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Introduction

Full decision can be read here.

What happens when an employee, whilst on leave, refuses to return, or allowed to be collected, the employer’s vehicle?

In this case it resulted in the employee’s dismissal for serious misconduct. Not before numerous emails to and from the company and the employee, including (from the employee): “[U]se [sic] ain’t getting s**t from me or my property especially when use [sic] can’t even pay me what I signed up for”?

The short answer is that the Deputy President, presiding over this matter, found that the company had a valid reason for dismissing the employee, and that the dismissal was not unfair. The application for unfair dismissal was therefore dismissed.

This decision also reinforces the importance of having contracts of employment and company policies (in this case pertaining to the use of company vehicles). It also provides direction on “serious misconduct”.

Background

The events leading up to the applicant’s dismissal:

  • The applicant commenced employment with the company October 2017 as a field tester. For the purpose of carrying out her duties as a field tester, the applicant was provided with a motor vehicle, which was owned by the company.
  • The applicant’s employment contract set out the following concerning a Company Motor Vehicle:

“You will be provided with a fully maintained company vehicle for work purposes and limited personal use. The provision of this vehicle is subject to the [the company’s] Vehicle Policy and Guideline.

“It is a condition of all arrangements that you maintain all of the necessary licences, obey all applicable road rules and never drive the vehicle with drugs or alcohol in your system”.

  • Whilst the employment contract stipulated that the provision of the company vehicle was subject to the company’s Vehicle Policy and Guideline, the applicant said she was not provided with the Vehicle Policy and did not have access to it as her email/intranet access was not set up. However, apart from her assertion, there was no evidence to show that he did not have access to the company’s intranet.

Workers Compensation claim

On 13 September 2019, the applicant made a workers’ compensation claim and was assessed as having no capacity to work from 12 to 19 September 2019. The applicant gave evidence that she had been repeatedly bullied throughout her employment with the company, not treated the same as everyone else on several occasions, had been stalked on fake job sites, and his anxiety had become unbearable – hence the reason for taking leave.

The company directed that the applicant return the vehicle or arrange or make it available for collection by the company whilst she was on leave.

Given the lack of cooperation in seeing to the vehicle’s return, the company’s HR Manager formalised a directive that the vehicle would be collected at a specific time and address and advised that the applicant should remove any and all personal items before the time of collection.

The applicant’s response at this point was: “Sorry I’ll be unavailable to do so until my contract or employment has ended. This car is part of my package and it stays with me”.

Which in turn led to the email the following day: “[U]se [sic] ain’t getting s**t from me or my property especially when use [sic] can’t even pay me what I signed up for”.

[Ed: At this point I would like to apologise to the applicant for the failure of Australia’s education system].

The company responded by advising that the vehicle was “a tool of trade” vehicle, and not part of the applicant’s remuneration package and if the vehicle was not made available for return, the company would terminate her services.

This, being an impasse, resulted in the company directing its solicitors to issue the following letter:

“Dear[applicant]

I act for [the company].

I understand that you are representing [the applicant] in relation to an employment dispute with [the company].

[The applicant] is absent from work due to illness and has asked [the company] to direct communications to you.

Whilst [the company] does not concede that it is obliged to comply with any directive from [the applicant] about who to speak to, I have been asked to contact you in this instance in the hope that you can assist [the applicant] to understand her obligations and responsibilities.

  • [the applicant] has exhausted her paid personal leave, and by agreement annual leave, but seems to be under the misapprehension that she will continue to be paid for continued absences after all of her leave has expired.
  • [the applicant] has retained the [company] vehicle which she used in the course of the work and has threatened to sell it if she does not receive payment for her absence. The vehicle is a tool of trade which [the applicant] does not have a right to continue to possess. [The applicant] has been asked to make arrangements for its return but she has repeatedly refused.
  • These, and other issues with [the applicant’s] conduct (including evidence of unsafe driving) mean that there is a serious disciplinary discussion that must occur when she returns to work. By refusing to return the [the company’s] vehicle [the applicant] is only making these matters worse.

I would appreciate if you could contact me as a priority to confirm arrangements for the return of the [the company] vehicle. If [the applicant] fails to return the vehicle she may be considered as having refused a lawful and reasonable request which could give rise to a basis to terminate her employment…”

There was no reply from the applicant’s representative, however there were email exchanges between the applicant and the company; and 18 and 21 October 2019, two company employees attended the applicant’s residence and unsuccessfully attempted to retrieve the company vehicle.

The applicant was given an ultimatum by email directing the applicant:

“…to return the company vehicle by no later than 3:00 pm on 25 October 2019 [and] if you do not comply with this direction your continuing serious misconduct will result in your employment being terminated”.

The company texted the applicant alerting her to the email.

The applicant’s response was “[N]o worries I’ll see use [sic] in court”.

Finally, the applicant agreed that both the company vehicle and mobile phone could be collected from her residence on 4 November 2019 between 12.00-3.00 pm. Both were collected and both were damaged – the phone beyond repair.

Following the collection of the company’s property, the applicant sent abusive text messages to the company, including:

“How dare u bring u my f**king personal life u maggot c**t…F**king piece of s**t are U absolutely discust [sic] me…Might just get into ur [sic] personal life hey! Know a few people that will be able to help me out with a dog c**t like u…Want to talk me at fake sites…Yuck”.

Lawful Direction

The Deputy President concluding that:

“There could be no doubt that the direction to return the company vehicle was lawful and reasonable. An employer clearly has authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable”.

Citations

In R v Darling Island Stevedoring and Lighterage Co Ltd; Ex part Halliday, (Darling Island Stevedoring) it was held:

“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable”.

The Full Bench in Briggs v AWH stated that the determination of whether an employer’s direction was a reasonable one did not involve an abstract or unconfined assessment as to the justice or merit of the direction. The employer therefore is not required to demonstrate that the ‘direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties’. Adopting the approach identified in Darling Island Stevedoring, the Full Bench cited Dixon J, quoting:

“But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled”.

The applicant’s employment contract

The terms of the applicant’s employment contract and the Vehicle Policy, clearly stipulated the circumstances in which a vehicle was provided, the obligations that fell upon the employee, and that ultimately the company retained sole discretion concerning the usage of the company vehicle whilst on leave. There was no compelling evidence adduced to support the assertion that the company vehicle formed part of the applicant’s employee entitlements (salary package), or that she had unfettered access and use of the company vehicle whilst on leave.

Common practice

The work carried out by the company’s employees required that the company provide them with vehicles, and it was common practice for the company to direct its employees to return the vehicles whilst on leave.

Notification of the reason and an opportunity to respond

The Deputy President provides an advisory that:

“At a general level, the case law makes it plain that when it comes providing an opportunity to respond, the process does not require any degree of formality, and that the requirement is to be applied in a common sense practical way in order to ensure that the employee is treated fairly.

“The Full Bench in Royal Melbourne Institute of Technology v Asher in citing a number of cases:

“Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical common-sense 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”.

Serious misconduct

The Deputy President’s decision considered the term “serious misconduct”’, stating that it does not operate as a fixed standard for the determination of the type of conduct by the employee which may warrant summary dismissal; citing Sharp v BCS Infrastructure Support Pty Limited, the Full Bench (in citing other decisions):

“[T]here 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”.

Further citing:

“Wilful or deliberate behaviour amounting to serious misconduct is conduct which strikes at the heart of the employment relationship. In North v Television Corporation Ltd Franki J stated:

“It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions”.

Onus of proof on employer

The Deputy President finding:

“Clearly, [the company] bears the onus of establishing the serious misconduct. The applicable standard of proof is on the balance of probabilities, but the more serious the allegation, the higher the burden on the employer to prove the allegation”. [My emphasis].

Common law

The DP conducing that…

“I am satisfied that [the applicant’s] misconduct was manifestly serious and in clear breach of the obligations she had under the Vehicle Policy, her employment contract and general duties as an employee. The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and, importantly, mutual trust. [the applicant] clearly had the trust of [the company] to do what was right concerning the company vehicle, that was to return it on direction to do so. It was after all not hers to keep or to sell. But her actions manifested a wilful disregard of the repeated lawful and reasonable directions of [the company]”. [My emphasis].

“It is therefore my conclusion that the ‘trust’ and ‘confidence’ essential to the relationship of employer and employee had been destroyed. There was, in my view, a valid reason for terminating the employment of [the applicant] based on her serious misconduct”.

Endnote

There was no mention of the status of the workers compensation claim.

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5064.htm

This matter was decided by Deputy President Anderson in the Fair Work Commission and involved the dismissal (for serious misconduct) of a Hospital Attendant undertaking his duties on a long-distance train journey (the “Ghan”).

In summary, this matter involves a “stroppy” employee, who decides to decamp his train (his place of work) in Alice Springs, and then whilst making various threats demands that his employer foot the bill for flight home.

This was an extraordinarily long decision, with the DP finding that the applicant did commit serious misconduct and the application was therefore dismissed. The DP was critical of the respondent not having a “fly home” policy in writing.

Two interesting factors to this case were firstly we learn, when dismissing a person for serious misconduct requires the respondent to prove that it was in fact serious misconduct (ie reverse onus of proof, as per an “adverse action”) and secondly, the distinction between misconduct and serious misconduct.

However, the onus of proof when determining is the dismissal was “harsh, unjust or unreasonable” is up to the applicant to prove that the employer breached the Fair Work Act.

Background

In the words of the DP:

“[The applicant] is a middle-aged man who commenced work with [the respondent] on 27 November 2017 as a casual Hospitality Attendant working these rail journeys…[he accepted a role with the respondent] after more than twenty five years of experience working in both photography and in hospitality in England. He had experience managing major hospitality venues in London. He considered himself overqualified for the work of a Hospitality Attendant, but nonetheless took the role and enjoyed it”.

It was agreed that that the casual work was “regular and systematic”, therefore the fact of his causal appointment was not an issue.

The applicant and his partner had recently enjoyed the arrival of a newborn and requested of [the respondent] that he be placed on rostered that allowed less time away from home. Typically, his roster of the Ghan required him to be away from home for six days. The respondent was unable to accommodate this request.

The applicant learnt that his baby was unwell when arriving at Alice Springs (a long way from his home in Adelaide). He requested of his employer that he be immediately flown home at the employer’s expense. He also claimed that he was also feeling very unwell. The respondent refused his request, stating that he could remain on the train, in his cabin and would be home by midday the next day. He would not be required to carry out his duties.

There was a side-issue of applicant wishing to swap his hospitality duties and act as a guide for a tour of Alice Springs. Whilst the swap was agreeable to the person who was rostered as a guide, it was denied by local management.

This led to a chain reaction of events, where the applicant became (in my words) pedantic, needy, and aggressive.

Who to believe?

There were a conflict in facts that the DP had to decide on who was in fact the most truthful – the applicant or the respondent. The DP noting that the applicant “…placed some gloss on his own conduct though he did concede certain indiscretions under questioning and was generally not evasive”.

[Ed: Please see my previous article on how conflicting arguments are to be dealt with by the Fair Work Commission.]

The facts in detail
The drunk
• Whilst on the trip to Darwin (on Monday 11 February) the applicant was told by an elderly passenger that another passenger (who had drunk too much alcohol) had claimed, wrongly, that [the applicant] had made a comment of a sexual nature about that (drunken) passenger’s wife.
• This distressed the applicant who then approached the Train Manager, wishing his name to be cleared. The Train Manager assured the applicant that there was no reason to worry as the passenger was clearly drunk and that there were other passengers that would corroborate that he has done nothing wrong and it was therefore a “non-issue”.
• Unfortunately,this “non-issue” resulted in the applicant losing sleep over the incident which was playing on his mind and feared other staff would be gossiping about the complaint, affecting his reputation.

Feeling unwell

• Upon waking on the morning of Wednesday 13 February he felt unwell. He attributed his unwellness to the unfounded complaint playing on his mind, and humidity in the corridor outside his cabin caused by a damp carpet (which he believed was damp due to a dripping air-conditioning vent).
• On telling his manager that he was unwell. He was given permission to not work the shift on 13 February and allowed to remain in his cabin, where he rested and was provided meals by staff.

The tour

• The Ghan was due to stop (for four hours) at Alice Springs on the morning of Thursday 14 February. On the late afternoon of 13 February, the applicant told another employee, who conducted tours during the transit stop that he would like to swap work with him that day and take passengers on the four-kilometre hike through Simpson’s Gap. The applicant said that it would be good to be out in the fresh air. The employee agreed.
• On the early morning of Thursday 14 February (about 7am) the applicant told the Train Manager that he would be doing the tour that day, swapping with the rostered employee.
• The Train Manager “did not demur”. However, shortly afterwards the applicant’s immediate manager refused the request, insisting that he carry out his normal duties and that he could get some fresh air when his duties were completed.

The main event

• The Ghan arrived at Alice Springs at about 9.10 am on Thursday 14 February. It was due to depart Alice Springs at about 12.45 pm.
• The applicant disembarked the train shortly after arrival. Staff were allowed to do so to get some fresh air but were required to remain in the vicinity of the terminal and required to re-board in advance of passengers returning and the train departing.
• It was said that the withdrawal of permission to take the tour, coupled with his latent anxiety about the passenger complaint and the damp carpet in the cabin corridor made the applicant feel stressed and anxious. Mid-morning, whilst off the train and in the terminal precinct, he advised a rostering coordinator that he felt bullied and harassed and wanted to speak urgently to the human resource department (HR). The message was relayed to the Human Resource Manager (based in Adelaide) who immediately called the applicant.
• The applicant told the HR Manager that he had been “bullied and victimised”, that he wished to return home immediately to Adelaide, that he did not intend to re-board the train and that he wanted the respondent to fly him to Adelaide at the employer’s expense. The applicant became agitated as they spoke.
• The HR Manager tried to gain the details of the allegations and:

“…[the applicant] considered that he did not need to provide more justification to the [HR Manager] as he believed he had told enough managers that morning of his unhappiness and unwellness. He hung up on [the HR Manager] when she again pressed him for details”.

• The applicant then off-loaded his belonging from the train. He then rang his partner and told her of his problems. He told her that he was annoyed that he had not been allowed to take a tour. His partner then told the applicant that their child was unwell with a chest cough and that she was concerned. This heightened the applicant’s anxiety and desire to return home.
• The applicant then both rang and text messaged the HR Manager in an escalating aggressive manner.
• But he was adamant that he was not returning to the train and that his employer should fly him home directly at its expense as it was the employer’s (in his words) “duty of care”.

To this point both the applicant and the respondent were both adamant that (a) the applicant wanted to be flown home and (b) the employer was not going to pay for his trip home. The applicant texting the HR Manager:

“You will be leaving me stranded then, I’m not getting victimised again. I hope you have explained to the managing directors the situation and that I have a newborn baby at home.”

• (In, no doubt aspiration), the HR Manager started to research bus and flight options to get the applicant back to Adelaide but could only find limited options, and referred this information to the applicant, insisting that he re-board the train.

By this time, the Ghan was scheduled for departure, with the applicant refusing to board the train. This could cause ongoing timetable delay for freight services that also share the train line. The trained departed about 10 minutes late – without the applicant on board.

All alone at the Alice

The applicant then contact another manager by phone, who was mostly unsympathetic to the applicant’s plight, saying that:

“…the company did fly staff home but only where there was an immediate family emergency. She said that [the applicant had been required to board the train home, was not required to work, would have been provided meals and rest and would have been safely home the following day”.

So to date we have a very upset employee, who strongly believes he has been hard done by, stranded and having no money.

The accommodation

The respondent acceded to book the accommodation, but HR Manager not being familiar with the area booked the applicant into accommodation, which to use the applicant’s words (via text message):

“200 aboriginals fighting downstairs with three doorman (sic) on at all times (reception couldn’t understand why I was sent here) not complaining as it’s Alice Springs but for future reference please don’t send any staff here that you actually like. Thank you for looking after me. Kind Regards…”

This seemingly calm demeanour deteriorated when he telephoned the HR Manager, angry and yelling:

“you will pay for what you have done, you better sleep with one eye open, you are terrible at your job. This is the end to you and the company, everyone at the cocaine tower will come down when they find out what has happened.”

The emergency contact

The HR Manager was shaken by the phone call by the tone and threats. She was concerned at the applicant’s mental state. She then contacted two local employees and the applicant’s brother who was the emergency contact on his personnel file.

The applicant took exception to the fact that the employer had arranged for other persons including his brother to check on him.

The applicant had also found alternate accommodation, using his own funds (which he claimed not to have had).

Management appraisal by the applicant

The applicant again decided to ring the senior manager and whilst this call started out calmly saying that he was very disappointed in what the company was doing to him as he “had a newborn daughter in hospital”. He then let loose, yelling variously that she “was a f**king sh*t manager”, “I’m going to take you down”, “I know what you did”, “you need to sleep with one eye open”, “everyone at the cocaine tower will come down when they find out what has happened”.

He then followed up this “appraisal with a text message:

“You worry about the guests giving you a bad name, what happens when a staff member knows all? I’m so disgusted in the company’s actions…this is for all in head office…I worked for the London Press for 10 years and I’m coming clean on the disgrace you have put the staff through! How about a slow media on your ways…What you have done!! I will only speak to [name] as anyone else I now don’t trust!”

The hospitalised daughter

This text message was the first time the applicant had mentioned his child had been taken to hospital. During the course of the afternoon the applicant’s partner had become sufficiently concerned at her daughter’s breathing and coughing that she had taken the baby to the Women’s and Children’s Hospital in Adelaide. Both mother and baby were sent home with some advice from hospital staff. However, during the evening the applicant’s partner again became concerned with the baby and returned to the hospital. She was admitted with the baby overnight for observation and discharged the following morning.

Upon learning that his partner and baby were in hospital that evening, the applicant became increasingly distressed. During the very early hours of the morning he sent three further text messages to the senior manager (with photos he had received from his partner at the hospital):

“My daughter is in the women and childrens and has been kept overnight…I’m holding you both responsible for me not being there!”
“This is [picture of baby]. She spent the night in hospital last night with complications…without her father by her side. I told you I was trying to get back to my newborn daughter but did you give a f**k…you dont deserve the position you are in… Standby!”

“This is [a picture of the baby’s] mother. She just spent the night beside her baby in the Adelaide Women and Childrens Hospital! Be a media nightmare if this went viral. I know what you did [name]! Will be waiting for a phone call from [name].”

Back in Adelaide (home base)

On 15 February Mr Ward boarded a lunchtime flight from Alice Springs to Adelaide (about the same time as if he had stayed on the train).

Upon arrival at Adelaide airport on 15 February [the applicant] was picked up by his partner. He noticed a text message from the HR Manager requesting that he contact her as soon as he lands.

The purpose of the text was to set up formal meeting to discuss what had occurred. The applicant responded:

“My daughter will be the first priority. Kind regards [applicant]”

He then drove to respondent’s terminal in Adelaide to return his train keys (keys are required to be returned at the end of each trip). On arriving at the terminal, he was met by management and this is where the DP had to determine who actually said what. On the one hand the applicant said he was sacked at that time, on the other hand the respondent claimed that he was not sacked at that time, with the DP finding that he was not sacked at that time.

After a bit of toing and froing by text messages, including the HR Manager advising:

“Hi [applicant] as per our conversation on the platform and the notice to meet letter you have been stood down pending our investigation. Your employment has not been terminated. Please give me a call so we can discuss. Kind regards…”

The applicant’s response:

“Now your just lying [HR Manager] …which proves why I told you I didn’t want a meeting without representation. You do this and you are no different to a thief or any other criminal. I have a 5 week old baby, you told me I was fired, not you might be fired!!”

Proof lies with the employer in cases of serious misconduct

The DP stating:

“Where an employee is dismissed for misconduct, as in this case, an evidentiary onus rests on an employer to establish that on the balance of probabilities the misconduct occurred.

“It is also well settled that where, as in this case, an employer dismisses for serious misconduct, the standard of proof requires “a proper level of satisfaction” that the conduct did in fact occur having regard to the seriousness of the allegations…This requires more than mere satisfaction that it is more likely than not that conduct occurred. Rather it requires a proper degree of satisfaction that the conduct did in fact occur…”

Did he do it, and if so, was it serious misconduct?

The respondent made it clear in the letter of termination:

“Your unwillingness to comply with the Company’s policies and procedures and your repeated breach of the nature of your breaches, amounts to wilful misconduct making it clear than an ongoing employment relationship has become untenable.”

 

The DP then analysed each issue in detail, in that the applicant.

Failed to board the train at Alice Springs on 14 February, as directed

“Those directions were lawfully made. At all relevant times [the applicant] was an employee of [the respondent]. He was subject to its direction. Company policy, as well as its duty of care, required the employer to account for the whereabouts of its employees whilst on the journey. The train was [the applicant’s place of work, and he was required to be at his workplace (as rostered) or (with permission) required to be in his cabin if he was unwell.

“The real issue in considering whether this was an act of misconduct is to assess whether Mr Ward’s decision not to do so was reasonable or not; put another way, whether the lawful direction to re-board was a reasonable direction.

“[The applicant’s] desire was not just to return to Adelaide but to do so immediately, by plane. The employer claimed in evidence that it has a policy to fly employees back to their home base only in the case of a serious life-threatening emergency associated with that employee or an immediate family member. That policy was not produced in evidence; in evidence it was indicated that the policy is the product of practice and convention, not documentation.

“I consider it poor practice that such a policy is not documented. Employees are entitled to know under what circumstances they may be able to be flown home at short notice. However, the policy itself is not unreasonable. The cost of flying employees from interstate or regional locations is not insignificant and doing so means that the employer would have to take steps to make sure that the employee does so safely. It is reasonable that the employer has a policy requiring an employee, even one unwell, to remain on the train except where there is a genuine emergency.

The DP finding:

“I find that the employer, from the first communication by [the HR Manager] on 14 February, consistently asked [the applicant] for details and information about why he did not want to re-board. [The applicant] asserted that he had been ‘bullied and harassed’ on the train. The employer was entitled to assess whether this was a reasonable claim, and to do so it made reasonable requests of him for information. That information was not forthcoming. The bullying and harassment [the applicant] was feeling was based on his unhappiness that the drunken passenger’s complaint against him was not being investigated, and that his immediate manager had overridden his desire to take the off-train tour.

“With respect to having a five-week newborn child in Adelaide, this (without more) was not a reason to fly Mr Ward back from Alice Springs. His concern for his partner and child and his regret that he was away for so long was entirely reasonable, as was his pre-departure request that he be given shorter journeys if possible. Yet [the applicant] took the shift that was offered, knowing that he would be away for six days from his partner and their newborn. That was clearly a painful decision but not one that the employer needed to overcome three quarters through the journey by flying him back home”.

“The employer’s direction that [the applicant] board the Ghan for its final leg to Adelaide was both lawful and reasonable. There were no reasonable grounds, objectively assessed, to warrant [the respondent] taking the alternate and rare course of flying an employee back to home base at company expense, as [the applicant] had demanded. Whilst he was genuinely upset at being away from his child and feeling unwell, his conduct was erratic. There were no reasonable grounds on which [the applicant] refused to re-board. Refusing the direction was a breach of duty. It was misconduct.

The circumstances of the misconduct (including the consequences of being left stranded in Alice Springs, the multiple requests made that he re-board, and the willingness of the employer to accommodate him should he re-board) rendered the misconduct serious misconduct”.

Allegedly failed to work a rostered shift, as required

“By taking himself off the train and failing to re-board Mr Ward was not able to undertake the duties of a Hospitality Attendant for which he was employed, either on the morning of 14 February or on the afternoon.

“In these circumstances I do not consider that Mr Ward failed to work a shift on 14 February, as directed. His failure to work a portion of that shift was for a limited period only, and the subsequent approval that he could have the remainder of the shift off active duty (and the next day) detracts from the seriousness of any breach.

“I do not consider this breach of duty to have been serious misconduct”.

Allegedly communicated to staff and managers in an offensive and threatening manner

“… the allegation of offensive and threatening language towards two managers… is made out.

“The abusive and threatening language used by [the applicant] was serious misconduct”.

Allegedly put at risk the name and brand of the company

The respondent alleged that the applicant put the company reputation at risk in two contexts: firstly, that the applicant was wearing the company uniform whilst stranded in Alice Springs and making threats over the phone whilst in a public space and whilst in uniform; and secondly, that the applicant threatened to put the company reputation at risk ‘by going to the press’.

The DP finding:

“…it is true that [the applicant] was wandering around Alice Springs stranded in company uniform, and it is possible that members of the public who saw him may have found that unusual especially if they had overheard a heated conversation. …There is no evidence that a member of the public was disarmed by a [respondent] employee being in uniform in the town…[or] overheard Mr Ward being abusive over the phone.

“The second limb of this allegation is made out. There is clear evidence before me, and I have found, that Mr Ward threatened his employer to take the issue to the media. He claimed that he had connections to the press and that they would be interested in the story. He threatened this to [HR Manager], and then to [a senior manager].
“…the threats were pointed and deliberate. [The applicant] first made the threat in order to place maximum pressure on the employer to relent and allow him to fly home at the employer’s expense. It led the employer to notify its public affairs officer of the potential for adverse publicity.

“[The applicant] was not acting or threatening to go to the press as some form of whistle-blower. He was seeking an outcome to which he was not entitled, an airfare home paid by the employer. Threats unreasonable made by an employee to seek to scandalise their employer in order to secure a preferred outcome, whether carried out or not, are a breach of duty. A passing aside made in frustration on one occasion may be less serious, but the threat by [the applicant] was repeated and it had purpose. It was misconduct. In combination with the other threats and abuse he made, it was an element of threatening and offensive behaviour that constituted serious misconduct”.

Conclusion on valid reason

The findings I have made of serious misconduct both individually and collectively constitute a valid reason for dismissal. I so conclude.

“In the context of considering valid reason, I have considered the circumstances advanced by [the applicant] in mitigation, being that he felt unwell whilst on the return journey, that he had a young baby who on the relevant day was unwell (and was later hospitalised), and that the overnight accommodation booked for him in Alice Springs made him feel unsafe”.

“I have concluded that each of these considerations, whilst relevant, do not carry sufficient weight to set aside the breaches of duty and the valid reason they collectively constitute”.

Onus of proof on the applicant

“The onus of proof in establishing that a dismissal was harsh, unjust or unreasonable rests on an applicant…”

“However, in cases such as this, the employer carries a considerable evidentiary burden of proof to establish that the misconduct which they allege did in fact occur. I have made findings of fact having regard to the evidentiary onus borne by the employer. Those findings of fact have been based on the requisite standard of proof”.

We got there…

“As the dismissal was not unfair, I am not required to consider issues of remedy”.

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5245.htm

I would love your feedback on this one…Did the Commissioner get it right?

To be clear, the applicant’s behaviour was collectively described as being “variously unprofessional, disrespectful aggressive, misleading, capable of bringing the company into disrepute, a breach of his employment contract and in one case, sexual harassment”. The Commissioner (seemingly) having difficulties dealing with some procedural faux pars by the respondent, whilst weighing up the evidence and how that evidence should be used (see the end of this article on the “onus of proof”).

Scenario

Mental health. Yes, another case where the applicant has a mental health issue. Let’s be frank, the applicant in this article made a complete goose of himself. His employer tried to assist (perhaps not perfectly) but it did try. The end result was dismissal for serious misconduct, with the applicant losing [although I could feel the Commissioner’s struggle in coming to this conclusion] …but so did the respondent – legal costs, time, putting up with the aberrant (abhorrent?) behaviours for some time and on it goes…

Here’s a scenario for you: What if, the applicant was on a path of self-destruction. We know by reading the decision that the applicant was hospitalised following a “mental breakdown” in September 2018. We do not know why. A break-up with his girlfriend was mentioned, so was intervention by his father who met with the applicant’s employer and said that his son “was in a bad way”, but little else. And then was the admission that the applicant was marijuana user since he was a teenager and had recently been prescribed Valium.

In short, the applicant went from seven years of an unblemished employment record – being promoted to a Business Development Manager (a role that he performed without incident for four years) with good money and a car allowance, to a return-to-work program (not compensation related) that saw his status diminished to part-time counter sales/cleaning. BUT with his employer retaining the rate of pay the applicant was paid as a manager.

Of course, this is pure supposition on my part, but I thought it might be a thought-provoker. Mental health issues are a HUGE problem in the workplace. They are a growing workers compensation issue, with mental health issues being the most expensive claims to manage.

In this matter, the employer had no choice (in my humble) but to dismiss the applicant – he was out of control. But I think it is sometimes fruitful to “walk a mile in another man’s shoes” – especially HR professionals who deal with these issues regularly. In practice, a business of any size is not capable of sustaining extreme employee behaviours. Such behaviour must be dealt with in a timely manner – yes, with some form of compassion – but never condoned.

The applicant’s behaviour became radically worse; to the extent that his employer could no longer accommodate him within its business because it was upsetting morale and the company’s customers – who were both making complaints. Perhaps, then he finally got what he “wanted”: dismissal? Then the “oh dear, what have I done” moment “what will my father/friends/etc think?” – hence the unfair dismissal application?

Introduction

The applicant’s incidents were collectively described as being “variously unprofessional, disrespectful aggressive, misleading, capable of bringing the company into disrepute, a breach of his employment contract and in one case, sexual harassment”.

His employer had to endure increasing absences by the applicant, with corresponding diminished work performance, abuse of the company credit card (eg filling his car with petrol every second day, despite the applicant receiving a car allowance [Ed: the Commissioner noting that there was no definition of what the car allowance covered – not in the applicant’s contract of employment and no policy].

Customer complaints were now being received; and he was becoming “insubordinate and sarcastic”.

The applicant was placed on a Performance Improvement Plan [Ed: this is a great tool to use], it was strongly hinted that he may have had lapses in memory caused by excessive alcohol usage.

Despite all this, the applicant continued to use the company credit card, and had telephoned his manager using inappropriate language. By this stage we are in 2019 and the applicant was taking more time off, but for the first time was not providing medical certificates, with the previous medical certificates providing no insights into his frequent absences.

Then there were the instances of the applicant’s company supplied laptop being “stolen” from his car, hot on the heels of the applicant’s entreaty for a cash advance due to his dire financial issues. The applicant failed to attend to a police station to make a report, despite his employer’s direction to do so.

Then the inevitable: the applicant was suspended pending a full investigation, then the “show cause” letter then failing to attend the meeting (but was permitted to state his case in writing) then the dismissal.

The Commissioner’s decision

Commissioner Hampton, in finding in favour of the respondent, and noting the mental health issue as a mitigating factor, was bound by the Fair Work Act. However, the Commissioner did note that in the respondent’s defence, the applicant did not advise the respondent of the nature of the health issue or its impact upon his conduct or capacity to perform work safely and appropriately. Indeed, the first time that the apparent hospitalisation had been confirmed in writing to the Respondent was during the hearing of this matter.

As put by the Commissioner, and is somewhat of a hint of social commentary:

“During proceedings, [the applicant] suggested he did not report his medical condition to his employer for fear of damage to his employment prospects. I accept that this is a concern genuinely held in the community and that as a society we do not always handle mental health challenges well. I would also accept that in some respects, [the respondent] could have handled the early signs of [the applicant’s] behavioural changes differently and provided some additional support. Further, I note that the [respondent’s] Health and Safety Manual identifies that the causes of what it describes as ‘stress’ can include personal problems and that if an employee’s behaviour indicates that they are ‘not fine’, some further intervention could be required”.

But went on to clarify:

“However, [the applicant] was under the care of a Medical Practitioner and [the respondent] was provided very little information about the cause of the medical condition or its prognosis. Given the early indications that [the applicant’s] circumstances were the product of his personal domestic situation, and the refusal to provide access to more detailed information about the medical condition, any criticism of the employer’s approach to this aspect must be muted and seen in that context. Further, given the extent of the absences and the relatively long periods without medical certificates being provided, [the respondent] gave [the applicant] considerable latitude and did not further escalate its conduct concerns until the Applicant was given a medical clearance to return to the workplace”.

The Commissioner ultimately finding that:

“In forming my ultimate assessment of this matter, I have also taken into account [the applicants] apparent medical condition more generally, and his personal circumstances at the time of the events on 28 February 2019, when most of the conduct occurred…these factors are a relevant consideration and do provide some important context for that conduct. Whilst a reasonable inference can be drawn that these did impact upon the behaviour, there are three limitations about the degree to which this can be relied upon as a significant mitigating factor. Firstly, there is no, or very limited, objective evidence about the actual medical condition and the impact of such upon the conduct. Secondly, on 28 February 2019, whilst part of an informal “rehabilitation” process, [the applicant] was declared fit to resume his employment. Thirdly, [the applicant] in his own evidence largely denies that the conduct I have found occurred; rather than accepting that such took place but was the product of, or influenced by, his condition”.

Other issues were:

  • The applicant also claimed that a stranger (“a bikie”) had come to home demanding guns (we do not know whether the applicant had guns, but the applicant described this to his manager as a reason for his behaviour).
  • The applicant telephoned his manager three times at about 7.00 pm. It is alleged that during the second telephone call, you said, ‘you’re dead, c**t’ before hanging up.
  • That the laptop was not stolen, but otherwise used as means by the applicant to alleviate his financial hardship. That is, it was alleged that the applicant stole the laptop. The applicant also failed to report the theft to police; the applicant’s reason that he did not go to the police is that he had no petrol in his car.
  • His company supplied mobile phone had a smashed screen and a shattered exterior. The applicant’s explanation whilst “smirking” was “I accidentally dropped it”. The Commissioner finding that this was not a deliberate act but was one of taking insufficient care of the phone and not being embarrassed about its condition.
  • The applicant in conversation with clients said words to the effect of “I’m short of money” and “the way to make lots of money is to sell drugs”. The customer told him “Don’t be stupid…”. The impact of this conduct was to damage the reputation and good standing of the Company with its customers.
  • The applicant approached another employee’s desk without reason and said to the (male) employee “When I’m bored, I masturbate”. The Commissioner deemed this to be sexual harassment.
  • Whilst standing in the show room and the applicant said words to the effect: “I’ve used up 500 hours of sick leave and I got away with it”. Then, the applicant, it is alleged that you were loudly making comments about the workplace rules. When advised by his manager “If you’ve got something to say, please come to my office and say it”, walked past an employee’s desk and said “f**king cockhead”.
  • When speaking to a customer at the sales counter, and a customer commented that the applicant was now in counter sales, the applicant replied “yeah, I’m back, but I’ve been demoted. The company hasn’t helped me out at all”.
  • When the applicant was cleaning in the showroom, he said words to the effect of, “This is bullsh*t”. His manager again said, “If you’ve got a problem, please come to my office and discuss it with me” to which he responded “No, I’m fine”.
  • The applicant then stopped cleaning and began walking around the showroom, outside the manager’s office, punching his fist, while singing very loudly and aggressively, with an intention to “disrupt, provoke and agitate other staff in the workplace”.
  • Continuing with the “cleaning” theme the applicant intentionally left pools of water on several areas of the showroom floor during the day. Despite a warning not to do this by his manager “because this presented a serious hazard in the workplace”, the applicant continued to leave water on the show room floor.
  • Then, the applicant was loudly making inappropriate comments. The applicant was told to stop making those comments. The applicant then tipped the bucket, which was full of water, onto the floor of the showroom.
  • The applicant then used a mop to intentionally push the counter chairs around the floor of the showroom, so that they made a loud noise, with an intention to disrupt other workers and customers.
  • The applicant then left the bucket and the rag that he was using to clean during the day on a carpeted area behind the sales counter. At that time, he had not finished cleaning up the water that he had spilt on the floor nor did he notify anyone that he had stopped cleaning and that there was still a workplace hazard in the area (i.e. the water on the floor).

Regarding the cleaning incidents, the Commissioner found:

“I find that these events occurred, albeit I am not satisfied that these were as serious as contended by [the respondent]. That is, I find that [the applicant] resented doing the cleaning work and as a protest was careless about spilling the water as he mopped, but he did make some endeavour to mop it up. This also extended to the manner in which he moved the chairs and reflects a less than appropriate and immature response to the circumstances”.

What is a (vehicle) burnout?

When departing work, the applicant did a burnout when leaving the carpark. The Commissioner helpfully defined a “burnout” as:

“On either case, the allegation that [the applicant] did a “burn out”, at least as commonly understood, is an exaggeration. At most, the acceleration and attitude of the vehicle when leaving the car park caused the wheel, where there was less weight, to spin and leave some rubber”.

The Credit Card

In relation to the credit card infractions, the Commissioner found:

“There is no evidence that the parameters for the use of the company credit card were ever confirmed in writing. There is also very limited evidence about any discussions about those parameters and no direct evidence at all about what may have been said by anyone on behalf of [the respondent] at the time of its supply. I do however accept that the commonly held understanding, indicated in evidence by [the respondent] that it was limited to reasonable business expenses, is a reasonable common-sense understanding. This is supported, at least to some degree by a discussion…that included [the applicant] being advised that filling his car every second day was not reasonable usage of the credit card”.

And:

“There is no reference to the use of the company credit card to pay for fuel in addition to the car allowance; however, this appears to be common ground, at least to the extent that the car was being used for work purposes.

“The absence of any direct evidence about the precise parameters for the use of the credit card make it difficult for [the respondent] to persuade the Commission that its use by [the applicant] at all times when not at work was deliberate misconduct. However, it is clear that such expenditure was not expressly authorised, and I do find that [the applicant] was recklessly indifferent to that issue. Further, on any version of the parameters applicable to the use of the company credit card, its use by [the applicant] to fuel his vehicle when he was not at work and not on any form of paid leave, was completely unjustified and improper”.

Failing to follow a lawful instruction

In placing the findings in the light of the requirements under the Fair Work Act, the Commissioner stated:

“The failure to follow a lawful instruction or comply with policy which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee’s employment. It is however, clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason. Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.

“…I have not been persuaded on the balance of probabilities that [the applicant] was involved in the theft of the laptop or that some of the other conduct was as serious as contended by the Respondent. However, I am satisfied that most of [the applicant’s] other conduct as alleged (including those associated with the failure to report the theft) did in fact occur, based on the documentary and witness evidence. Collectively, and for some allegations – singularly, these allegations constitute a valid reason for dismissal”.

The Commissioner commenting that:

“It is clear from the evidence that [the responded] already held a dim view of [the applicant], not unreasonably so given the history of events summarised above and was concerned about the Applicant’s return to the workplace given that history. It is also clear, that although [the applicant] had been medically cleared to return to work and sought the reduced part-time role, he retained the view that he had not been appropriately supported and resented his new circumstances”.

The Commissioner concluding:

“I have not been satisfied that some elements of the more serious allegations occurred in the manner contended by the Respondent, but I have found the existence of various acts of misconduct and a valid reason for dismissal. There are some competing considerations as to whether the dismissal was harsh in all of the circumstances. This includes the seriousness of some of the demonstrated conduct and the context in which it occurred, the impact of the dismissal, the absence of payment in lieu of notice, the relatively long period of service and some personal mitigating factors discussed earlier.

“As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether any procedural deficiencies and other considerations made any difference to the overall fairness of the outcome.

“It is very unfortunate that, for reasons outlined earlier, [the applicant] did not take the opportunity prior to his dismissal to provide a more comprehensive response to the allegations. However, despite some concerns about aspects of the decision-making process adopted by the Respondent, that process did provide the Applicant with a reasonable opportunity to provide an appropriate and fulsome response to the allegations. Regrettably, [the applicant] must bear the responsibility for his conduct and the absence of such a response. Further, the evidence now before the Commission leads me to the view that sufficient alleged conduct, including some serious misconduct, actually occurred to warrant the dismissal of [the applicant] in all of the circumstances. Some of the misconduct as found is also of such a nature that the absence of a prior warning about such matters is not significant.

“The aspect that has most troubled my final consideration is the fact that [the applicant] was not given notice or pay in lieu of notice, and was denied his accrued LSL. I would make it clear that I am not determining whether, as a matter of law, the conduct supported that action. Rather, I am considering as a matter of discretionary assessment, whether the dismissal with those consequences was harsh in all of the circumstances.

“When considered in context, and allowing for all of the relevant mitigating circumstances, the threatening phone call on 26 December 2018, the failure to report the theft of the laptop to the Police as directed and the misleading of [the respondent] about attempting to do so, the use of the company credit card during the periods of unpaid absence, and the more serious of the actions and comments on 28 February 2019, are strong countervailing factors leading to a finding, on balance, that the dismissal was not in all the circumstances, harsh.

“In conclusion, having considered and had regard to all of the matters raised by s.387 of the FW Act as set out in the decision above, I am, on balance, not persuaded that the dismissal was harsh, unjust or unreasonable”.

Addendum: Burden of Proof

This decision also examined the burden of proof. It is important to note that the applicant denied all allegations against him. But the Commissioner found his testimony to be unreliable, the allegations were found to be true. In quoting the Commissioner:

“I further find that none of these explanations was truthful and that Mr Brand did not make any attempt to report the matter to the Police”.

“In making this finding, and in my consideration of the disputed evidence and making my findings of fact on the allegations in this matter more generally, I have had regard to the approach of Dixon J (as he then was) in Briginshaw v Briginshaw as follows:

‘The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

“Further, I note that in Budd v Dampier Salt Ltd a Full Bench of the Australian Industrial Relations Commission said the following in relation to Briginshaw v Briginshaw:

“The second ground of appeal is that the Commissioner erred in the application of the principle in Briginshaw. So far as relevant, that case decided two things. The first is that where allegations are made in civil proceedings which, if proven, might found criminal liability, the standard of proof remains the civil standard. It follows that it is necessary that the court only be satisfied on the balance of probabilities…”