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…”