still at work and call her a narcissist. He clearly was projecting all of his own issues on her, making out that they were her fault and not his. I have no doubt she held concerns about his conduct, yet she was still doing her work right up until 18 March 2020 when [the MD] suggested she should find other work because of the conflict in the office”.

[…]

“For the above reasons, one of the reasons for the dismissal, being the ongoing conflict and alleged bullying of Mr ZA since August 2019 is not a valid reason for the dismissal”.

The Commissioner rips into the MD in concluding

In finding that there was no valid reason for the dismissal, the Commissioner summarised the matter as follows:

“The MD’s] conduct in the manner of the dismissal is, in my view, one of the poorest displays of a respondent I have seen since being appointed to the Commission. One of the reasons for the dismissal was [the applicant’s] absence from work whilst incapacitated. During the hearing [the MD} made further statements that she would have been “thick” if she had not have known that she would have been dismissed from the role if she didn’t return to work.

“Unfortunately for [the applicant], [the MD] placed his loyalties with Mr ZA and determined that he would rather see Mr ZA remain in the business than [the applicant]. Fortunately for [the applicant], she no longer has to work for [the MD]”.

The Commissioner then philosophises that:

“When one runs their own business, it would be helpful to have some self-reflection of one’s own conduct. It is almost impossible to imagine how [the MD] could reason that the Commission would not find for [the applicant] with all of the information before it. This is so, despite [the MD’s] “declared victory” in having [the applicant’s] workers’ compensation claim rejected. The considerations before WorkCover Queensland are not the same as the considerations before the Commission.

“I find that [the applicant’] dismissal was harsh, unjust and unreasonable. Whilst it is not necessary to determine all three grounds, I find that [the applicant] was unfairly dismissed”.

Remedy

The Commissioner ordered that the applicant be awarded compensation to the maximum allowed, that is six month’s pay plus superannuation ($32,850).

However, in a twist, the Commissioner ordered that the applicant produce to his chambers bank statements for the period from her dismissal to the date of the hearing to determine whether the applicant had earnt any income during this period (as this would ordinarily be deducted from any compensation order).

A nod to COVID-19

The Commissioner ended on:

“I regret that there has been a sizeable delay for the parties in having this matter determined by the Commission. This is due to the large number of reserved decisions I currently have before me as a result of the spike in various applications in this very unusual year. I consider it would not have been appropriate for the material above …to have been sought in the lead-up to this decision being released as it would have foreshadowed that I have made a finding of unfair dismissal”.