Michael Nicholaou v OZCARE. (U2019/1296) [2019] FWC 3500. Lake DP. 5 July 2019.

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc3500.htm

 

The Applicant commenced working for the Respondent in early 2011, transitioning from what the Applicant recounts was a successful military career that included a posting in Iraq. During his time working for the Respondent the Applicant worked as a Support Worker and in more recent times, and until the date of his dismissal, as a Senior Support Worker. The Applicant worked throughout his employment at the Ozcare Homeless Hostel (the Hostel) in South Brisbane.

 

The Respondent is a large employer in the Health and Human Services industry, employing approximately 3000 employees. The Respondent operates the Hostel to provide temporary accommodation to disadvantaged men.

 

The reason relied upon by the Respondent in terminating the Applicant was an incident alleged to have occurred at the Hostel on the evening of 21 December 2018 where the Applicant used abusive language towards another employee and “vicariously” threatened the same employee through another employee.

 

The Applicant using (what was described as a “Game of Thrones defence” that everybody was out to get him.

 

Read on…

 

On 24 December 2018 the Applicant met with Ms Lisa Marriage, Acting Business Operations Manager, and Mr Robert Murray, Acting Coordinator, to discuss the allegations that had been made to them about the Applicant’s conduct on the evening of 21 December 2018.

 

On 3 January 2019, by way of letter, the Applicant was asked by the Respondent to respond to various matters relating to events which were alleged to have taken place on the evening of 21 December 2019 while the Applicant was working at the Hostel.

 

The 3 January 2019 letter stated (Typographical errors from original included):

 

“Michael, we are now giving you an opportunity to respond to the following:

On Friday 21.12.2018 I was notified that you had been involved in an argument with Colin Goldsmith, Support Worker and had allegedly threatened physical violence towards Colin on two occasions. The details of this are as follows:

 

  • You were directed by Rob Murray, Acting Coordinator to complete an intake with a new resident before you left duty for the evening. You later called Colin on the walkie talkie and told him to complete the second intake and allegedly your language was very aggressive.
  • Colin informed you that his co-worker Sean Wilson, Support Worker was still doing an intake and that he was looking after the rest of the Hostel, so did not have the capacity to do an intake. Colin also told you that Rob Murray had told him that that you were to complete the intake. At this point you then allegedly screamed down the walkie talkie in a very aggressive tone that “I am the fucking Senior Support Worker and I am f**king telling you to do the intake”.
  • At 6.50 pm you called Colin again on the walkie talkie and asked if he had rung the Co-ordinator to which he replied that he had. Again, you allegedly yelled down the walkie talkie using aggressive language and saying “that there was something f**king wrong with you and you have issues”.
  • At 8.30 pm Colin went to your office to see if you needed assistance with the labels or forms for the intake. Again, you were allegedly extremely aggressive and intimidating in both your body and verbal language. You allegedly said “stop trying to f**king suck up to me you a*sehole you are a f**king prick get the fuck out of my office you piece of s**t”. You continued to swear at Colin non-stop as he walked from your office.
  • At xxx you called Sean down to your office to help print labels for the intake. When Sean walked into the office you allegedly said to him “Don’t bring Colin down here or I’ll knock him out”. Sean felt that your behaviour was unprofessional and was unsettled by the interaction.
  • Colin has stated that he felt very threatened and upset with the barrage of foul mouthed, and aggressive abuse he received from you, his Senior Support Worker, which he said made him want to leave the premises for his own safety. Colin also stated that this was not the first time he had been treated like this by you.
  • When Rob and I met with you on Monday 24.12.2018 you were asked three times to provide a written statement of your account of the situation with Colin, but you refused to provide this. You did however state “that in your opinion what had occurred on Friday 21.12.2018 was between two male adults and you were surprised Colin had put anything in writing”. You also stated that you believe that “Colin instigated the altercation” and that you were the one “trying to de-escalate Colin”. You further added that you “did not threaten Colin in anyway on Friday evening and nor did you say anything to Sean regarding Colin”.
  • Michael, you have been spoken to numerous times over the course of your employment with Ozcare regarding your unsatisfactory behaviour in the workplace, particularly in relation to the way that you interact with colleagues and clients. Specifically, only recently on 20.11.2018 Rob Murray had to speak to you regarding an incident involving yourself and a resident, Ashley Cobbo, where instead of trying to de-escalate a volatile situation you continuously argued with him which resulted in the situation escalating so much that the resident became aggressive.”

 

The Applicant’s response by letter (Typographical errors from original included):

 

“I Michael Nicholaou, Acting Senior Support Worker, South Brisbane Men’s Hostel (Social Inclutions) Saint Vincent De Paul’s, have been a loyal upstanding Employee who has been appointed Full Time employment for over 7 years.

 

“Through my employment I have achieved great rewarding goals and experiences and feel I have help change troubled homeless men, women and children’s lives for the better. On a number of occasions I have received compliments either verbally, by phone or in writing which I have passed on to the Co-Ordinator at the time or Business Operations Manager.

 

“I have previously been employed by the Department of Defense as a Senior Soldier now a Vetran and Inactive Reservist and trained to the highest standards of conduct and service. I have completed on a number of occasions Policy and Procedures (Business Rules), Work Place Bullying and Professional Boundaries training and am well aware of the severity of these matters.

 

“The mentioned allegations from Colin Goldsmith (Support Worker) are both false and misleading. As our previous discussions in our last two brief meetings I never threatened Colin Goldsmith whatsoever I did not get out of my seat. I have always been professional towards him. I Stated to Colin “why are you here if you don’t want to work and help people.”

 

“I stated to Rob Murray on the phone that Colin did not appear to be busy but looked like he was on his phone conducting personal affairs and on Facebook on the night station Computer which was regular practice for Colin during work hours.

 

“After a brief discussion with Rob Murray I explained to Rob that I was busy doing welfare checks and resolving a number of issues on level 5 but would make time to complete a full comprehensive intake then complete my duties before completing my shift.

 

“I then contacted resident [name redacted] who was in the CourtYard after he presented to the hostel at 2030 hrs. I as a Senior Support Worker completed a comprehensive intake and allocated him a dorm area which was empty and available in Support Worker Colin Goldsmiths dorm area.

 

“2130hrs I completed the full induction process with all Ozcare paper work signed and dated, information inputed onto SHIP and QHIP and allocated the new resident a dorm area and explained the service in detail. Provided linen and a pillow and showed him to his dorm area.

 

“After completing of the intake I then completed my duties on Level 5 ie (Welfare Checks & Outcome Star Smart Goal Plans) and secured the office a proceeded to the nightstation for a handover where Sean was by himself, so I informed Sean that the intake was completed and by that time Colin appeared walking into the night station behind me and sat on the computer chair with his back towards me near the after 1730 hrs side door release button on the right. I mentioned to Colin I had completed the intake and I had allocated [the resident] to himself and Tetera for support. Colin stated that’s “ok”.

 

“Between 2145hrs – 2200hrs I left the property from the side door with no problems.

 

“My rostered hours are from 1300-2130 hrs Monday – Friday.

 

“As previously discussed Re Colin Goldsmiths inappropriate behaviour at South Brisbane Ozare Hostel.

 

“The mattes mentioned have occurred since his transfer from Cairns Hostel…”

 

The Applicant was dismissed on 18 January 2019 for misconduct. Upon termination the Applicant was paid four weeks’ salary in lieu of notice. This was not required to be paid. The dismissal was affected by way of letter dated 10 January 2019.

 

The Respondent submitted that the Applicant’s performance history is not entirely clean. Further, the Respondent submitted that the Applicant did engage in the conduct alleged and this misconduct was a valid reason for dismissal and that the process of terminating the Applicant’s employment was procedurally fair.

 

The Deputy President’s findings

 

  • Ultimately, the Applicant did not concede any of the allegations made against him. The Applicant maintained that the witnesses were lying and were concocting their stories against him. The Applicant maintained in his evidence that he did not swear in the exchanges between himself and Mr Goldsmith, and that generally he does not swear over the two-way radios, “unlike some other staff there”. The Applicant did however concede that “I was furious”.
  • The Applicant did not follow a lawful and reasonable direction from his supervisor with respect to completing an intake.
  • On balance, based on the evidence, that the Applicant abused Mr Goldsmith over the walkie-talkie in an aggressive and threatening manner.
  • That the Applicant when later entered the Applicant’s office say the words: “stop trying to f**king suck up to me you asshole, you are a f**king prick, get the f**k out of my office”.
  • That the Applicant said to another employee: “don’t bring Colin [Mr Goldsmith] down here or I’ll knock him out.” This confirms a pattern of aggressive and threatening behaviour from the Applicant over the course of the evening in question.
  • “I am satisfied that the dismissal was proportionate to the conduct. I am further satisfied that based on the lack of remorse and contrition demonstrated by the Applicant, this weighed against the dismissal being harsh or disproportionate to the conduct after the allegations were substantiated.

 

The DP concluding:

 

“After careful consideration of all the evidence, I have found that there was a valid reason for the dismissal and I am satisfied that the Applicant was afforded procedural fairness in the disciplinary and termination process.

 

“The Applicant did not present a coherent and alternate view of what happened on the evening of 21 December 2018.

 

“I found that the Respondent put it well when it summarised the Applicant’s positive evidence as a ‘Game of Thrones’ theory. In short, the Respondent submitted, and I am minded to agree, that the only alternate theory the Applicant provided in response to the weight of evidence against him was that there existed a conspiracy in relation to the termination of his employment. The Applicant submitted that a number of employees stood to benefit if the Applicant was dismissed and they together hatched and contrived a story and then corroborated their evidence, on oath, to see this plan though. I do not find this theory plausible on the consistency and credibility of the Respondent’s witnesses and their evidence that was put to me.

 

“My general view is that the Applicant did not present as a reliable witness. He was not direct in answering questions put to him and frequently confused what actually happened with his thoughts and reflections on the matter. This was not helpful for him in constructing the factual basis for his submissions. It is not to say that he did not maintain a genuine belief that the Respondent dismissed him for a non-valid reason. It is to say that this genuine belief was profoundly misguided.

 

“I dismiss the application for an unfair dismissal remedy”.

 

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
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  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

 

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.