| [2022] FWC 2019 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Alexander Dominic Birkinshaw
v
Marlau Nominees Pty Ltd
(U2021/11322)
COMMISSIONER CAMBRIDGE |
SYDNEY, 3 AUGUST 2022 |
Unfair dismissal - out of work hours incident - valid reason for dismissal - procedural deficiencies - valid reason balanced against procedural error - dismissal not harsh, unjust or unreasonable - application dismissed.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 7 December 2021. The application was made by Alexander Dominic Birkinshaw (the applicant) and the respondent employer is Marlau Nominees Pty Ltd trading as Paramount Liquor (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 23 November 2021. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 9 June 2022.
[4] At the Hearing, the applicant represented himself, and he provided evidence as the only witness called in support of the unfair dismissal claim. The employer was represented by Mr Matthew Jeffrey, the employer’s General Manager – New South Wales. Mr Jeffrey called two witnesses who provided evidence on behalf of the employer, and he also provided evidence as the third witness for the employer. The applicant and Mr Jeffrey also made oral submissions during the Hearing which involved elaborations upon documentary material that had been filed by the respective Parties.
[5] The applicant first worked for the employer in March 2020 as a casual delivery driver. The applicant’s employment apparently ceased for a period of a little over 3 months, and in June 2020, he was re-engaged on a casual basis until November 2020, when his employment as a “casual” Warehouse Assistant was confirmed in a written contract. The work performed by the applicant included the delivery of wholesale liquor products to customers that primarily operated licenced premises such as hotels, bars, clubs, cafes, and restaurants.
[6] The employer operates what it asserts to be Australia’s largest family-owned on-premise liquor wholesaler business. The employer conducts its business operations from warehouses located in Victoria, New South Wales, and South Australia. The applicant worked at and from the employer’s primary office and distribution facility in New South Wales located in the Sydney suburb of Yennora. The employer has approximately 70 employees engaged in respect of its New South Wales operations, and about 250 employees nationwide.
[7] In January 2021, the applicant suffered a workplace injury to his back, and immediately before the termination of his employment, the hours of work and the duties that the applicant performed were the subject of a graduated return to work plan. The employment of the applicant was without recorded complaint prior to events which commenced on the evening of Friday, 12 November 2021.
[8] After the completion of work on Friday, 12 November 2021, the applicant went to the Star City Casino where he, inter alia, consumed alcohol, and during the course of the evening he became intoxicated. In the early hours of Saturday, 13 November 2021, the applicant went to Websters Bar in Newtown, and he was granted entry to Websters Bar at about 2:00 am. The events that occurred in a short period of time after the applicant’s entry to Websters Bar were subsequently reported in a text communication from the manager and licensee of Websters Bar to a Director of the employer. The report of the applicant’s alleged conduct at Websters Bar shortly after 2:00 am on 13 November 2021, led directly to the termination of his employment.
[9] At 6:45 am on 13 November 2021, the manager and licensee of Websters Bar sent the following text message to one of the Directors of the employer:
“Morning bro. How’s poppa Rowe?
Not sure who this guy is but this is from my report last night.
The bloke from paramount after asking for free drinks and me telling him no, he started throwing threats around of delaying invoices and orders. His name was Alexander and his D.O.B was 29.10.21. Absolute rat, started giving me lip when I said I wasn’t gonna give him free drinks from there. Took a breather cause the level of entitlement does my head in, he kicked up a stink at the bank then proceeded to yell at us over the road. This lad needs to lose his job.” 1
[10] At 8:51 am on 13 November 2021, the Director of the employer who had received the text report from the manager and licensee of Websters Bar forwarded that report onto the employer’s general manager for New South Wales, Mr Jeffrey. Mr Jeffrey provided a single word response of “Jesus”, and he then telephoned the licensee and manager of Websters Bar, Mr Daniel. During this telephone call, Mr Jeffrey confirmed to Mr Daniel that the employer did have an employee by the name of Alex and that he would deal with the matter further.
[11] Later that day, Saturday, 13 November 2021, Mr Jeffrey telephoned the employer’s State Operations Manager, Mr Benjamin Howard, and informed him of the report that had been made about the applicant’s alleged behaviour at Websters Bar shortly after 2:00 am that morning (the Websters Bar incident). Mr Jeffrey advised Mr Howard that he should speak to the applicant when he next attended for work, and to advise him of the allegations about his behaviour in respect to the Websters Bar incident, and to stand him down from his employment whilst further investigations were undertaken in relation to the allegations.
[12] The applicant was absent from work on Monday, 15 November 2021. However when he attended for work on the morning of Tuesday, 16 November 2021, he was immediately directed into a meeting with Mr Howard. In this meeting, Mr Howard told the applicant that a complaint had been received about his behaviour at Websters Bar in the early hours of Saturday morning and Mr Howard outlined the allegations that had been made about the applicant’s behaviour. The applicant confirmed that he had been at Websters Bar and the nearby Bank hotel during the early hours of Saturday morning. Further, the applicant told Mr Howard that he was intoxicated at the time, and he could not clearly recall exactly what had occurred. The applicant also confirmed that he did request free drinks from staff at Websters Bar, but he denied that he did so relying upon his employment with Paramount Liquor, and further, he stated that he did not threaten to withhold or delay liquor deliveries as retaliation for not receiving free drinks.
[13] At the conclusion of the meeting held on 16 November 2021, Mr Howard told the applicant that he was stood down from his employment whilst the employer undertook further investigations of the Websters Bar incident. At this point, Mr Howard suggested that the further investigations would involve the examination of CCTV footage from Websters Bar and statements from relevant staff. Mr Howard claimed that he also asked the applicant to prepare a statement of his version of events whilst he was on suspension from duties. However the applicant said that he was never asked to provide a statement and that he was confused about what was happening.
[14] After the applicant had been suspended from duty, he telephoned Websters Bar and asked to speak to the manager. The applicant said that during this telephone conversation he apologised to the manager of Websters Bar for his behaviour in the early hours of the previous Saturday morning, and his apology was accepted.
[15] In the days immediately following the applicant’s suspension from duty, Mr Jeffrey conducted further investigations into the allegations of the applicant’s behaviour in respect to the Websters Bar incident. In particular, Mr Jeffrey had further communications with the manager and licensee of Websters bar, Mr Daniel, who relevantly clarified that he would not provide Mr Jeffrey with either a copy of Websters Bar internal incident report or the CCTV footage of the incident. However, Mr Daniel did read out the contents of the internal incident report to Mr Jeffrey, and he provided him with a “still shot” from the CCTV footage of the applicant at the time of the incident. Further, Mr Daniel also outlined to Mr Jeffrey the contents of two witness statements that were being prepared by the staff members who interacted with the applicant during the incident.
[16] On Monday, 22 November 2021, Mr Jeffrey and Mr Howard discussed the information that had been gathered in relation to the applicant’s conduct in respect to the Websters Bar incident. Mr Jeffrey and Mr Howard considered the additional information that have been provided by Mr Daniel since the applicant had been suspended from duty, and the responses that the applicant had provided during the meeting held on 16 November 2021. Upon consideration of this material, Mr Jeffrey and Mr Howard arrived at the conclusion that the applicant’s behaviour during the Websters Bar incident, represented serious misconduct that was likely to damage the reputation and commercial interests of the employer, and therefore the applicant should be dismissed from his employment. Consequently, Mr Howard telephoned the applicant and advised him that he was required to attend a meeting regarding his employment on the following day.
[17] On Tuesday, 23 November 2021, the applicant attended a meeting with Mr Howard during which he was informed that the employer had formed the view that his conduct during the Websters Bar incident, had the potential to damage the company’s reputation and its relationship with relevant customers, and therefore the employer had decided to terminate his employment. The applicant responded to this advice by rejecting his dismissal, and asserting that the employer owed him money, and that he was being terminated because of his workers compensation claim. The applicant also requested that he be provided with a letter of dismissal, and an undated letter of dismissal was subsequently sent to the applicant.
[18] Since his dismissal, the applicant has continued to receive reduced payments in respect to his workers compensation claim, and apparently those payments were due to cease completely at around the time of the Hearing of his unfair dismissal claim. Further, the applicant asserted that his dismissal had heightened his state of anxiety such that he had been unable to pursue further employment prospects.
[19] The applicant made oral submissions during the Hearing held on 9 June 2022. The applicant also referred to an outline of submissions document which he had filed, and this material was introduced as evidence and marked as Exhibit 1. The submissions made by the applicant asserted that he had been unfairly dismissed.
[20] The applicant submitted that the employer had not acted with accepted process and procedure when dealing with a seemingly trivial event that occurred outside of work hours and at a pub when he was intoxicated. The submissions made by the applicant raised complaint that his dismissal had not involved any verbal warning, or written warning, but instead just instant dismissal.
[21] In respect to the Websters Bar incident, the applicant submitted that as there had previously been a work function held at that venue, he decided to ask for free drinks, was refused free drinks, and then he paid accordingly, then he played the poker machines, and then left the premises unescorted of his own free will. Further, the applicant stated that his behaviour was not aggressive, and that the matter was trivial when, as an intoxicated person, he asked for free drinks. The applicant also said that he probably said something about delaying deliveries in jest.
[22] The applicant also made submissions which asserted that he had been denied natural justice because he had not been provided with an opportunity to view the CCTV footage of the Websters Bar incident. The applicant submitted that this was particularly concerning because when he had been suspended from duty, he was told that the CCTV footage would be examined and this did not occur at any time before the employer, without any warning, instantly dismissed him. Further, the applicant raised complaint about the failure of the employer to produce any CCTV footage, despite the issuing of an Order from the Commission for production of the footage.
[23] The submissions made by the applicant also raised complaint about Occupational Health & Safety issues which he said were connected with the workplace injury that he had suffered. The applicant submitted that his dismissal was based upon the fact that he had made a workers compensation claim. The applicant submitted that the witness statements from staff at Websters Bar had been solicited on instruction from the employer in order to concoct a case to remove him from employment due to being on WorkCover.
[24] The applicant also submitted that his behaviour in respect to the Websters Bar incident was a trivial matter that did not warrant his dismissal. The applicant said that the real reason for his dismissal was an ongoing WorkCover issue. The applicant also made submissions which asserted that the text message of the initial complaint in respect to the Websters Bar incident was likely to have been fabricated because there was no verification of the time that it had allegedly been sent by the manager and licensee of Websters Bar, Mr Daniel.
[25] The applicant submitted that the employer had made an unprecedented HR decision to instantly dismiss him without due process of fair and natural justice treatment. Further, the applicant stated that he was seeking compensation for his unfair dismissal which was unjust and unwarranted. The applicant submitted that his instant dismissal following a non-work event established that he had been unfairly dismissed.
[26] The written submissions provided on behalf of the employer summarised the factual circumstances surrounding the Websters Bar incident and the employer’s subsequent investigations of that incident. The employer’s submissions asserted that the factual circumstances provided sound foundation for the employer’s conclusion that the applicant had attempted to use his position as an employee of Paramount Liquor to obtain free drinks, and in retaliation for refusal to provide free drinks, he threatened to withhold and/or delay the liquor delivery services ordinarily provided by the employer. The employer submitted that this conduct of the applicant actually damaged and/or had the potential to damage, the employer’s reputation and relationship with its customers, and provided justifiable basis for the termination of the applicant’s employment.
[27] The written submissions made by the employer were constructed with reference to the various factors contained in s. 387 of the Act, and which the Commission is required to take into account when considering whether a dismissal was unfair.
[28] The first relevant factor for consideration being whether there was a valid reason for the dismissal. The submissions made by the employer asserted that the evidence had established that the conduct of the applicant during the Websters Bar incident involved him using Paramount Liquor’s name in an attempt to get free drinks, and then threatening to withhold and/or delay orders/invoices in light of the refusal to provide the free drinks. The submissions of the employer asserted that this conduct very clearly had the potential to damage Paramount Liquor’s reputation and relationship with its customers, and it was conduct that amounted to a valid reason for the dismissal.
[29] The employer’s submissions also addressed the applicant’s challenge to his dismissal on the basis that the relevant conduct occurred “out of hours”. In this regard, the employer submitted that it was well established that “out of hours” conduct can be a valid reason for dismissal where the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employer and the employee, damage the employer’s interests, or is incompatible with the employee’s duties as an employee.
[30] The employer submitted that the applicant’s conduct in respect to the Websters Bar incident clearly had sufficient connection to his employment, caused damage to the relationship between the employer and the applicant, caused damage to the employer’s interests, had the real potential to negatively impact the employer’s reputation and relationship with Websters Bar and other customers, and was incompatible with the applicant’s duties as an employee. Therefore, according to the submissions made by the employer, the Commission should find that the applicant’s conduct in respect of the Websters Bar incident provided valid reason for the applicant’s dismissal.
[31] The further submissions made by the employer referred to other factors that are mentioned in s. 387 of the Act. The employer submitted that the applicant had been notified of the reasons for his dismissal during the meeting held on 23 November 2021, and this notification was confirmed in the letter of dismissal that was subsequently provided to the applicant. Further, the employer submitted that the applicant had been given an opportunity to respond to the allegations when they were outlined to him during the meeting held on 16 November 2021. The submissions of the employer also asserted that the applicant had been invited to prepare his own written statement detailing his version of events in relation to what occurred during the Websters Bar incident, and he chose not to provide any written statement or other response.
[32] The submissions made by the employer also asserted that the applicant was given an opportunity to have a support person present during the meetings held on 16 and 23 November 2021. The employer also submitted that any issue regarding warning about unsatisfactory performance was irrelevant because the applicant was not dismissed for reasons relating to unsatisfactory performance but instead misconduct.
[33] It was also submitted by the employer that the employer was not a large organisation and had only one human resources employee who worked across Paramount Liquor’s operations nationally. Consequently, according to the submissions made by the employer, factors relating to the size of the employer’s enterprise and the presence of human resource management expertise should be treated as neutral.
[34] The employer further submitted that there were no other factors which would support a conclusion that the dismissal was harsh, unjust or unreasonable. Further, the employer submitted that dismissal was a fair and proportionate response to the applicant’s misconduct because his misconduct was serious in nature, and it damaged, or at the very least, had the potential to damage, the employer’s reputation and relationship with its customers. The employer also submitted that the applicant’s reference to matters involving his workers compensation, discrimination and underpayment were irrelevant to any determination of his unfair dismissal application.
[35] In summary, the submissions made by the employer asserted that there was valid reason for the dismissal of the applicant and that upon a consideration of all of the relevant factors including those mentioned in s. 387 of the Act, the Commission should not find that the applicant’s dismissal was unfair. However, the employer also made alternative submissions in the event that the application was upheld, in which case it asserted that reinstatement would not be appropriate, and because of the misconduct of the applicant, no amount of compensation should be provided, or alternatively, any compensation should be significantly reduced. Notwithstanding these alternative submissions regarding compensation, the employer urged that the Commission dismiss the application.
[36] The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[37] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.
[38] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. Section 387 is in the following terms:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[39] In this instance, the applicant was dismissed because the employer came to the conclusion that his conduct in respect to the Websters Bar incident represented misconduct. The employer established misconduct because, although the conduct occurred outside of working hours, it was, (a) conduct that was connected with the employment, (b) it damaged the employment relationship, (c) it damaged or was likely to damage the employer’s reputation and commercial relationship with Websters Bar and other customers, and (d) it was incompatible with the applicant’s duties as an employee.
[40] Upon careful consideration of all of the evidence, particularly that provided by the witnesses during the Hearing, there is sound basis upon which the Commission has been amply satisfied that the applicant’s conduct during the Websters Bar incident was indeed misconduct as was found by the employer, and which has provided valid reason for his dismissal. In this instance it was regrettable to observe that the applicant has been unable to comprehend that what he did during the Websters Bar incident was not a trivial instance of drunken frivolity, but instead action that was likely to cause significant damage to the employer’s interests.
[41] Ordinarily, the activities of an employee which occur outside of working hours, i.e. “out of hours” conduct, could not be subject to any scrutiny from their employer. In simple terms, an employer does not have the right to involve themselves in the private life of their employees. However, if the “out of hours” conduct of an employee damages or is likely to damage the reputation and/or commercial interests of the employer, then the employer is entitled to seek to redress any actual or potential damage and to protect its interests.
[42] In this instance, the evidence has clearly established the existence of what might be described as the essential elements which enabled the employer to take action against the applicant in respect to his “out of hours” conduct during the Websters Bar incident. Firstly, the applicant provided the following evidence which clearly confirmed that his “out of hours” conduct was directly connected with his employment:
“So, you verified that you were identifying yourself as an employee of Paramount Liquor, who regularly delivered liquor there and he wanted a free drink? Can you confirm that? --- Yes, I asked them for a free drink, on the basis that I made frequent deliveries there.” 2
[43] The evidence has also confirmed that in response to the request for free drinks, the applicant made comments which involved a retaliatory threat to delay future liquor deliveries from the employer. Although the applicant asserted that “he probably said something about delaying deliveries in jest” the written statements that were made by the staff of Websters Bar who were involved in the interactions with the applicant, have provided a very different picture, which is encapsulated by the following extracts from the respective statements:
“It was at this point, he leant in close and said, ‘well, it’s your choice but I am going to delay your deliveries and invoices’, the tone wasn’t jovial by any means and came across to be snide, at some level aggressive and threatening.” 3
“He eventually gets out of his seat and slowly walks out the door shouting “don’t be surprised when your orders don’t turn up”.” 4
[44] Unfortunately neither of the two staff of Websters Bar who made written statements in respect to the Websters Bar incident were called to give evidence as witnesses at the Hearing. Consequently, the Commission has evaluated the evidence given in their written statements with the requisite reduction in weight because of the absence of any opportunity to directly test this material through questioning of these individuals appearing as witnesses. The adoption of the requisite reduction in weight that must be given to the untested evidence contained in the written statements of the staff of Websters Bar, has been balanced against the applicant’s assertion that his comments about delaying deliveries were made in jest. Relevantly, the consideration of this contested evidence has included regard for the uncontested evidence that at the time of these events the applicant was intoxicated.
[45] Following a careful, thorough, and balanced evaluation of all the evidence involving the Websters Bar incident, the Commission has been comfortably satisfied that the applicant made serious threats to delay future liquor deliveries from the employer to Websters Bar in retaliation for being refused free drinks. In fairness to the applicant, the evidence has also established that he did not engage in any physically threatening or abusive behaviour during the Websters Bar incident, and he left the premises unescorted, without overt protest or other resistance.
[46] However, the applicant’s threat of retaliatory action in response to being refused free drinks has provided confirmation of the existence of the second, third, and fourth primary elements relevant to “out of hours” conduct for which an employer may establish misconduct that justifies dismissal. The retaliatory threat was conduct that was clearly connected to the applicant’s employment, and it was action which would be likely to damage the reputation and/or commercial relationship between the employer and Websters Bar, and potentially damage the employer’s reputation and commercial relationships with other customers. Further, the retaliatory threat was conduct that represented misconduct that would damage the employment relationship and it was conduct that was incompatible with the applicant’s duty not to act in a manner that was inimical to the employer’s interests, albeit in “out of hours” circumstances.
[47] In summary therefore, the conduct of the applicant during the Websters Bar incident whereby he threatened to delay liquor deliveries in retaliation for being refused free drinks, represented “out of hours” misconduct which provided valid reason for his dismissal from employment.
[48] The employer provided initial verbal notification of the reason for the applicant's dismissal during the meeting held on 23 November 2021. Subsequently, the employer provided an undated termination of employment letter, which confirmed the earlier verbal advice that the reason for the applicant’s dismissal involved his misconduct during the Websters Bar incident.
[49] Regrettably, the termination of employment letter included a number of factual errors including the assertion that the applicant had been escorted from Websters Bar and the Bank Hotel, and that the employer had been provided with CCTV footage of the Websters Bar incident. Despite these factual errors in the termination of employment letter, the primary foundations upon which the applicant’s misconduct was established have subsequently been confirmed.
[50] The applicant was initially provided with an opportunity to respond to the allegations regarding the Websters Bar incident, during the meeting that was held on 16 November 2021. During that meeting, the applicant protested about the accuracy of the allegations that were conveyed to him by Mr Howard. Although it was a matter of contest, Mr Howard provided evidence that he had invited the applicant to prepare a statement of his version of events regarding the Websters Bar incident. The applicant said that he was not asked to prepare a statement.
[51] However, shortly after the meeting of 16 November 2021, the applicant made telephone contact with the manager of Websters Bar and provided an apology which he said was accepted. Although the applicant may have thought that his apology might have been sufficient to placate the concerns of the staff at Websters Bar, it was clear from his suspension from duties that the employer was considering the matter further. In such circumstances, it would have been prudent for the applicant to have prepared a statement of his version of events irrespective of whether Mr Howard had invited him to do so.
[52] Following the meeting on 16 November 2021, the further investigations that were undertaken by the employer confirmed without any doubt that it was the applicant who was involved in the Websters Bar incident, and that in broad terms, the gravamen of the incident involved the applicant making threats to delay liquor deliveries in retaliation for being refused free drinks. The confirmation of these fundamental aspects of the Websters Bar incident resulted in the employer forming the view that the applicant’s actions during the Websters Bar incident represented misconduct which justified the termination of his employment.
[53] At this point, the employer should have provided the applicant with advice that it had reached the position that it would terminate the applicant’s employment because of his misconduct during the Websters Bar incident, but, before implementing any dismissal it should have given the applicant an opportunity to plead his case and show cause why his employment should not be terminated. The failure to provide the applicant with this further step to enable him to show cause why his employment should not be terminated, has represented a clear procedural defect in respect to the process that was adopted by the employer. This procedural defect must be balanced against all of the other factors which are relevant to consideration of the applicant’s unfair dismissal claim.
[54] The employer did not unreasonably refuse to allow the applicant to have a support person present at the meetings held on 16 and 23 November 2021.
[55] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead, for misconduct.
[56] The employer is not a small size business operation and therefore the procedures that it has adopted have been subject to the requisite level of scrutiny.
[57] There was evidence that the employer did not have an extensive number of employee management specialists. The processes that were adopted by the employer broadly provided the applicant with procedural fairness, except for the procedural deficiency whereby there was no opportunity for the applicant to show cause as to why his employment should not be terminated.
[58] It would have been preferable if the employer had first provided the applicant with a document that particularised the allegations that were under consideration as providing potential basis for dismissal and confirmed the invitation to provide a written statement in response. The applicant was suspended from duty whilst the investigations into the Websters Bar incident were undertaken. The investigations confirmed the essential components of the applicant’s misconduct and upon which the employer would proceed to dismissal. Regrettably, the next procedural step whereby the applicant would be provided with an opportunity to show cause as to why his employment should not be terminated, was overlooked. Further, there were regrettable factual errors included in the termination of employment letter.
[59] The Commission has had regard for the evidence of the personal circumstances of the applicant, including the financial, health, and other impacts of the termination of employment. These matters have been evaluated and balanced against the various other factors under consideration.
[60] The applicant’s assertion that his dismissal was primarily for reason(s) associated with his workers compensation claim and his graduated return to work plan, was not supported by the evidence that was presented. The evidence established that the employer was experiencing significant staff shortages and it was greatly inconvenienced by the loss of the applicant as an employee. In circumstances of a labour shortage, it was simply inconceivable that the employer was motivated to dismiss the applicant for nefarious reasons associated with his workers compensation claim. Although the employer may have mismanaged aspects of the applicant’s workers compensation claim and his graduated return to work plan, the unambiguous motivation for the actions that were taken by the employer in response to the report of the Websters Bar incident, was to protect its business reputation and commercial interests.
[61] In this case the applicant was dismissed when the employer formed the view that he had engaged in “out of hours” misconduct that was inconsistent with any continuation of the employment relationship. The misconduct arose from findings that the employer made following its investigation into, and consideration of, an event which has been described as the Websters Bar incident. Upon careful analysis, the employer’s primary findings in respect to the applicant’s misconduct during the Websters Bar incident have been confirmed.
[62] The evidence has established that the various foundational elements that must be present in respect to “out of hours” conduct before an employer is entitled to treat that conduct as misconduct in the context of the employment relationship, were present in this instance. Consequently, the “out of hours” conduct of the applicant during the Websters Bar incident was misconduct that has provided valid reason for his dismissal.
[63] An examination of the other relevant factors has established that there were certain procedural errors or defects with the process that the employer adopted in respect to the final determination of the dismissal of the applicant, and the subsequent termination of employment letter. The identified procedural deficiencies have required careful evaluation and balance against the established valid reason for dismissal.
[64] In conclusion, the applicant was dismissed for valid reason involving his established misconduct during an “out of hours” incident that occurred shortly after 2 am on 13 November 2021 at Websters Bar. Although certain procedural deficiencies have been identified in respect to the employer’s final determination of dismissal, these procedural deficiencies, and other associated errors, have not, when balanced against the nature of the valid reason for dismissal, operated to render the dismissal of the applicant to be either harsh, or unjust, or unreasonable.
[65] Therefore, as the dismissal of the applicant was not harsh, or unjust, or unreasonable, it cannot be found to be unfair. The application for unfair dismissal is dismissed accordingly. An Order dismissing the application shall be issued in conjunction with this Decision.
COMMISSIONER
Appearances:
Mr A Birkinshaw appeared unrepresented.
Mr M Jeffrey, General Manager Director appeared for the employer
Hearing details:
2022.
Sydney:
June, 9.
Printed by authority of the Commonwealth Government Printer
<PR744353>
1 Exhibit 4 - Attachment “MJ-2”.
2 Transcript @ PN148.
3 Exhibit 4 - Attachment “MJ-3” page1.
4 Exhibit 4 - Attachment “MJ-3” page3.