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”.