[2019] FWCFB 2978
The attached document replaces the document previously issued with the above code on 7 May 2019.
The document code [2017] FWCFB 5783 has been amended to [2017] FWCFB 5843 in paragraph [20]
Inclusion of R Sweet of Counsel as appearing for the applicant.
Associate to Deputy President Sams
Dated 9 May 2019
| [2019] FWCFB 2978 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Monash University
v
Michael Meaney
(C2018/6030)
DEPUTY PRESIDENT SAMS |
MELBOURNE, 7 MAY 2019 |
Appeal against decision [[2018] FWC 5796] of Commissioner Cribb at Melbourne on 9 October 2018 in matter number U2017/13646 – failure to make critical findings – significant errors of fact – appealable errors identified – appeal upheld – decision quashed – application remitted for a re-hearing.
[1] Mr Michael Meaney was summarily dismissed from his employment as an Engineering Support Officer (ESO) with Monash University (‘Monash’ or ‘the University’) on 20 December 2017. He had commenced employment with Monash on or about 8 July 2014. Following his dismissal Mr Meaney applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The merit of that application was determined by Commissioner Cribb in a decision published on 9 October 2018 1 (Decision). The Commissioner determined that Mr Meaney’s dismissal was harsh,2 that reinstatement as a remedy was not appropriate3 and that it was appropriate to order compensation.4 A compensation order is yet to be made.5
[2] By its notice of appeal lodged on 29 October 2018 (amended on 20 December 2018), 6 Monash applied for permission to appeal and appeals against the Decision. In our decision published on 16 January 2019 we granted Monash permission to appeal.7 We now deal with the merits of the appeal.
Appeal grounds and contentions
[3] Monash’s amended notice of appeal raises 19 appeal grounds. Rather than reciting each appeal ground we have endeavoured to group the grounds of appeal by theme.
[4] The first theme is that the Commissioner erred because she adopted an approach that was fundamentally imbalanced. This theme engages, inter alia, with the second limb of error described in House v The King, 8 namely, that the result upon the facts is plainly unreasonable or manifestly unjust so as to infer that in some way there has been a failure to properly exercise the discretion9 reposed in the Commissioner.10 It encapsulates grounds 2, 3 and 6 of the amended notice of appeal. In essence, by these grounds, Monash contends that the Commissioner:
• failed in her assessment of harshness, to view the case from the employer’s perspective, as well as from the employee’s perspective, denying “a fair go all round”, contrary to a fundamental object of the statutory regime; 11
• failed in a case decided on fine balance, to take account for two important aspects of Mr Meaney’s conduct on 26 October 2017, namely:
• the deliberate and careless act of driving a car on a university campus in an unwise and inappropriate manner; and
• the comment that he might have to kill someone; and
• searched assiduously for matters purportedly supporting a conclusion of harshness, and erroneously applied them to her analysis as though the case was on a “tipping point”, despite the weighty findings in respect of valid reason (including serious misconduct) and Monash’s compliance with the statutory requirements for procedural fairness – but did not weigh these against Mr Meaney’s conduct viewed from the perspective of Monash and its duty to other staff of the university.
[5] Mr Meaney contended that the Commissioner’s approach was not imbalanced, as Monash had employed people as managers who had ruined his mental health and left him unable to function at the workplace. He contended that it was Monash’s duty to prevent this from occurring and that Monash had used the disciplinary outcome of dismissal when it knew that he was receiving treatment for stress and anxiety due to poor management.
[6] The second theme is that the Commissioner erred in giving disproportionate weight to Mr Meaney’s mental health issues. This theme encapsulates grounds 2(a), 4, 6 and 7 of the amended notice of appeal and by these grounds Monash contends:
• that the Commissioner erred:
• in finding that it was harsh for Monash to have recourse to the disciplinary outcome of dismissal given Mr Meaney’s purported “mental health issues”; and
• in giving any weight to that finding;
• there was limited evidence of Mr Meaney’s mental health issues and such evidence as there was did not engage with Mr Meaney’s conduct on 26 October 2017, which was the subject of the misconduct;
• an employee’s accountability for misconduct is not removed because an employee may have mental health issues particularly when the employee, as in the case of Mr Meaney, was presenting himself for work and holding himself out as fit for work;
• threatening physical harm against another employee is a valid reason for dismissal because such conduct is, fundamentally, inconsistent with that individual’s obligations as an employee. Where the threat to harm is serious and substantial, it amounts to serious misconduct. Mr Meaney’s conduct on 26 October 2017 fell squarely in this territory. Further, it was not alleged, or found, that Mr Meaney’s employment was terminated for reasons that included his purported mental health issues; and
• The Commissioner did not come to grips with the risk Mr Meaney posed to others in the workplace.
[7] Mr Meaney contended that Monash had acted inconsistently with its “ethics statement” and that senior management were aware of and understood the effect of mental health within the University. He contended that his mental health issues were relevant and the Commission was entitled to take it into account. He says that his mental health condition is supported by the report of Dr Das and that the cause of his mental health condition was in part the bullying and misconduct that he had experienced from the building and property management within the University.
[8] The third theme, encapsulated in ground 5 of the amended notice of appeal, contends that the Commissioner impermissibly departed from a Full Bench decision in Parmalat Food Products Pty Ltd v Wililo. 12 In essence, by this ground Monash contends that the decision in Parmalat required that once a finding of a valid reason for dismissal related to serious misconduct engaged in by Mr Meaney had been made, only the identification of significant mitigating factors would warrant a conclusion of harshness. Monash contends that although the Commissioner did not explicitly find that Mr Meaney engaged in serious misconduct, it may be inferred from the Commissioner’s remedy decision in which she observed that as “Mr Meaney was dismissed for serious misconduct, the amount of compensation that would otherwise be ordered will be reduced”13 and in her failure to make any adverse observation about Monash’s failure to provide any notice of payment in lieu of notice consistent with its decision to summarily dismiss.
[9] Mr Meaney contended that the decision in Parmalat is distinguishable on the facts and in any event, he contended that only he spoke loudly on rare occasions, it was not unlawful to do so and speaking loudly was reasonable when a person is being poorly treated.
[10] The fourth theme encapsulated by grounds 1, 2 (b) and (c) of the amended notice of appeal concerns the Commissioner’s finding that the decision by Monash to include conduct that occurred prior to 26 October 2017 in its misconduct investigation, without warning or explanation, contributed to the harshness of the decision to summarily dismiss Mr Meaney. Monash contends that:
• the Commissioner’s approach was divorced from reality and the reason for Monash’s change in approach was self-evident; that is, Mr Meaney’s conduct had reached the point that it had become so serious, involving as it did unsafe driving, aggressive abusive and threatening conduct and threats to kill someone, that any other approach was not open;
• no actual prejudice to Mr Meaney is identified by the Commissioner resulting from the change in the approach which the Commissioner criticises; and
• the finding of harshness was not open on the evidence.
[11] Mr Meaney contends that the events prior to 26 October 2017 were a manufactured scenario that was a long way short from the reality of the incidents. The incidents were no more than a case of “my word against theirs” argument. Similarly, he contended that Monash had grossly exaggerated the events of 26 October 2017 to justify its error in using dismissal as disciplinary action. He contended that Monash had acted in haste, without considering all of the factors contributing to their short sighted actions.
[12] The fifth theme concerns contentions that the Commissioner failed to take into account certain matters and failed to make particular findings. This theme is encapsulated in grounds 6(h), 13, 16 and 17 of the amended notice of appeal. Monash contends that in making her assessment whether the dismissal was harsh, unjust or unreasonable the Commissioner took into account certain aggressive statements made by Mr Meaney on 26 October 2017, but not:
• the manner in which Mr Meaney drove his car on 26 October 2017; or
• Mr Meaney’s statement that “I feel like I am being victimised, might have to kill someone”.
[13] Monash also contends that despite its submission, the Commissioner failed to make any factual finding as to whether Mr Meaney acted dishonestly during the investigation into his misconduct and thereafter to assess what weight should be given to the finding. It states that answers given dishonestly during an investigation not only separately found a valid reason for dismissal, but are relevant in the broader consideration of whether the dismissal was harsh, unjust or unreasonable.
[14] Mr Meaney contended that some of the allegations that were put to him were deeply disturbing and left him unable to comment. He contended that others were put to him in a way that he did not understand the question and he answered the question based on what he thought he was being asked. He contended that these were honest mistakes, made while he did not have the guidance of professional representation.
[15] The final theme concerns contentions that the Commissioner made a number of findings which involved significant errors of fact, for example, in finding that there was no evidence Mr Meaney had intimidated staff and made them fearful in the workplace, given the evidence before her. This theme is encapsulated by grounds 10, 11, 12, 12A, 14 and 15 of the amended notice of appeal.
[16] Mr Meaney made submissions which either disputed particular events, sought to contextualise them or to explain them.
[17] We consider these themes below.
The third theme (Ground 5)
[18] It is convenient that we begin with the third theme of appeal advanced by Monash.
[19] In Parmalat a Full Bench of Fair Work Australia said:
“We do not consider that the decision discloses a clear line of reasoning leading to the decision reached. The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. We do not believe that any of the circumstances involved in this matter amount to such factors.” 14
[20] Monash contended that the proposition posited in Parmalat above has been consistently followed by the Commission and should have been followed by the Commissioner in this case for the reasons we earlier noted. Monash cites a number of decisions of the Commission at footnote 14 of its written submissions 15 which are said to have followed Parmalat, including recently in Reliable Petroleum Pty Ltd v Fraser Murray16 (‘Reliable Petroleum’).
[21] Contrary to Monash’s contention, the decision in Reliable Petroleum did not follow Parmalat. It expressly criticised Parmalat, as is evident from the following passages:
“[24] There is one further matter upon which we wish to make some observations in relation to this appeal insofar as it concerns the Commissioner’s finding that Mr Murray’s dismissal was harsh. In oral argument, counsel for Reliable Petroleum made reference to, and relied on, paragraph [80] of the Decision, in which reference was made to the following part of the Full Bench’s decision in Parmalat Food Products Pty Ltd v Mr Kasian Wililo (Parmalat):
“[24]… The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[25] Justice Buchanan, with whom Chief Justice Alsop and Justice Siopis agreed, considered this issue in Harbour City Ferries:
“[100] Statements of principle often serve a useful and legitimate function. They provide a body of appellate guidance against which to test suggestions of error in future cases. They cannot substitute for, or alter, a statutory prescription but they are not jurisdictionally flawed unless they are given (or assume) the status of a ‘rule’ or are general pronouncements not related sufficiently to the facts of the particular case (see, by way of example of the principle in the exercise of federal appellate judicial discretion, Wong v R [2001] HCA 64; (2001) 207 CLR 584 per Gaudron, Gummow and Hayne JJ at [83]). It is arguable that the statement in Parmalat which I set out earlier, infringed this restriction. It appears to be a dogmatic pronouncement if it was intended as a general rule. It could not fetter the broad evaluative task assigned by the FW Act using the principles I have discussed of ‘a fair go all round’.”
[26] We agree with these observations by Justice Buchanan. The statute does not require the finding of “significant mitigating factors” to justify a conclusion that a procedurally fair dismissal for a valid reason was harsh. Whether any particular dismissal is “harsh” requires the decision-maker to consider all the relevant circumstances and make a broad evaluative judgment.” 17 [Endnotes omitted]
[22] As is also evident from the passages above, to the extent that Monash contends that Parmalat was followed by the Commission in Harbour City Ferries Pty Ltd v Toms 18 (‘Toms’), that approach was criticised by the Full Court of the Federal Court in Toms v Harbour City Ferries Pty Limited.19 The criticism is set out in the passage reproduced at [25] in Reliable Petroleum. In Harbour City Ferries, Buchannan J, with whom Alsop CJ and Siopis J agreed, ultimately concluded the decision in Toms was not attended by jurisdictional error because the Full Bench “did not ultimately resort to generalities drawn from an earlier case”.20
[23] Similarly, to the extent that Monash relies on the decision in DP World Sydney v Lambley, 21 as an example of the Commission applying Parmalat, that approach was also criticised by Justice Katzman in Lambley v DP World Sydney Limited22 as follows:
“28. First, Mr Lambley argued that the Full Bench imposed a test (in the second sentence of [26] of its reasons) that, absent significant mitigating circumstances, where a valid reason for dismissal is found to exist and procedural fairness has been afforded, dismissal will not be harsh, unjust, or unreasonable. Mr Lambley further submitted that it was wrong in principle to give the valid reason criterion greater emphasis or focus than the other matters or to first form the view that a valid reason is established and then considered whether the other matters in s 387 “displaced that view” (Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 (“Coal & Allied v Lawler”)).
29. Secondly, Mr Lambley argued that the Full Bench held that only where an employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate should a finding of unreasonableness or injustice be made. In other words, the Full Bench was imposing fetters on the jurisdiction of FWA not found in the Act itself.
30. Thirdly, Mr Lambley submitted that the Full Bench applied a purported principle (in [27] of its reasons) that the dismissal of an employee found guilty of fighting at the workplace can only be found to be harsh, unjust or unreasonable in “extenuating circumstances”.
31. As the third “purported principle” is said to be related to the first it is convenient to deal with them together.
32. I do not think it is fair to say that the Full Bench gave greater emphasis or focus to the valid reason criterion over any other factor in s 387 or first formed the view that a valid reason was established and then considered whether the other factors in s 387 “displaced that view”. But I do think there is merit in Mr Lambley’s other complaints.
33. The statement in the second sentence of [26] of the reasons of the Full Bench appears to be at odds with the proposition that a dismissal may be “harsh in its consequences for the personal and economic situation of the employee” (Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (“Byrne”)) and if it purports to be a proposition of law, it deflects attention from the terms of the statute itself. The Full Bench recognised in [25] that all the factors in s 387 must be given due weight but in the paragraphs that follow, it appears to discount as a matter of principle any weight being given to factors not expressly mentioned in the section, despite the presence of para (h).
34. DP World accepted that it was an overstatement on the part of the Full Bench to say (as it did in [27]) that the authorities establish that the dismissal of an employee found guilty of fighting at the workplace “can only be found” to be harsh, unjust or unreasonable in extenuating circumstances. It is certainly not an accurate reflection of what Moore J said in AWU–FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385, which is one of the two authorities to which the Full Bench referred. There, his Honour observed that generally the attitude of industrial tribunals tends to be that, absent extenuating circumstances, a dismissal for fighting will not be regarded as harsh, unjust or unreasonable. Even if this could be said to be the effect of the authorities, it was not a binding rule which could be applied to confine the discretion of FWA more narrowly than the Parliament intended (Norbis v Norbis [1986] HCA 17; (1985) 161 CLR 513 at 537 per Brennan J).
35. It is possible that in these passages the Full Bench was doing no more than indicating that in practice an employee found to have been fighting at the workplace will rarely be able to establish that his or her dismissal was harsh, unjust or unreasonable. But the language it used suggests that it was doing more than this.” 23
[24] Given the above, the Commissioner cannot be criticised and committed no error in not applying an approach which has been eschewed not only by the Full Bench in Reliable Petroleum, but by authoritative judgements of the Federal Court to which we have referred.
[25] It follows that the fifth ground of appeal fails.
The second theme (Grounds 2(a), 4, 6 and 7)
[26] As earlier noted this theme of the appeal engages with the Commissioner’s reliance on Mr Meaney’s mental health issues in assessing whether the dismissal was harsh, unjust or unreasonable. The Commissioner gives consideration to the issue under s.387(h) of the Act. After setting out the competing contentions of the parties at [114] – [125] of the Decision the Commissioner concluded that Mr Meaney’s mental health was a relevant matter in considering whether the dismissal was harsh, unjust or unreasonable. 24 Continuing, the Commissioner reasoned:
“...Dr Das, in November 2017, in the context of Mr Meaney’s WorkCover claim, provided a psychiatric assessment of Mr Meaney and diagnosed Mr Meaney with an adjustment disorder with anxiety. In his report, Dr Das observed that Mr Meaney had “a history of similar reactive state”, when Mr Meaney was prescribed with anti-depressants for eight months, which recommenced in January 2016. Dr Das noted that Mr Meaney had been prescribed his current daily anti-depressant medication for the past two years.
[126] It is apparent that, around July 2016, Mr Meany (sic) advised Ms Bird and Mr Max that he suffered from anxiety. The University (Agnes) made contact with Mr Meaney on 5 July 2016 who was not receptive to the call. It was established, though, that Mr Meaney was under the care of a doctor and was seeing a psychologist fortnightly. From the documentation that was provided by Mr Hocking (from Ms Bird) to the Commission, Mr Hocking appears to have believed, in August 2016, that Mr Meaney should provide a medical clearance. This was because Mr Hocking had concerns with continuing with a PIP when Mr Meaney “has disclosed to three HR staff that he suffers from a mental illness.” Subsequently, Mr Meaney was twice requested to provide a medical clearance and it seems from the documentation that Mr Meaney’s view was that it was not necessary.
[127] The notes provided to Mr Hocking recorded that Mr Meaney had requested a meeting with Mr Brundell as he felt that “no one is considerate of his mental health issues”. The notes also indicated that, during the meeting between Mr Meaney and Mr Brundell and Ms Bird, Ms Bird asked Mr Meaney to expand on his email where he said that he was under “mental stress and none of my managers are understanding my problem”. It was recorded that Mr Meaney would not expand on any mental health concerns. It is noted that the comments about Mr Meaney’s mental health issues were in the context of the PIP and concerns about Mr Meaney’s behaviour (and performance).
[128] It was Mr Hocking’s evidence that he had conversations with Mr Van Riet about Mr Meaney’s disclosure that he suffered from anxiety. However, Mr Hocking stated that he had no material before him (medical certificate or declaration) that told him that Mr Meaney was suffering any particular medical health condition. It was explained that there were references to anxiety but there was nothing of any substance even though, in conversations with Mr Van Riet, Mr Meaney had an opportunity to provide that documentation. As none was forthcoming from Mr Meaney, Mr Hocking indicated that that matter had gone nowhere. The three staff members who Mr Meaney had told in confidence that he suffered from a mental illness, were said to have not been at liberty to say anything further about it therefore, despite hints that there may have been a problem, there was nothing he could act on. Mr Hocking indicated that he did take this into account but did not think that it explained the incident on 26 October 2017.
[129] Mr Hocking explained that the University utilised a performance improvement programme, prior to formal disciplinary proceedings, in order to deal in a positive manner with unsatisfactory work performance or behaviour. It was stated that Mr Meaney had been on the radar concerning workplace behaviours and the University believed that the appropriate actions were being taken by the University short of formal disciplinary action. Further, it was stated that the usual University’s program regarding intervention when it believes that there may be mental health issues was activated by Mr Van Riet but the attempted early intervention in terms of support didn’t get anywhere because there had been no formal declaration by Mr Meaney.
[130] Mr Hocking explained that, as he did not have a medical certificate in front of him saying that Mr Meaney was suffering a mental illness that was treatable (nothing formal), he could not make a diagnosis as he was not a clinical psychologist. It was stated that he could only rely on what had been provided to him and he was not provided with anything formal.
[131] The evidence shows that Monash University was advised by Mr Meaney that he had mental health issues (anxiety) from around July 2016. Three months later, Monash requested a medical clearance from Mr Meaney that he was fit to work in relation to concerns about his behaviour. This was not forthcoming from Mr Meaney. In August of the following year (2017), Mr Meaney requested a meeting with Mr Brundell as he felt that no one was being considerate of his mental health issues.
[132] Mr Meaney represented himself at the hearing. As an unrepresented Applicant, the only medical evidence that Mr Meaney provided was the report from Dr Das. There is, therefore, no medical evidence before the Commission which provides a direct causal link between Mr Meaney’s behaviour at work and his mental health issues. However, there is sufficient material, including Dr Das’ report, to provide the basis for the view that Mr Meaney’s mental health is a relevant factor under section 397(h) of the Act.
. . .
[139] Having taken account of all of the factors set out in section 387 of the Act, I find, on fine balance, that the dismissal was harsh. On the one hand, there was a valid reason for Mr Meaney’s dismissal due to his angry, aggressive and to some extent, abusive, exchange with Mr Blackey and previous incidents of unprofessional, inappropriate, aggressive behaviour towards Ms Haddad and belittling and demeaning comments about his manager in an email. In addition, the disciplinary process which was followed by the University in dismissing Mr Meaney, was fair.
[140] On the other hand, the switch by the University, from utilising a PIP process to using the disciplinary process to address Mr Meaney’s workplace behaviours, was without warning to Mr Meaney. The incidents that made up the first allegation took place between July 2017 and 5 October 2017. It was contended by the University that they constituted “a course of aggressive, abusive and threatening conduct in the workplace that has intimidated staff and made them fearful in the workplace”. Prior to the letter of allegations of serious misconduct on 7 November 2017, the University’s difficulties with Mr Meaney’s conduct were being dealt with through a PIP. These incidents do not appear to have been addressed through any process at the time they occurred but were subsequently brought to Mr Meaney’s attention, not through the PIP process, but as allegations of serious misconduct. Mr Meaney does not seem to have been provided with an explanation as to why the University, after not having addressed these issues, departed from the PIP process and embarked on a disciplinary process involving allegations of serious misconduct in order to deal with them.
[142] Secondly, it is apparent that the University was told in around July 2016 by Mr Meaney that he had anxiety. In August 2016, it seems that the University was so concerned about Mr Meaney’s behaviour that they contacted him on 5 August 2016 to get information about his mental health. Twice in September 2016, the University asked Mr Meaney to provide a medical clearance that he was fit for work. The following year, after the ESO meeting incident on 25 August 2017, Mr Meaney told Mr Brundell and Ms Bird, during a meeting on 1 September 2017, that he was under mental stress. It was Mr Foulds’ evidence that around July 2016, Mr Brundell had advised him that HR had told him that Mr Meaney was not well but did not provide any detail.
[143] It would therefore seem to be harsh for the University to utilise the disciplinary outcome of dismissal in circumstances where it had been aware from July 2016 that Mr Meaney had mental health issues. Dr Das’ report appears to corroborate what Mr Meaney said to the University when he disclosed that he had mental health issues in July 2016, August 2016 and August/September 2017. It is acknowledged that Mr Meaney declined, in September 2016, to provide, in essence, formal documentation to support what he had been telling the University about his mental health. However, when the issue of Mr Meaney’s mental health was raised again by Mr Meaney with the University in August/September 2017, Mr Meaney does not appear to have been asked to provide a doctor’s report or other formal advice regarding his mental health. This is despite Mr Meaney’s behaviour in 2017 being seemingly consistent with his 2016 conduct.
[144] It is not being said that Mr Meaney was a model employee as Mr Meaney’s conduct has been found to have been a valid reason for his dismissal. However, the University was made aware by Mr Meaney that he had mental health issues starting in July 2016. Therefore, in balancing the reason for the dismissal, together with the University’s knowledge that Mr Meaney had mental health issues, which is supported by Dr Das’ report, this contributes to a finding that, on fine balance, the dismissal was harsh in all of the circumstances.” 25 [Endnotes omitted]
[27] The evidence of Mr Meaney’s mental health issues before the Commissioner was in the form of a medical report of Dr Das dated 13 November 2017 prepared in connection with a workers’ compensation claim made by Mr Meaney. 26 Dr Das was not called to give evidence and although the report was prepared after the incident giving rise to Mr Meaney’s conduct on 26 October 2017, it does not engage with the incident, nor does it purport to explain Mr Meaney’s conduct during the incident by reference to the mental health issues identified and which are described by Dr Das as a diagnosis of “adjustment disorder with anxiety”.27
[28] The Commissioner appears to deal with the issue of Mr Meaney’s mental health in two ways in assessing that the issue contributed to the dismissal being harsh in all the circumstances. First, the Commissioner criticised the University for converting that which was a performance improvement process into a disciplinary process by relying upon incidents that took place between July 2017 and 5 October 2017. The Commissioner observed that the incidents did not appear to have been addressed through any process at the time that they occurred, and were not brought to Mr Meaney’s attention through the performance improvement process, but rather through the allegations of serious misconduct set out in Monash’s letter to Mr Meaney of 7 November 2017. 28 Monash is criticised for not explaining to Mr Meaney as to why it embarked upon the disciplinary process involving allegations of serious misconduct in order to deal with those incidents.29
[29] The Commissioner concluded that the fact of Monash embarking upon this course, without explanation, contributed to the harshness of the dismissal, because it had not previously activated the disciplinary process, Mr Meaney had not been given any formal warnings about his behaviour and had not been advised by the University that it was going to commence to deal with his behavioural issues utilising the disciplinary process, rather than the performance improvement process. 30
[30] The second way in which the Commissioner deals with the mental health issues is on the basis of the knowledge by Monash of the issue since July 2016. This knowledge is said to have contributed to the harshness of the decision to utilise the disciplinary outcome of dismissal in relation to the conduct alleged. 31
[31] We consider that the Commissioner’s reasoning is self-evidently flawed, not because the issue of Mr Meaney’s mental health was not or could not be relevant, but because it seems clear enough that the Commissioner concluded, without proper foundation, that the identified mental health issues contributed to explaining Mr Meaney’s conduct and therefore the behaviour should have been dealt with by methods other than discipline and ultimately dismissal. There is nothing in the medical report which suggests a causal link between the behaviour about which Monash was concerned and Mr Meaney’s diagnosed mental health condition of adjustment disorder with anxiety.
[32] Furthermore, it is not clear to us why, absent evidence of a causal link between the mental health condition of Mr Meaney and his conduct, the University’s knowledge of Mr Meaney’s mental health issues was, in the circumstances of the seriousness of the conduct, relevant in the assessment as to harshness. Indeed, the Commissioner acknowledged that there was “no medical evidence before the Commission which provides a direct causal link between Mr Meaney’s behaviour at work and his mental health issues.” 32 The Commissioner went on to observe that “there is sufficient material including Dr Das’ report, to provide a basis for the view that Mr Meaney’s mental health is a relevant factor under 397(h) of the Act”.33
[33] The only matters to which the Commissioner subsequently refers as shining light on relevance, concern the use of a disciplinary rather than a performance improvement process to deal with the conduct and the prior knowledge of the University of Mr Meaney’s mental health issues. We have already expressed our view as to the latter. Turning to the former, Monash’s reason for using a disciplinary process to address the conduct was self-evident. Mr Meaney’s conduct appears to have reached the point that it had become so serious, involving as it did unsafe driving, aggressive, abusive and threatening conduct and expressing thoughts to kill someone, that it was no longer a performance improvement issue. It is to be remembered that the conduct, on the Commissioner’s finding included Mr Meaney:
• deliberately driving his car at his workplace (a university campus driveway) in a manner and speed that caused it to slide sideways with the rear wheels spinning; 34
• behaving in a manner that was angry and aggressive and to some degree abusive towards a security officer who challenged his driving; 35
• telling another staff member that “I feel like I am being victimised, might have to kill someone”; 36 and
that this conduct had occurred against the backdrop of previous conduct which, as the Commissioner found, included Mr Meaney speaking to, or about his manager in derogatory and abusive terms, stating that he was “not a manager’s arsehole”, and referring to him as “a filthy little grub”, “a disgusting creep” and “this unqualified jerk” who was “not fit to manage human staff”, as well as speaking aggressively and abusively to another manager. 37
[34] That Monash did not explain to Mr Meaney why it was dealing with his conduct through a disciplinary rather than a performance improvement process does not in our view render a dismissal for reasons of serious misconduct, which reasons were found to be valid, and which was otherwise procedurally fair, harsh. No actual prejudice to Mr Meaney is identified by the Commissioner resulting from the change in the approach which the Commissioner criticises.
[35] Moreover, even if contrary to the view that we have expressed, these matters contributed to “harshness”, it is not at all clear how the matters attributed such significant weight so as to outweigh the existence of a valid reason relating to Mr Meaney’s conduct, the notification of the reason for dismissal and the opportunity to respond to the reason and there being no refusal of a support person with the remaining mandatory considerations appearing to be neutral. 38
[36] For these reasons we uphold these grounds of appeal.
The fourth theme (Grounds 1, 2(b) and (c))
[37] The fourth theme concerns the criticism by the Commissioner of the decision of Monash to include conduct that occurred prior to the incident of 26 October 2017 in its misconduct investigation, rather than dealing with it as part of an improvement performance process, without explanation or warning.
[38] We have largely dealt with this issue in our analysis of the second theme above and it is unnecessary for us to add to that which we have already set out. For those reasons these grounds of appeal are upheld.
The fifth theme (Grounds 6 (h), 13, 16 and 17)
[39] The essence of Monash’s complaint here is that in making the assessment whether Mr Meaney’s dismissal was harsh, unjust or unreasonable, the Commissioner took into account certain aggressive statements made by Mr Meaney, but made no reference to (and presumably therefore did not take into account), the manner in which Mr Meaney drove his car on 26 October 2017 or Mr Meaney’s statement that “I feel like I am being victimised, might have to kill someone”.
[40] We apprehend that these criticisms stem from the following passage of the Decision:
“[139] Having taken account of all of the factors set out in section 387 of the Act, I find, on fine balance, that the dismissal was harsh. On the one hand, there was a valid reason for Mr Meaney’s dismissal due to his angry, aggressive and to some extent, abusive, exchange with Mr Blackey and previous incidents of unprofessional, inappropriate, aggressive behaviour towards Ms Haddad and belittling and demeaning comments about his manager in an email. In addition, the disciplinary process which was followed by the University in dismissing Mr Meaney, was fair.” 39
[41] Reasons for a decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. 40 The reasons must be read as a whole and considered fairly, so that what might be characterised as infelicitous expression does not too readily give rise to the inference of error.41 Reasons for a decision are thus not meant to be scrutinised upon over-zealous review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.42 These propositions relate to judicial review of administrative decisions, but there is no reason why a different approach should be taken in an appeal of a decision of a Commission member under the Act.43
[42] True it is that there is no express reference to the matters about which Monash complains at [139] of the Decision, but that paragraph is not to be read in isolation. It should be read as part of the Decision as a whole. In dealing with the question whether there was a valid reason the Commissioner made an express finding about Mr Meaney’s driving on 26 October 2017. At [106] the Commissioner found “that Mr Meaney drove his car in an unwise and inappropriate manner up the driveway”.
[43] As to the second matter, the Commissioner concluded at [84] of the Decision that Mr Meaney said to Mr John Wlodarcyzk, Building Works Coordinator, “you know what, I feel like I’m being victimised, I might have to kill someone”. At [102] the Commissioner said:
“[102] With regard to the final allegation (Allegation 4) it is a fact that Mr Meaney said the words as alleged to Mr Wlodarcyzk and it was a highly inappropriate to make. The comment by Mr Meaney needs to be seen in context. It was allegedly serious enough to be considered by the University as serious misconduct. However, it was not viewed as serious enough to be reported immediately. Mr Wlodarcyzk did not report the incident to management until the next morning.”
[44] When the Decision is read as a whole and fairly, we consider that the Commissioner made findings in respect of each of the matters about which Monash complains and took them into account in her assessment. It follows that the grounds of appeal dealing with these matters must fail.
[45] Also under cover of this theme, Monash contends that it made a submission that the Commissioner should have made a finding that Mr Meaney acted dishonestly during the investigation and failed to do so.
[46] It is clear to us on a review of the material before the Commissioner that such a submission was put by Monash. 44 The submission was directed to a material consideration: that is, whether there was an additional valid reason to the misconduct reason for which Mr Meaney was dismissed. We are unable to discern from the decision that the Commissioner engaged with the issue. Given that the submission was directed to a material consideration, we conclude that the Commissioner failed to make a finding, one way or the other, as to whether Mr Meaney gave dishonest answers during the internal investigation. In so doing the Commissioner erred and this appeal ground is upheld.
The sixth theme (Grounds 10, 11, 12, 12 A, 14 and 15)
[47] Under the umbrella of this theme, Monash alleges that the Commissioner made a number of significant and erroneous findings of fact. The impugned findings are:
• at [98] of the Decision that Mr Meaney’s driving of his car on 26 October 2017 was not dangerous or erratic;
• at [100] of the Decision that Mr Meaney’s conduct towards the security officer, Mr Blackey, was not "abusive and threatening";
• at [103] of the Decision that Mr Meaney’s misconduct on 27 July 2017, 25 August 2017, 3 October 2017 and 5 October 2017 did not constitute "a course of aggressive, abusive and threatening conduct" and that his conduct “does not rise to the level of “aggressive, abusive and threatening”;
• at [104] of the Decision that there was "no evidence" to support the allegation that Mr Meaney "intimidated staff and made them fearful in the workplace".
[48] At [98] of the Decision the Commissioner dealt with the dangerous driving allegation, concluding as follows:
“[98] With respect to Allegation 2, the Commission has found that Mr Meaney drove his car with it sliding sideways with the rear wheels spinning in a bit of a skid with the tyres probably making a screeching sound. However, I have not been persuaded that Mr Meaney drove his car dangerously or erratically. I accept Mr Meaney’s evidence that it was a controlled slide and that he had control of the car at all times as he was going up the driveway. This is not to say that Mr Meaney should not have driven his car in that manner on a university campus. It was an unwise and stupid thing for Mr Meaney to have done.” [Emphasis in original]
[49] The conclusion that Mr Meaney’s driving was not dangerous or erratic is, in our view, unsustainable and erroneous given the following matters.
[50] The Commissioner found that Mr Meaney drove his car with it “sliding sideways with rear wheels spinning in a bit of a skid”. This occurred when Mr Meaney drove his car “up the driveway next to building 40”. 45 Mr Meaney had conceded that “he had gotten a bit carried away with the accelerator pedal as he changed down to first gear” and that he “had deliberately driven his car this way”.46 There were skid marks visible following the driving.47
[51] Describing an act as dangerous is to describe that act as able or likely to cause harm or injury. To describe an act as erratic is to describe that act as something that is not even, or regular in pattern or movement; it is unpredictable.
[52] Given the circumstances described by the Commissioner and the concessions made by Mr Meaney, it seems to us that both adjectives are apt to describe the manner of his driving. It was much more than just unwise and stupid. The Commissioner erred in concluding otherwise.
[53] The Commissioner also concluded that she was not persuaded that Mr Meaney’s conduct directed to the security officer, Mr Blackey was behaviour that was undertaken in an abusive or threatening manner. 48
[54] The evidentiary context in which the finding was made is as follows. Mr Blackey in his capacity as a security officer at the University challenged Mr Meaney about the manner of his driving. Mr Meaney said in response “well, you may as well get in your car and fuck off”. 49 After Mr Blackey told Mr Meaney that he needed to report Mr Meaney about his driving, Mr Meaney reacted “in an angry and upset way”.50 Thereafter, Mr Meaney “stood directly in front of Mr Blackey”51 and stood “quite close to Mr Blackey and that he spoke aggressively and loudly to Mr Blackey”.52 The Commissioner accepted that Mr Blackey “was wary that there may be some physicality because of the expression on Mr Meaney’s face and his anger”.53 The Commissioner concluded that “Mr Meaney’s conduct was that of an angry upset person who reacted aggressively, confrontationally and disproportionately to being challenged about his driving”54 and that “Mr Meaney was, to some degree, abusive, in his comments to Mr Blackey”.55
[55] It is difficult to reconcile the Commissioner’s findings that Mr Meaney’s conduct was not “abusive”, given the finding that Mr Meaney had said to Mr Blackey that “you may as well get in your car and fuck off”. It is also difficult to reconcile the Commissioner’s finding that the conduct was not “threatening”, given the abuse, coupled with Mr Meaney standing directly in front of Mr Blackey and speaking to him aggressively and loudly. That Mr Blackey said that he did not fear for his physical safety, a concession which is unsurprising from a security guard, does not lessen the nature of the conduct. It does not change the character of the conduct, which was patently threatening, to something which it was not. We consider that the Commissioner erred in her finding in this respect.
[56] At [103] of the Decision the Commissioner made the following findings:
“[103] Monash University alleged that Allegations 1.1, 1.4, 1.5 and 1.6 amounted to “a course of aggressive, abusive and threatening conduct in the workplace that has intimidated staff and made them fearful in the workplace”. On the basis of the findings set out above, I have not been persuaded that these incidents constituted “a course of aggressive, abusive and threatening conduct”. Mr Meaney’s behaviour can fairly be described as aggressive (allegation 1.4) and inappropriate and unprofessional in relation to allegations 1.1 and 1.6. With respect to Allegation 1.5, Mr Meaney’s conduct in relation to the email was demeaning and insulting and unprofessional in his comments about Mr Barratt. However, it is my view that Mr Meaney’s conduct does not rise to the level of “aggressive, abusive and threatening”.”
[57] We take the submission of Monash as to a course of conduct to be to the effect that the allegations it had made demonstrated a pattern of behaviour by Mr Meaney which was aggressive, abusive and threatening in the workplace. That is, the conduct the subject of the various allegations was conduct involving a continuous and repetitive course of conduct and that the last occasion on which it had occurred, namely 26 October 2017, was not isolated.
[58] As to what was the conduct said to form the course of conduct, the Commissioner concluded that Mr Meaney had, on 26 July 2017, told his manager Mr Barrett, that he was "not even a manager's asshole". 56 The Commissioner concluded that during a meeting on 25 August 2017, Mr Meaney had acted inappropriately and unprofessionally towards Ms Romaine Haddad, Manager Building Quality & Performance, when he spoke loudly, angrily and aggressively towards her.57 The Commissioner concluded that Mr Meaney had, on 23 October 2017, in response to a reasonable request by his supervisor, Mr Barrett, described him as a ''filthy little grub", "the disgusting little creep" and "this unqualified jerk".58 The Commissioner concluded that on 5 October 2017, Mr Meaney made an entry into an electronic log, accessible to others, that his manager was "not fit to manage human staff”.59
[59] The conduct as found by the Commissioner and described above is variously to be described as aggressive, abusive or threatening. It was not conduct of an isolated nature. It was repeated over a period from July 2017 and culminated in the final incident on 26 October 2017. The conduct was much more than unprofessional conduct. On any view, it was unacceptable. It was abusive, sometimes aggressive and sometimes threatening. It is apt to describe the conduct collectively as a course of aggressive, abusive and threatening conduct in the workplace.
[60] The Commissioner erred in concluding to the contrary.
[61] At [104] of the Decision the Commissioner rejected Monash’s contention that Mr Meaney’s conduct intimidated staff and made them fearful in the workplace, concluding there was no evidence before the Commission to support the contention. This conclusion is, in our view, contrary to the evidence for the following reasons.
[62] First, the Commissioner found that Mr Meaney had engaged in loud, angry and aggressive conduct towards Ms Haddad. 60
[63] Secondly, there was evidence that Ms Haddad was apprehensive for her safety around Mr Meaney and generally felt vulnerable when she was alone with him. 61 Ms Haddad’s evidence was that she was afraid that she might encounter Mr Meaney alone in the car park and as a result Mr Peter Foulds, Building Services Manager, would drive Ms Haddad to her car after work.62
[64] Thirdly, Mr Wlodarcyzk's gave unchallenged evidence that following Mr Meaney’s statement that "I feel like I am being victimised, might have to kill someone", he "felt very anxious and uncomfortable ... and wanted to remove myself from the situation", and later that night that he "was unnerved” and felt “uneasy in his presence”. 63
[65] Fourthly, Mr Foulds gave unchallenged evidence that following a conversation in his office with Mr Meaney, Mr Foulds "approached Andrew Foster and instructed him that, as the next most senior person in the office at the time, if he were to enter my office I would need his [Mr Foster's] assistance as I am reluctant to meet with him alone". 64
[66] Fifthly, Mr Leigh Hocking, workplace relations consultant, gave evidence that Ms Haddad advised that Mr Meaney "has a tendency to stand over people in a threatening and intimidating manner". 65
[67] Finally, there is evidence that Mr Meaney’s behaviour was consistently described by staff as aggressive. 66
[68] Taken together, there was ample evidence from which it could be concluded that Mr Meaney’s conduct intimidated staff and made them fearful in the workplace. The Commissioner’s conclusion that there was no evidence before the Commission which supports this contention was clearly wrong.
[69] The erroneous factual findings that the Commissioner made are significant in the context of a case where the Commissioner decided “on fine balance” that the dismissal was harsh. Consequently, it cannot be said that the erroneous factual findings did not affect the outcome. In the circumstances, we uphold these grounds of appeal.
The first theme (Grounds 2, 3 and 6)
[70] Returning then to the first theme, we consider it unnecessary to deal with these grounds of appeal given the errors we have identified earlier. As we had noted at the outset, this theme engages with the second limb of error described in House v The King, and since we have identified appealable error sufficient for us to uphold the appeal and to quash the decision, it is unnecessary to consider whether the Decision upon the facts is plainly unreasonable or manifestly unjust so to infer that in some way there has been a failure by the Commissioner to properly exercise her discretion.
[71] For the reasons stated we order:
1. the appeal is upheld;
2. the Decision in [2018] FWC 5796 is quashed; and
3. the application for an unfair dismissal remedy made by Mr Meaney in U2017/13646 is remitted to Commissioner McKinnon for rehearing.
DEPUTY PRESIDENT
Appearances:
J Bourke of Counsel, and R Sweet of Counsel, for the Appellant.
No appearance for the Respondent.
Hearing details:
2019.
Melbourne:
March 18.
Submissions:
Appellant, 15 February 2019
Respondent, 1 March 2019
Printed by authority of the Commonwealth Government Printer
<PR707869>
2 Ibid at [145]
3 Ibid at [151]
4 Ibid at [152]
5 Ibid at [167]-[168]
6 Permission to amend its notice of appeal was granted on 18 March 2019; See Transcript (18 March 2019) PN11
8 (1936) 55 CLR 499
9 Ibid at [505]
10 See Transcript (10 December 2018) PN12-PN15
11 A reference to s.381(2) of the Act and to s.3 of the Act, which provides as an object “to provide a balanced framework for cooperative and productive workplace relations…”
13 [2018] FWC 5796 at [163]
14 [2011] FWAFB 1166 at [24]
15 Monash University’s Outline of Submissions on Appeal 15 February 2019
17 Ibid at [24]-[26]
18 [2014] FWCFB 6249 at [16]; see fn 14 of Monash University’s Outline of Submissions on Appeal 15 February 2019
19 [2015] FCAFC 35
20 Ibid at [101]
21 [2012] FWAFB 4810 at [21] and [28]
22 [2013] FCA 4
23 Ibid at [28]-[35]
24 [2018] FWC 5796 at [125]
25 Ibid at [125]-[132], [139]-[144]
26 Appeal Book pp 281-287
27 Appeal Book at pp286
28 [2018] FWC 5796 at [140]
29 Ibid
30 Ibid at [141]
31 Ibid at [142]–[144]
32 Ibid at [132]
33 Ibid
34 Ibid at [98] and [106]
35 Ibid at [99] and [106]
36 Ibid at [79], [84] and [102]
37 Ibid at [25], [26], [35]-[36], [37] and [45]
38 Ibid at [103]-[113]
39 Ibid at [139]
40 See for example, Minister for Immigration and Ethnic Affairs v Wu and Ors (1996) 185 CLR 259 at [271]–[272]
41 Ibid at [291]
42 Ibid at [272]
43 See for example, Baxter Healthcare Pty Ltd v Portelli [2017] FWCFB 3891 at [65] and Construction, Forestry, Maritime, Mining and Energy Union; The Australian Workers’ Union v LS Precast Pty Ltd [2019] FWCFB 1431 at [103]–[104]; The Australian Workers’ Union v Alcoa of Australia Limited [2019] FWCFB 2427 at [30]-[31]
44 Appeal Book p 406 at [19] of the Respondent’s Closing Submissions
45 [2018] FWC 5796 at [46]
46 Ibid
47 Ibid at [69]
48 Ibid at [100]
49 Ibid at [71]
50 Ibid at [73]
51 Ibid at [75]
52 Ibid
53 Ibid at [76]
54 Ibid at [100]
55 Ibid at [101]
56 Ibid at [17]
57 Ibid at [25]
58 Ibid at [35]–[36]
59 Ibid at [45]
60 Ibid at [25]
61 Appeal Book at 597-598
62 Ibid; See also at 246
63 Appeal Book at 520-521, 595
64 Appeal Book at 502, 250
65 Appeal Book at 597-598
66 Appeal Book at 504, 508, 509, 571