1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Cole
v
PQ Australia Pty Ltd T/A PQ Australia
(U2015/10896)
COMMISSIONER ROE MELBOURNE, 29 FEBRUARY 2016
Termination of employment – alleged unfair dismissal Application for relief from unfair
dismissal.
[1] Mr Cole was employed full time as a packer on night shift by PQ Australia from
August 2011 until his dismissal on 23 July 2015. On 26 July 2015 Mr Cole was told that his
dismissal could be converted to a resignation if he agreed to certain terms. On 27 July 2015
Mr Cole submitted a resignation. Mr Cole was paid notice and other entitlements. This
included accumulated personal leave which under the relevant collective agreement is payable
upon resignation but not upon termination for misconduct. The application for unfair
dismissal remedy was made on 11 August 2015.
[2] Mr Cole was stood down with pay from 14 June 2015 until 3 July 2015 and then
without pay from 3 July 2015 until the date of dismissal. In standing down Mr Cole PQ
Australia advised that in their view Mr Cole “did not seem to be coping very well at work and
we are concerned for your welfare.”
[3] PQ Australia did not allege that they had any concerns about the frequency or nature
of Mr Cole’s absences from work on personal leave. Mr Cole had not had any lengthy or
frequent absences. In fact he had accumulated more than 27 days of unused personal leave in
his approximately 4 years of service. Mr Cole was absent for one day on personal leave on 14
June 2015. Mr Cole attended his doctor and eventually provided a medical certificate for this
single day absence. He also provided a pathology request form signed by his doctor which
included a diagnosis of his condition.
[4] There was no meeting between Mr Cole and PQ Australia management during the
period of stand down between 14 June 2015 and 24 June 2015. At the meeting on 24 June
2015 Mr Cole was advised that he could not return to work until he attended a medical
examination by a doctor nominated by PQ Australia. Mr Cole was advised that this was not
disciplinary action and that PQ Australia had not concluded that he had engaged in any wrong
doing but that PQ Australia was concerned “you are having problems from time to time
maintaining an effective working relationship with some of your work colleagues.” A
medical appointment was arranged by PQ Australia with Dr Baynes for 2 July 2015.
[2016] FWC 1166
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 1166
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[5] Mr Cole confirms that he was told about the appointment on 30 June 2015. Mr Cole
sought to have the requirement to attend the appointment reconsidered. PQ Australia
reaffirmed the requirement to attend the appointment. Mr Bonicia of the AWU wrote to Mr
Rice on 2 July that: “the concern arises that the evidence Daniel has indicates his being stood
down, less than 5 minutes after he called in sick, may establish that the stand down and in
turn, the assessment are part of adverse action against Daniel because he called in sick.
Daniel’s behaviour subsequent to the stand down can be attributed to the adverse action he
experienced in the first instance.”1 Mr Rice for PQ Australia responded reaffirming the
requirement for the assessment. Mr Bonicia responded “If adverse action has in fact occurred
then having Daniel do the assessment may be construed as a continuation of the adverse
action. Therefore, as we discussed earlier a deferral of the assessment is pertinent at this
time”. This exchange was only a few hours before the appointment. Mr Cole says that he did
not retrieve a telephone message confirming this request had been denied until after he should
have left to attend the appointment.
[6] When Mr Cole failed to attend the medical appointment PQ Australia advised him that
he was stood down without pay.
[7] Mr Cole lodged a general protections claim with the Fair Work Commission. PQ
Australia refused to participate in a conference about the matter and as a result the application
did not proceed. The Fair Work Commission notified the parties of this on 21 July 2015.
[8] On 15 July 2015 Mr Cole was given notice by Mr Doran, Vice President Human
Resources for the company based in the US, that failure to respond to the letter and confirm
that he was willing to attend a medical assessment by a practitioner selected by the company
could lead to his employment being terminated. By email dated 22 July 2015 (US time) Mr
Doran advised Mr Cole that he was dismissed from his employment effective from 23 July
2015. The reasons given were the failure to comply with the direction to attend an
independent medical examination and failure to comply with the direction to only
communicate with Mr Doran regarding this issue. This direction was also contained in the 15
July 2015 letter.
[9] I am satisfied that Mr Cole was instructed to attend a medical examination and refused
to attend an independent medical assessment.
[10] On 24 July 2015 Mr Doran emailed an AWU organiser Mr Bonicia advising that if Mr
Cole provided a resignation with no restrictions or caveats the company would pay
accumulated leave (including sick leave) to which Mr Cole would have been entitled upon
resignation and three weeks pay in lieu of notice. On 25 July 2015 Mr Bonicia advised Mr
Cole of the offer. Mr Cole continued to protest against what he said was unfair treatment and
that he should be able to return to work without a medical examination. He also effectively
told Mr Doran that Mr Bonicia was no longer representing him. On 26 July 2015 Mr Doran
wrote to Mr Cole stating that:
“The letter of dismissal you received from on on 7/23 is now in full effect as you chose
none of the other options presented to you in good faith. …Daniel, no additional
emails or further communication will change this outcome as you are now officially no
longer an employee of PQ Australia.
1 Exhibit R8, Attachment 42.
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For the purposes of helping you move forward to look for new employment
opportunities, I will offer one last opportunity for you to consider voluntarily resigning
effective July 24th by sending me a simple two line email confirming exactly that, with
no caveats, exceptions or other conditions. If I receive that email as described by no
later than Wednesday 29th July Australian end of business, I will then accept your
resignation which will be what is then reflected in your final employment file
designation for leaving PQ, replacing the termination designation. Based on accepting
your resignation the company will then issue your unused 207.21 hours of personal
leave which is equal to $9,208.21 gross and subject to taxes. Additionally the company
will issue you 3 weeks of pay recognising a prior email you sent where you stated that
if you resigned you intended to give 3 weeks notice.”
[11] In response on 26 July 2015 Mr Cole reiterated his view that his treatment was unfair
and that he was the victim of bullying and “looks like I see you in court”. Following a
response from Mr Doran which reiterated the earlier position of the company Mr Cole sent a
resignation on 27 July 2015. It said “I refer to your email. I regretfully resigned my position at
PQ Australia effective 24 July 2015.” Mr Doran responded on 27 July 2015 (28 July
Australian time) “I understand and accept your resignation” and advised that the personal
leave and notice payments would now be made. Mr Cole then sent a number of further emails
over the next 24 hours which made it clear that he was still contesting the end of his
employment. On 29 July 2015 Mr Doran responded that Mr Cole should not persist with his
stated intention to return to the work site and that “there is no further information or
additional attempts to email which will change the outcome and end of employment with
PQA.”
Was Mr Cole dismissed at the initiative of the employer?
[12] There are of course situations where an employee is dismissed and then subsequently
there is an agreement to re-characterise the event as a resignation. This is often accompanied
by an agreement not to pursue an unfair dismissal application.
[13] In the circumstances of this case I have no hesitation in concluding that Mr Cole was
dismissed by the employer effective from 23 July 2015. There is clear written evidence of this
fact. This is reaffirmed in subsequent correspondence. At no point was there mutual
agreement to withdraw the termination of employment. Mr Doran on behalf of PQ Australia
offered to re-characterise the termination as a resignation on his employment file if a
resignation effective from 24 July 2015 was received by 29 July 2015. The resignation was
received by that date. However, within 24 hours of acceptance Mr Cole made it clear that he
was continuing to dispute the termination of his employment.
[14] I am not satisfied that the events which followed the termination of employment alter
the fact of the termination in this case.
[15] PQ Australia argues that the conduct and behaviour of Mr Cole following the decision
to stand him down was such as to irreparably damage PQ Australia’s trust and confidence in
him and to bring his employment relationship to an end. They argue that Mr Cole was not
forced to resign because of the conduct of the employer but because Mr Cole was not
prepared to attend the independent medical assessment. There are of course some situations
where an employment contract ends due to frustration. Abandonment of employment is the
most common example. However, if employer concerns about conduct and performance were
[2016] FWC 1166
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generally taken to mean that an employee was not dismissed this would render unfair
dismissal protection ineffective. I am not satisfied in the circumstances of this case the
employment ended on 23 July 2105 due to the actions of Mr Cole.
[16] Mr Cole argued that the actions of the employer left him with no choice but to resign.
PQ Australia argue that Mr Cole had a number of choices. Mr Cole could have, prior to the 23
July letter of termination, agreed to attend the medical examination. It is clear that this option
was not open to Mr Cole after the 23 July 2015 letter of termination. After 23 July 2015 Mr
Cole had no choice which could undo the ending of the employment relationship. In this sense
the resignation was something Mr Cole was forced to do because of the conduct of the
employer in dismissing Mr Cole and then stating that if he wanted to receive certain
entitlements and if he wanted the employment file to specify “resignation” then he must
resign. Mr Bonicia wrote to PQ Australia emphasising this point on 28 July 2015.2 However,
it is not necessary to determine this matter given that I am satisfied that the dismissal in fact
occurred prior to the resignation. If I am wrong about this matter I would still be satisfied that
Mr Cole was dismissed within the meaning of Section 386(1)(b) of the Fair Work Act 2009. I
would be satisfied that Mr Cole “resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her employer”.
The matters which are not disputed.
[17] Having concluded that Mr Cole was dismissed at the initiative of the employer for
misconduct, Mr Cole is protected from unfair dismissal in that in is not in dispute that:
PQ Australia is a national system employer.
PQ Australia is not a small business.
Mr Cole was employed for a continuous period of more than six months.
Mr Cole was not dismissed for reasons of redundancy.
The application was made within time.
[18] I am required to consider the factors in Section 387 of the Fair Work Act 2009.
[19] It is not disputed and I am satisfied that:
Mr Cole was notified of the reason for the dismissal. If the reason was a valid
reason then Section 387(b) has been satisfied.
Mr Cole was given an opportunity to respond to the allegations which concerned
his conduct. There was considerable written communication between the employer
and Mr Cole about the requirement to attend a medical examination prior to any
return to work. Mr Cole was advised that failure to confirm that he would attend
the examination would lead to the termination of his employment. He had the
opportunity to respond to that advice and he did respond to that advice. He was
also directed not to communicate about this issue with others in management. Mr
Cole had the opportunity to respond to this. It is not in contention that he did not
comply with this instruction. Section 387(c) has been satisfied.
Mr Cole was not refused a support person. The AWU represented Mr Cole during
most of the period between his stand down and his termination. Section 387(d) has
been satisfied.
2 Exhibit R8, Attachment 69.
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The issues raised in the show cause letter and the dismissal letter relate to conduct
not performance and so Section 387(e) is not relevant.
PQ Australia is a medium sized employer with human resource management
expertise. Sections 387(f) are (g) are not relevant in this case.
[20] The issues in this case are about whether or not there was a valid reason for
termination (Section 387(a)) and other factors (Section 387(h)). For the reasons summarised
above the other factors are neutral considerations.
The issues to be determined
[21] The central issues to be determined in respect to valid reason are:
Was it reasonable for PQ to require Mr Cole to attend a medical examination by a
practitioner selected by the company to assess his fitness for work prior to allowing
him to return to work? It is not necessary to determine if the decisions to stand Mr
Cole down with pay and then without pay were reasonable. It is the failure to obey
the instruction to attend the medical appointment that was the principal reason for
the termination of employment.
Did the failure of Mr Cole to agree to attend the medical examination constitute a
valid reason for dismissal?
Did the failure of Mr Cole to comply with the direction to communicate only with
Mr Doran about the return to work issues constitute a valid reason for dismissal?
[22] The issues in respect to other factors are:
Is the issue of the recording of conversations by Mr Cole relevant under other
matters to the question of whether or not the dismissal was harsh, unjust or
unreasonable? Is it also relevant to remedy?
Is the alleged bullying of Mr Cole and management’s response to it relevant to the
question of whether or not the dismissal was harsh, unjust or unreasonable?
Were Mr Cole’s communications between the stand down and the termination
inappropriate?
Is the post dismissal conduct in repeated contact with managers relevant to either
merits or remedy?
Was it reasonable for PQ to require Mr Cole to attend a medical examination by a
practitioner selected by the company to assess his fitness for work prior to allowing him
to return to work?
[23] It is accepted that an employer may have the right, depending upon the circumstances,
to require a medical examination where the employer has concerns that an employee cannot
perform the inherent requirements of the job. The clearest contemporary statement of this is in
the decision in Blackadder v Ramsey Butchering services Pty Ltd3 and in particular the
following:
3 [2002] FCA 603.
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“67 An employer has, as indicated above, strict obligations under the NSW legislation
to ensure the safety and well-being of its employees. The importance of occupational
health and safety is also reflected in the Act. Whilst an AWA, in general, prevails over
conditions of employment specified in State laws to the extent of any inconsistency,
provisions which relate to certain matters, such as occupational health and safety,
operate subject to any relevant State law (see s 170VR(2) of the Act).
68 It is, in my opinion, essential for compliance with the above duties, that an
employer be able, where necessary, to require an employee to furnish particulars
and/or medical evidence affirming the employee's continuing fitness to undertake
duties. Likewise, an employer should, where there is a genuine indication of a need for
it, also be able to require an employee, on reasonable terms, to attend a medical
examination to confirm his or her fitness. This is likely to be particularly pertinent in
dangerous work environments. Abattoirs entail obvious risks, among other things, of
injuries from the repetitive use of knives at speed, and to the spinal column from the
necessity to twist, bend and/or lift.
69 The question whether it is reasonable for an employer to request an employee to
attend a medical examination will always be a question of fact as will the question of
what are reasonable terms for the undertaking of the medical examination. The matters
will generally require a sensitive approach including, as far as possible, respect for
privacy. Nevertheless, I assume that there now should be implied by law into contracts
of employment terms such as those set out in the first two sentences of the preceding
paragraph, on the basis that such terms pass the test of "necessity" accepted by
McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995)
185 CLR 410 at 450.”
[24] Based upon this authority I consider that the following matters need to be considered
in answering the question of whether the requirement to attend the medical examination prior
to return to work was reasonable.
a. Was there a genuine indication of the need for the examination such as prolonged
absences from work or absences without explanation or evidence of an illness which
related to the capacity to perform the inherent requirements of the job?
b. Had Mr Cole provided adequate medical information which explained absences and
demonstrated fitness to perform duties?
c. Is the industry or workplace particularly dangerous or risky?
d. Were there legitimate concerns that Mr Cole’s illness would impact on others in the
workplace?
e. Did Mr Cole agree to the assessment by the practitioner selected by the employer?
f. Was Mr Cole advised of the details of the conduct which led to the concerns that he
was not fit for duty?
g. Was the medical practitioner advised of the issues of concern and were those matters
focused on the inherent requirements of the job? What information was proposed to be
given to the medical practitioner about the actual job requirement?
h. Was Mr Cole advised of the matters to be put before the medical practitioner for his
assessment?
i. Was the medical assessment truly aimed at determining, independently, whether Mr
Cole was fit for work?
[2016] FWC 1166
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[25] Mr Rice described the concern about Mr Cole’s capacity in correspondence to Mr
Cole on 17 June 2015 as follows:
“The reason that we have directed you not to attend for work until further notice is that
a number of issues have arisen in the workplace over the last few months which have
involved or affected you and we are concerned about the impact these issues have had
on you and on others.”
The issues were not further particularised to Mr Cole prior to the meeting on 24 June 2015.
[26] In the Statement of Mr Rice4 he says that at the meeting of 24 June 2015 (some ten
days after the stand down began) he described the concerns to Mr Cole as “you are having
problems from time to time maintaining an effective working relationship with some of your
work colleagues.” Mr Rice also says that he said “we are however extremely concerned that
you do not seem to be coping very well at work and we are concerned for your welfare”.5
[27] Mr Rice gave evidence that he cited a number of incidents that led to these concerns at
the meeting on 24 June 2015. Mr Cole was not asked to respond to these incidents at the
meeting. Mr Cole confirms that Mr Rice did cite a number of incidents. I am satisfied that
these incidents were raised and were the incidents which formed the basis of Mr Rice’s
concerns and his decision advised at the meeting of 24 June 2015 to require a medical
examination prior to any return to work. Mr Rice based his judgment on the reports provided
to him by Mr Lutterschmidt the details of which are contained in Mr Lutterschmidt’s
evidence.
[28] I will now consider each of the matters6 relied upon by Mr Rice at the 24 June meeting
in turn having regard to Mr Lutterschmidt’s evidence about each of the matters.
“The complaint you made in January against another employee regarding completion of
tasks prior to the end of the shift.”
[29] The report of this matter by Mr Lutterschmidt7 accepts that the complaints were in the
main justified and that the other employee was not completing tasks before the end of the
shift. Mr Cole was advised that he needed to ensure that he was at work on time for a
handover. There is nothing in this incident which suggests Mr Cole was erratic or unwell or
contribute to a reasonable management concern about Mr Cole’s capacity to perform the
inherent requirements of the job due to illness.
“The complaint you made in March that you could not keep up with the rate of boxes.”
[30] Mr Lutterschmidt advised that the rate had been increased. PQ submitted that the
increased rate had occurred on other shifts some time earlier. There is nothing unusual or
unexpected in Mr Cole advising that he “can’t keep up at this pace. I’m knackered” following
the increase in rate.8
4 Exhibit R1 at para 7.
5 Exhibit R1 at para 7.
6 The matters are set out in Exhibit R2 at para 7, Statement of Mr Rice.
7 Exhibit R8, Attachment 8.
8 Exhibit R8, Attachment 12.
[2016] FWC 1166
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“The complaint you made in April regarding the way various employees were behaving
towards you.”
[31] Mr Lutterschmidt says that Mr Cole told him at the time he raised the issue that “he
was unsure as to what behaviours and actions from the other employees constituted workplace
bullying”. Mr Lutterschmidt provided him with information about the bullying policy and Mr
Cole then told him that he had read the material and that he didn’t want to pursue the matter
further. There is nothing unreasonable or improper about this behaviour. It does not mean that
there were not issues of concern for Mr Cole or that those issues had no justification.
[32] Mr Cole gave evidence of an incident which had occurred in January 2015. Mr Cole
provided photographic evidence of a rope noose that he says was placed above his work
station. Mr Cole says that he cut it down but it was put up again in the same place the next
night. Given the limited number of persons who work in the area Mr Cole believes that he
knows the identity of the employee responsible and he has no doubt that the placement of the
noose was action directed against Mr Cole. Mr Cole sent an email to Mr Lutterschmidt
drawing the matter to his attention. Mr Lutterschmidt did not take any action about the matter.
[33] I am satisfied that this was a very serious incident which is relevant background to the
concerns Mr Cole had about the manner in which he was treated by other employees. It
strongly suggests that there may have been a reasonable basis for Mr Cole’s concerns. This is
particularly the case given Mr Cole is suffering from depression and made a number of
references to suicide in his written communications.
“The differences of opinion you had with another plant operator in May regarding
unscheduled down time.”
[34] The only incidents in May referred to in Mr Lutterschmidt’s statement relate to Mr
Gordon McCrae. The incident referred to was in the week prior to 17 May 2015. Mr
Lutterschmidt told Mr McCrae that the suggestion that Mr Cole had made would have
corrected the problem and prevented the maintenance department from coming in. The report
of the discussion of the incident suggests that Mr Lutterschmidt believed Mr Cole was the
aggrieved party and there was nothing unreasonable or erratic in Mr Cole’s behaviour.9
“The ongoing tension between you and Gordon throughout May.”
[35] Apart from the matter referred to above, the first matter referred to by Mr
Lutterschmidt was on 17 May 2015. Mr Cole provided Mr Lutterschmidt with a report on that
incident at the time.10 The report is clear, calm and reasonable. There is no reason to
disbelieve Mr Cole’s account. Mr Lutterschmidt’s account of the meeting to discuss the
matter on 20 May 2015 includes an admission by Mr McCrae that he had been aggressive
towards Mr Cole.11 Mr Lutterschmidt reminded Mr Cole that he needed to focus on
completing all required tasks. However, overall the report does not suggest that Mr
Lutterschmidt concluded that there was anything unreasonable or irrational in the behaviour
of Mr Cole and it does suggest that Mr Cole had cause for concern about Mr McCrae’s
behaviour towards him.
9 Exhibit R8, Attachment 16.
10 Exhibit R8, Attachment 15.
11 Exhibit R8, Attachment 16.
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[36] Mr McCrae complained that Mr Cole had left the site on 21 May 2015 without
permission. There is no direct evidence as to the truth or otherwise of the allegation. Mr
McCrae was not called as a witness.
[37] On 22 May 2015 Mr Cole said that he could not work with Mr McCrae. Mr Cole said
that Mr McCrae had called him a smart arse and yelled at him for not responding quickly
enough to alarms and Mr McCrae refused to provide assistance in getting raw materials when
Mr Cole was under pressure. He raised a number of other complaints about Mr McCrae’s
behaviour. Mr Lutterschmidt wrote to Mr Cole “I appreciate your report and am comfortable
with the way in which you are handling the situation. If you feel, over time, that you are not
seeing an improvement in Gordon’s temperament towards you, I want you to let me know and
I will intervene”.12
[38] There is nothing to suggest that Mr Cole’s response to the behaviour of Mr McCrae
was unreasonable or irrational.
“The bullying complaint you made against another employee on 23 May which you
subsequently withdrew.”
[39] The complaint was about Mr McCrae. The allegations were of patronising, aggressive
and unreasonable behaviour.
[40] Mr Cole raised as part of the bullying complaint an incident which had occurred in
January. Mr Cole alleges that Mr McCrae deliberately used an air lance to flow leaked Qcel
towards him. This led Mr Cole to have to run out of the way to get fresh air. If the claim was
substantiated it would constitute seriously dangerous and unreasonable behaviour. There was
no evidence of any finding by PQ Australia that the incident as claimed by Mr Cole had not
occurred. However, PQ Australia submit that I should take account of the fact that Mr Cole
did not raise this incident with management until some four months after it occurred and Mr
Cole subsequently agreed to shift to work on a regular basis with Mr McCrae. In my
experience it is not unusual for a person who has been the victim of unreasonable behaviour
to be anxious and fearful about making a complaint. I accept that Mr Cole felt that he could
work with Mr McCrae and agreed to move to be rostered to work with him regularly. At the
time Mr Cole had concerns about the behaviour of some other employees. The issue of
unreasonable behaviour by Mr McCrae only became a major issue for Mr Cole after there
were a number of other incidents. Three is no basis for me to doubt the evidence of Mr Cole
about this matter and I accept his evidence.
[41] In respect to the allegations about the events of 21 May 2015 Mr McCrae admitted
that he had suggested that Mr Cole was a smart arse and agreed that he had spoken
aggressively. Mr McCrae also accepted that he had told Mr Cole that he didn’t help him out
often because Mr Cole had told Mr Lutterschmidt that Mr McCrae and other employees
watched movies on shift and used the air lance to clean up. Arising from the meeting about
the complaint Mr McCrae agreed to change the way in which he speaks to Mr Cole and his
attitude towards him. Mr McCrae apologised to Mr Cole. Mr Cole said that he accepted Mr
McCrae’s response “but said that he would judge GM by his actions”. Mr Lutterschmidt
reported that Mr Cole “accepted this outcome and considers this matter closed at this time”.13
12 Exhibit R8, Attachment 18.
13 Exhibit R8, Attachment 22.
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[42] It is clear that the contemporaneous notes of the meeting do not support a conclusion
that Mr Cole withdrew the bullying allegation. The contemporaneous notes of the meeting
also support a finding that there was a strong basis for the bullying allegation. Mr Cole agreed
that the matter was “closed at this time” but made it clear that he would monitor what
happened from that point onwards. This is not a withdrawal of the complaint. There is nothing
unreasonable about Mr Cole’s behaviour in this respect.
“The ongoing tension between you and Gordon during the first two weeks of June.”
[43] The Statement of Mr Lutterschmidt refers to a text message from Mr Cole of 8 June
2015 in which he advised that he stated “4 years of bullying and being used as the company
escape goat is enough Jack. I’m not waiting till morning to sort this out when your happy to
come straight out for Gordon’s sake.” Mr Lutterschmidt responded: “wait there. I will be
there not long after 6.30am”. Mr Cole responded: “I need to speak to management straight
after my shift. I will drive to Laverton if need be. Please notify me of what I need to do.” A
meeting was held on the morning of 9 June. Mr Lutterschmidt says that Mr Cole re-raised the
matters in the bullying complaint and the January issue. He asked to be transferred back to his
old partner to move away from Mr McCrae. Mr Lutterschmidt says that “given the recent
events” he wasn’t prepared to agree to this.
[44] Mr Cole gave evidence, which I accept, that the reference in the message to “I’m not
waiting till morning to sort this out when your happy to come straight out for Gordon’s sake”
is to an earlier occasion when Mr Lutterschmidt came to the site during the night shift in
response to concerns raised by Mr McCrae. Mr Cole believed that Mr McCrae was on that
occasion trying to blame him for inappropriate behaviour of Mr McCrae. It is not unusual for
employees who have been bullied to fluctuate between blaming others and themselves and to
be anxious about the consequences of pursuing a complaint. As a consequence it is not
uncommon or unreasonable for an employee to fluctuate between enthusiasm to pursue their
complaint and reluctance to do so. In context there is nothing unreasonable about Mr Cole’s
behaviour or anything that would suggest there was a reasonable basis for concern that he was
unable to perform the inherent requirements of the job due to illness.
“Your request on 11 June to change shift partners which you subsequently withdrew.”
[45] In the emails of 12 June 2015 Mr Cole apologised for his text message of 8 June 2015
and said that he would do his best to make things work. In that email he says that the
environment is stressful for him because “I’ve been dealing with some things outside of work
that I manage on my own because my wife is staying in a treatment clinic at the moment but I
am doing everything I can not to let this effect my work.”14 Mr Lutterschmidt asked for some
clarification. In response Mr Cole said that “I wanted to let you know that everything is ok
with me, I don’t need a counsellor and a little trust will go a long way. I realise I may have
lost some of your trust and for that I am sorry. I will attempt to earn it back.” He reiterated his
desire to change shift partners but also said that if management would not agree to this then he
was prepared to sort the issues out with Gordon and “try and keep the piece”. I am not
satisfied that Mr Cole withdrew his request to change shift partners. It is obvious from the
correspondence that Mr Cole was stressed and upset. Mr Lutterschmidt was aware of the
strong reasons for this stress and upset. Considered in context there was nothing particularly
unreasonable in Mr Cole’s behaviour.
14 Exhibit R8, Attachment 26.
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“The incidents which occurred on 12 June during night shift.”
[46] Mr Lutterschmidt interviewed Mr McCrae and two other employees about the events
on the night shift of 12/13 June 2015. However, he did not interview Mr Cole and at no stage
were the claims made by the other employees about the events on that shift put to Mr Cole.
[47] According to Mr Lutterschmidt’s notes Mr McCrae and another employee complained
about Mr Cole’s behaviour and performance on the night shift of 12 June 2015. Mr McCrae
complained about work not being properly completed and another employee complained
about the work station being in a mess when he relieved Mr Cole in the morning. Mr McCrae
says that “at 3.30pm I went out to give him his break, the exit line had 5 boxes, the in line had
had 4, the box erector had apprx 10, I said Daniel I can’t accept this you need to get up to
speed and then come and get me. … At 4am Daniel went to his car and left the line, which
was in even worse condition, I followed him out and said what are you doing you cant leave it
like that. Daniel said yelling, its 4 oclock Im going on my break. I said don’t yell at me, you
don’t like me yelling at you, (continuing with), the other packers can and do leave it loaded,
why do you think its ok for you not to.” Mr McCrae wrote that Mr Cole took 50 minutes
break and told him he had been to the police station and getting photos of his face.
[48] According to Mr Lutterschmidt’s notes of his interview with Mr Small, Mr Cole told
Mr Small that he had only had 1.5 breaks for the entire 12 hour shift and that Mr McCrae had
been falsifying the results to make him look bad and that he had been working flat out and
that he was never going to work with Mr McCrae again. Mr Small says that Mr Cole said
“contrary to belief I have not got depression, my wife has.” Mr Small says that he said to Mr
Cole: “A few weeks ago, none of us have a problem with you, you were quiet, kept to
yourself and did your job. Then you start carrying a phone around with you recording
conversation and place a video recording camera in the packing area. No one trusts you.” Mr
Small says that in response Mr Cole apologised. Mr Small then “offered him some advice on
how to get through his shifts with GM (Mr McCrae).”
[49] According to Mr Lutterschmidt’s notes of his interview with Mr Fearby, another
operator, Mr Fearby said that he told Mr Cole when he wanted to change operators to Mr
McCrae in April 2015 “he will experience a totally different operator”. Mr Fearby said that he
“is cautious in talking with DC as he feels that his behaviour and mannerisms represent a
person who is on a downhill slide”.
[50] Given that Mr Cole’s version of events was not considered it is hard to accept that
there was a reasonable basis for PQ Australia to conclude that Mr Cole’s behaviour on 12
June 2015 indicates that he may not be able to perform the inherent requirements of his job on
an ongoing basis. Considering Mr Cole’s version of events and the reports provided by Mr
Lutterschmidt there is reason to have some concerns about Mr Cole’s work performance and
conduct on the night of 12 June 2015. It is clear that he was not well. He took the next night
off and went to his doctor. The events also raise significant questions about the behaviour of
Mr McCrae. In context there is nothing about the events of 12 June 2015, absent a more
fulsome investigation, which included the matters raised by Mr Cole, that could justify a
conclusion that Mr Cole may be unable to perform the inherent requirements of the job.
[2016] FWC 1166
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“Your phone call to Jack on 13 June in which you said that you didn’t want to work
with Gordon any longer.”
[51] Mr Cole and Mr Lutterschmidt have different versions of this conversation.
[52] Only two workers are rostered to work on a night shift, a packer and an operator. Mr
Cole had worked with an operator for a long period of time but moved to work with Mr
McCrae from April 2015. As discussed above, there was conflict between Mr Cole and Mr
McCrae on the night shift of 12/13 June 2015. Mr Cole advised that he was not coming into
work on the following shift. Mr Cole went to the doctor on 14 June 2015 and received a
medical certificate that he was unfit for work on the night of 13 June 2015. Mr Cole told PQ
Australia that he was fit to return to work. Mr Lutterschmidt says that Mr Cole told him that
he was not coming into work on the night of the 13th because he could not work with Mr
McCrae and stated that he was not sick. Mr Lutterschmidt stood Mr Cole down from work
with pay.
[53] Mr Cole denies telling Mr Lutterschmidt that he was not sick and says that he said that
he was sick and that Mr Lutterschmidt told him that he did not believe Mr Cole was sick.
[54] I am satisfied that Mr Cole communicated to Mr Lutterschmidt that he was unhappy
about working with Mr McCrae given Mr Cole’s views about Mr McCrae’s conduct which
Mr Cole considered to be bullying.
[55] I am not satisfied that Mr Cole said that he was not sick. As a witness I found Mr
Cole to be confused upon occasions but I did not find him to be dishonest. Mr Cole made
concessions even when these were not favourable to his case. Mr Cole went to the doctor
within 24 hours and the doctor confirmed he was unfit for work. Mr Lutterschmidt’s notes of
his interviews with other employees about the events of the night of 12/13 March 2015
suggest that Mr Cole was agitated and distressed at the end of that shift. In these
circumstances I consider it unlikely that Mr Cole would have said to his manager that he was
not sick.
[56] It is not disputed that Mr Cole did obtain a medical certificate and provided it to the
employer. Mr Cole was stood down from employment and told that he was not permitted to
attend the work premises. Mr Cole gave uncontested evidence that he attended work on about
16 June 2015 in order to hand in the certificate but was instructed to leave the premises. I
accept this evidence. Mr Cole gave evidence which I accept that he had the certificate with
him with the intention of handing it in at the meeting on 24 June 2015 but forgot to hand it in.
This was the first opportunity Mr Cole had to hand in the certificate. An email to management
of 26 June 2015 says that the certificate was attached to that email.15 Mr Rice says that the
attachment was not included with the email. The next opportunity was the meeting of 7 July
2015. Mr Cole gave evidence that he handed in the certificate on that occasion and had not
been asked previously. Mr Rice says that he first saw the certificate on 3 August 2015. It is
not suggested that the delay in provision of the medical certificate in any way affected the
decisions of management to stand down Mr Cole or to refuse to allow him to return to work
until he had attended a medical examination by a practitioner selected by PQ Australia. In
these circumstances it is not necessary to determine the question of when the certificate was
handed in.
15 Exhibit R8, Attachment 39.
[2016] FWC 1166
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[57] The period from stand down on 13 June to the meeting on 24 June created
considerable uncertainty and anxiety for Mr Cole. I am satisfied that a reasonable person in
these circumstances would believe that the employer was attributing responsibility for the
conflict which had occurred on the night of 13 June and in the lead up to that event to Mr
Cole. This is particularly the case since it was Mr Cole and none of the other participants who
were stood down. I am satisfied that this caused Mr Cole considerable anxiety and distress
and that this explains his persistent attempts to contact members of PQ Australia management
to explain his position and to seek an audience to explain his position.
[58] I am now in a position to answer the questions posed earlier.
Was there a genuine indication of the need for the examination such as prolonged
absences from work or absences without explanation or evidence of an illness which
related to the capacity to perform the inherent requirements of the job?
[59] There were no prolonged or frequent absences from work. There were two specific
alleged absences without explanation and a general suggestion that there had been others.
There is no direct evidence about the first alleged absence. Mr McCrae was not called to give
evidence. The other absence took place during Mr Cole’s meal break on night shift. He was
absent for 50 minutes, including the time of the meal break, as he went to the police station to
report the bullying behaviour he was allegedly experiencing. Mr Cole says that he told
relevant employees that he was leaving the site during his break. Mr Lutterschmidt says that
Mr McCrae denies this but there was no direct evidence from Mr McCrae. There is no
evidence of any link between Mr Cole’s absences and any illness which might affect his
capacity to perform the inherent requirements of his job. There is adequate medical evidence
to justify the absence on 14 June 2015.
[60] There is no reasonable basis to assume that Mr Cole had any illness which related to
his capacity to perform the inherent requirements of the job. The fact that Mr Cole disclosed
that he was suffering from depression and claimed that he was being victimised and unfairly
treated because of that does not provide a reasonable basis to assume that he was incapable of
performing the inherent requirements of the job. Absent other evidence, there is no reason to
conclude that a person is incapable of performing work as a packer whilst suffering from a
depressive illness particularly when the employer is aware that the person is receiving
treatment for the illness from a medical practitioner.
[61] For the reasons discussed earlier none of the incidents referred to by Mr Rice give rise
to a reasonable concern that Mr Cole may be unable to perform the inherent requirements of
his job due to illness. Considering all the matters raised as a whole does not alter this
conclusion.
Had Mr Cole provided adequate medical information which explained absences and
demonstrated fitness to perform duties?
[62] I am satisfied that Mr Cole had provided adequate medical information which
explained his whole day absences. The relevant absence which provoked the stand down was
on 14 June 2015 and a medical certificate was provided. In the normal course if an employee
who is absent on personal leave provides a medical certificate for the period of absence that is
sufficient to demonstrate fitness to resume duties at the conclusion of the period covered by
the certificate. In the case of prolonged or frequent absence there will be some circumstances
[2016] FWC 1166
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where further evidence of fitness to perform duties will be reasonable. There is no basis for
further evidence in this case given the short period of absence and the lack of any clear
evidence of incapacity. The incidents of allegedly unauthorised absence during earlier shifts
does raise some concerns but Mr Cole was not requested to provide medical or other
explanation for those absences. In those circumstances the requirement for independent
medical examination is not justified.
Is the industry or workplace particularly dangerous or risky?
[63] More stringent requirements for evidence of fitness to perform duties may reasonably
be required in particularly dangerous or risky occupations such as airline pilots or meat
workers. I have considered the Statement of Mr Rice in respect to the health and safety risks
at the site.16 Although there are some risks associated with chemicals and guarded machinery
at the PQ Australia work site I am not satisfied that Mr Cole’s packing job is particularly
dangerous or risky justifying abnormal intrusion on private medical matters.
Were there legitimate concerns that Mr Cole’s illness would impact on others in the
workplace?
[64] There were some issues of concern about conflict between Mr McCrae and Mr Cole.
There was a reasonable basis for proper inquiry into the bullying allegations made by Mr Cole
against Mr McCrae. Following inquiry there may have been a basis for concerns about
conduct or performance to be raised with either or both of the employees. However, there was
no reasonable basis, prior to undertaking such inquiry, to conclude that Mr Cole’s depression
would impact on others in the workplace. There were no alleged instances of violent or
dangerous behaviour by Mr Cole.
Did Mr Cole agree to the assessment by the practitioner selected by the employer?
[65] I am satisfied that Mr Cole’s union representative, Mr Bonicia, agreed to Mr Cole
attending an independent medical examination at the 24 June 2015 meeting. Mr Cole did not
specifically reject Mr Bonicia’s position at the meeting on 24 June 2015. However, I am
satisfied that Mr Cole made it clear at all times that he was uncomfortable about this. Mr Cole
reiterated his position of opposition within hours of the meeting of 24 June 2015.17 PQ
Australia could have been in no doubt about this given the frequent email communications
from Mr Cole. At all times Mr Cole wanted to be given the opportunity to respond to the
allegations made against him concerning his conduct and concerning the conflict between
himself and Mr McCrae. Mr Cole was told by PQ Australia that he was not to have the
opportunity to respond or return to work until after he attended the medical examination.
[66] Mr Cole repeatedly expressed his concern about releasing and sharing information
about his medical condition with PQ Australia management. He gave evidence that
information about his medical assessment at the time of his employment in 2011 had been
shared by PQ Australia management with other employees. Mr Cole gave evidence that he
believed that this was the source of bullying behaviour by other employees and the source of
difficulties that he had in relation to other employees. Mr Cole said that other employees
believed that his initial medical assessment suggested that he had taken drugs. PQ Australia
16 Exhibit R7 at paras 17 to 19.
17 Exhibit R8, Attachment 38.
[2016] FWC 1166
15
did not refute this evidence and I accept it. In these circumstances I consider that Mr Cole’s
reluctance to share medical information to be reasonable. As early as 17 June 2015, that is
prior to the requirement to attend an independent medical examination being discussed, Mr
Cole advised Mr Lutterschmidt that “also please be aware of my reluctancy to discuss any
medical issues with management”.18
Was Mr Cole advised of the details of the conduct which led to the concerns that he was
not fit for duty?
[67] I am satisfied that matters were listed as described in Mr Rice’s statement.19 However,
details were not provided and Mr Cole was not asked to respond.
Was the medical practitioner advised of the issues of concern and were those matters
focused on the inherent requirements of the job? What information was proposed to be
given to the medical practitioner about the actual job requirement?
[68] Mr Rice provided evidence that a document was prepared to provide to the medical
practitioner. However, the document was not provided in evidence and there is no evidence
that the document was provided to the medical practitioner. The details of the issues of
concern and their link to the actual job requirements were not particularised to Mr Cole at the
24 June 2015 meeting. Given this failure I doubt that PQ Australia ever undertook that
exercise. I am not satisfied that the document advised the issues of concern which were
related to the actual job requirements.
Was Mr Cole advised of the matters to be put before the medical practitioner for his
assessment?
[69] Mr Cole was not advised of the matters to be put before the medical practitioner.
Was the medical assessment truly aimed at determining, independently, whether Mr
Cole was fit for work?
[70] I am not satisfied that the assessment could be truly aimed at determining,
independently, whether or not Mr Cole was fit for work given that the employer failed to
disclose to Mr Cole the matters to be put before the medical practitioner.
[71] I have some doubts about the assurances PQ Australia gave to Mr Cole that the
requirement to attend medical examination did not form part of any disciplinary action and
that PQ Australia had not concluded that he had engaged in any wrong doing. Mr Doran in his
statement says “having regard to the various work incidents that occurred prior to 14 June
2015 and that manner, tone and content of his persistent unsolicited and unwelcome
communications after that date, I do not believe that there is any prospect of the Applicant
having a satisfactory or effective working relationship with any employees of the Respondent
18 Exhibit R8, Attachment 35
19 Exhibit R1 at para 7.
[2016] FWC 1166
16
who will be required to supervise him.”20 Mr Lutterschmidt makes an identical statement.21
Mr Rice makes an identical statement.22
[72] Shortly after the stand down of Mr Cole, Mr Bonicia of the AWU has a conversation
with Mr Rice. Mr Rice’s notes include the following:
“SB: Steve asked whether his standing down was for disciplinary reasons.
DR: Indicated that it was, due to Daniel advising Jack by phone shrtly before his shift
was scheduled to start that he was not coming in to work, the reason being not because
he was sick but because he could not work with Gordon.
SB: Steve asserted that was incorrect and the Daniel took sick leave on Saturday night
and had a medical certificate to demonstrate that he was unwell….
SB: Indicated that this was a very stressful time for Daniel and he wanted to know
whether these ”next steps” would involve termination.
DR: I indicated that these next steps did not involve termination (I felt that this was
truthful as were are intending to propose to Daniel in the first instance that he undergo
a Fit for Work assessment.)”23
[73] This evidence reinforces my conclusion that the requirement to attend the medical
examination did form part of disciplinary action and that the employer had concluded that Mr
Cole had engaged in wrong doing particularly on the night of 13 and 14 June 2015 but had not
given Mr Cole adequate opportunity to respond to the particulars of any allegations.
[74] Although it may not have been PQ Australia’s intention, the requirement to attend a
medical examination in this case meant that a proper investigation of a bullying complaint
was delayed or avoided and there was also a failure to deal with concerns about Mr Cole’s
conduct or performance in a transparent and fair manner. An employer cannot expect to have
a model workforce. A workforce will include people who are ill, are affected by the stresses
and strains of life outside work and who may at times be both difficult, unconventional and
unusual.
Conclusion in respect to the reasonableness of the direction to attend the medical
examination.
[75] Given my finding above I am satisfied that it was not reasonable for PQ to require Mr
Cole to attend a medical examination by a practitioner selected by the company to assess his
fitness for work prior to allowing him to return to work.
[76] PQ Australia referred to it’s policies. The fit for work policy is about drugs and
alcohol and so has no relevance to this matter. There is nothing in the OHS policy which is
relevant to the requirement to attend a compulsory medical examination. The disciplinary
policy is not relevant because it provides for a hierarchy of warnings for underperformance
and PQ Australia says that the termination was not related to underperformance or misconduct
other than the refusal to obey the instruction to attend the medical and the instruction not to
communicate with other managers.
20 Exhibit R5 at para 26.
21 Exhibit R6 at para 49.
22 Exhibit R7 at para 72.
23 Exhibit R8, Attachment 34.
[2016] FWC 1166
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Did the failure of Mr Cole to agree to attend the medical examination constitute a valid
reason for dismissal?
[77] For the reasons discussed above the direction was not reasonable and therefore I am
not satisfied that the failure to agree to attend the medical examination constituted a valid
reason for dismissal.
Did the failure of Mr Cole to comply with the direction to communicate only with Mr
Doran about the return to work issues constitute a valid reason for dismissal?
[78] The letter from Mr Doran of 15 July 2015 included the following:
“As all future communications regarding your work status will be with me, any
evidence of you continuing to barrage either Jack or David with emails or texts
regarding this matter will be viewed as additional examples of your refusal to
cooperate in the process outlined which was intended to resolve this issue.”24
[79] I am satisfied that this was a direction from management to Mr Cole. I am also
satisfied that the direction was reasonable. Mr Cole had sent a large number of
communications to both Mr Lutterschmidt and Mr Rice. It was reasonable for PQ Australia to
determine a single point of contact to deal with the issues.
[80] The dismissal letter referred to the blatant disregard of instructions to not contact local
management as the matter which formed part of the decision to dismiss Mr Cole. This is a
clear reference to the direction of 15 July 2015 quoted above.
[81] Mr Lutterschmidt received a text message from Mr Cole on 19 July 2015. That text
message was a clear breach of the direction of 15 July 2015 not to communicate with others
about the return to work issues. PQ Australia did not produce any other communications from
Mr Cole during the period from 15 July 2015 until the date of the dismissal which were in
breach of the direction. Mr Rice gave evidence that there were a large number of
communications from Mr Cole to him in the period leading up to 14 August25 but there is no
evidence as to how many were addressed directly to Mr Rice during the period from 15 July
2015 to 23 July 2015. Mr Rice was “copied” into some communications between Mr Cole and
Mr Doran during this period but I do not consider this to be a clear breach of the direction. It
is alleged that Mr Cole visited the work site on 21 July 2015 in an attempt to discuss matters
with management. He was turned away by security.
[82] Although the term bombardment might be appropriate to describe the number of
communications with Mr Lutterschmidt and Mr Rice in the first two weeks of July 2015, it
would not be appropriate to describe the number of communications to them in the period
from 15 July 2015 to 23 July 2015 as bombardment. I accept the evidence of Mr Doran, Mr
Rice and Mr Lutterschmidt that there was a bombardment of communications in the period
following the dismissal.
24 Exhibit R8, Attachment 51.
25 Exhibit R7 at para 55.
[2016] FWC 1166
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[83] During proceedings PQ Australia suggested that the misconduct related to directions
given not to contact or harass local management. They referred to emails and letters from Mr
Rice to the applicant during the period from 17 June 2015 to 10 July 2015. The
communication of 17 June was that Mr Cole should not discuss the matter with his work
colleagues. I am not satisfied that this was a reasonable instruction. On 9 July 2015 Mr Rice
asked that communications be directly with him and that Mr Cole no longer contact Mr
Lutterschmidt. Mr Cole was reminded of this on 10 July 2015 and Mr Rice said that further
texts had been sent to Mr Lutterschmidt. I am not satisfied that these communications are
relevant to the instruction issued by Mr Doran on 15 July that communications should no
longer be with Mr Rice but should be with him directly.
[84] I am not satisfied from the evidence that there was serious and continuous breach of
the direction during the period from 15 July 2015 to 23 July 2015.
[85] Given Mr Cole’s obviously desperate desire to have the opportunity to respond to the
allegations which were the basis of PQ Australia’s direction that he attend a medical was
reasonable, I am not satisfied that the limited breaches of the direction not to communicate
with others about his work status were sufficiently serious as to be a sound, defensible or well
founded reason for dismissal. The breaches of the direction were not a valid reason for
termination.
[86] Right up until the termination on 23 July 2015 PQ Australia assured Mr Cole that he
could return to work provided he attended the independent medical examination. PQ Australia
was therefore clearly of the view that the breaches of the direction not to contact Mr Rice and
Mr Lutterschmidt were not in themselves sufficiently serious to justify termination of
employment.
Is the issue of the recording of conversations by Mr Cole relevant under other matters to
the question of whether or not the dismissal was harsh, unjust or unreasonable? Is it
also relevant to remedy?
[87] PQ Australia rely on the decision in Schwenke v Silcar Pty Limited.26 This case is
clearly distinguishable. In the Schwenke case the issue of the recording of conversations was
specifically referred to in the letter of termination as a reason for the dismissal. In this case it
was never raised as a reason for dismissal even though Mr Cole repeatedly raised his desire
for the recording of the meeting of 9 June 2015 to be heard by management. In the
circumstances of this case PQ Australia specifically told Mr Cole that no disciplinary action
was being taken against him. The issue of the recordings was known to management prior to
the dismissal and was the subject of correspondence between Mr Cole and PQ Australia. The
issue did not significantly contribute to the decision to terminate Mr Cole.
[88] Mr Cole gave evidence that he had approval to make various recordings of
conversations to assist his training to become an operator. He could replay the recordings to
help him remember what needed to be done. He says that the camera was to be placed so that
he could leave his work station to move to other parts of the plant to assist his training in the
operator work. The camera would enable him to observe when he needed to return to his work
station. Mr Cole says that the camera was never in operation and that he fully intended to seek
approval before he used the camera. There was no direct evidence which contradicted Mr
26 [2013] FWC 4513.
[2016] FWC 1166
19
Cole’s evidence on these matters and I accept his evidence. I appreciate why other employees
might have considered the behaviour in installing the camera and recording conversations to
be both strange and inappropriate.
[89] Mr Cole says that Mr Lutterschmidt was aware that he was recording the meeting of
June 9. This was the conversation most often referred to by Mr Cole in his materials. Mr
Lutterschmidt says that he was not aware of the recording.
[90] Although I accept Mr Cole’s evidence in respect to the recordings he made for training
purposes I consider it unlikely that PQ Australia managers would have agreed to the recording
of meetings to discuss workplace relations incidents and issues. I consider that making such
recordings was inappropriate and damaging to the trust managers have in Mr Cole. I also
consider that the placement of the camera was inappropriate.
[91] This is a matter which is relevant to the issue of whether or not reinstatement is
appropriate and also, to the extent this matter contributed to the decision to dismiss Mr Cole,
as to whether or not there should be a deduction from compensation for misconduct.
[92] The making of unauthorised recordings can, depending upon the circumstances, be a
valid reason for dismissal. Considering all of the circumstances it is not a valid reason for
dismissal in this case. However, it is a factor which I have considered in making the overall
decision as to whether or not the termination was harsh or unreasonable. The placement of the
camera and the making of the recordings are a factor which stand against a finding that the
termination was harsh and unreasonable. However, I do not consider that they are a strong
factor in this case which outweighs the absence of a valid reason for termination.
Is the alleged bullying of Mr Cole and management’s response to it relevant to the
question of whether or not the dismissal was harsh, unjust or unreasonable?
[93] I am satisfied that Mr Cole had raised with management a number of matters which
suggested that he was the victim of bullying behaviour by other employees. Following a
meeting where Mr Cole agreed to a possible resolution of his bullying complaint against Mr
McCrae there were other incidents which Mr Cole believed included unreasonable behaviour
by Mr McCrae. After the June 12 events Mr Cole expressed his desire not to have to work
further with Mr McCrae. Mr Lutterschmidt had earlier found that there was some basis to the
claims of unreasonable behaviour which had been raised by Mr Cole. PQ Australia failed to
properly investigate the events of June 12. They did not get Mr Cole’s side of the story. In
these circumstances it is understandable that Mr Cole would feel his side of the story was not
being listened to and that the requirement for the medical examination was action which
potentially threatened his employment. The failure of PQ Australia to adequately deal with
serious bullying allegations is a relevant factor in judging some of the unusual and obsessive
behaviour of Mr Cole including the issues of repetitive and unwelcome communications and
the recording of communications. .
Were Mr Cole’s communications between the stand down and the termination
inappropriate?
[94] PQ Australia submits that Mr Cole’s emails and text messages to managers were
“rambling, inconsistent, frequently incoherent, and in some cases threatening and caused
alarm to the individuals concerned.” PQ Australia also say that on one occasion Mr Cole
[2016] FWC 1166
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attempted to access the site without authority whilst stood down “requiring the Respondent to
employ additional security at the site out of concern for the safety of its employees.” PQ
Australia submits that Mr Cole’s conduct amounted to intimidation and harassment. I have
considered all of the written communications.27
[95] Mr Doran says that he has received 120 emails from Mr Cole since 15 July 2015. Mr
Doran says that Mr Cole has made “threats to enter the Respondent’s premises without
authority and has threatened to commence litigation against the Respondent’s employees.”28
Mr Rice made an identical statement.29 Mr Lutterschmidt has made an almost identical
statement.30 I do not consider a threat to commence litigation in circumstances where an
employee has justifiable grievances could be a consideration in determining the merits or the
appropriate remedy in an unfair dismissal case.
[96] It is certainly true that reading Mr Cole’s emails following his stand down and prior to
the termination of employment reveals Mr Cole’s anguish and his desperate attempts to get
management to appreciate his side of the story in respect to the incidents raised by PQ
Australia. The emails are repetitive and emotional. I accept that the emails and texts were not
welcomed by Mr Lutterschmidt and Mr Rice. The content in some respects appears strange.
For example the letter of 22 July from Mr Cole to Mr Doran says that “your manager Jack
should be in jail for what he’s done” and that “my manger is mates with the most psychotic
control freak on earth”. Mr Cole writes that the context is that he “was diagnosed with
depression on June 14 and not having anyone to help get me through it.” However, when
considered in context it is understandable that Mr Cole felt compelled to explain his version
of events in respect to the incidents raised and express his feelings of hurt and perceived
injustice. The communications do not contain any threats of violence.
[97] I consider that the volume of the communications and some of their tone and content
to be inappropriate. However, I do not consider that they constitute of valid reason for
termination. They are also not so significant as to significantly affect my overall judgement as
to whether or not the termination was harsh or unreasonable.
Is the post dismissal conduct in repeated contact with managers by email, text message
and phone relevant to either merits or remedy?
[98] After the point of dismissal Mr Cole’s communications with Mr Doran became more
erratic and repetitive. I consider that the number of communications to be oppressive and they
amount to bombardment. I appreciate the very high level of anxiety and distress which has led
Mr Cole to take these actions. However, I accept the submission of PQ Australia that the
nature of these communications must be taken into account when considering remedy. I am
satisfied that the communications, when considered as a whole, have been destructive of the
relationship between the parties and it is difficult to conceive how the relationship could be
successfully re-established.
27 Exhibit R8, Attachments 34-69.
28 Exhibit R5 at para 24.
29 Exhibit R7 at para 72.
30 Exhibit R6 at para 50.
[2016] FWC 1166
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[99] There is no direct evidence to support a finding as to whether or not Mr Cole followed
Mr McCrae on 8 August 2015.
[100] The communications do not contain any threats of violence.
Taking these matters into consideration was the termination harsh, unjust or
unreasonable?
[101] As mentioned earlier, the factors other than valid reason and the other matters are a
neutral consideration. For the reasons set out above none of the other factors outweigh the
harshness and injustice of termination without a valid reason. The termination was therefore
unfair because it was harsh and unjust.
What is the appropriate remedy?
[102] Mr Cole was originally seeking reinstatement. During the proceedings he accepted that
reinstatement was not a viable option given that intervention orders are in place until February
2017 which prevent Mr Cole from being within a specified distance of his managers and the
workplace. The intervention orders were made ex parte. It is therefore possible that Mr Cole
could be successful in an application to set aside the orders. However, it is not possible for me
to make a reinstatement order conditional upon such an outcome. For the reasons discussed
earlier I also consider that the recordings made by Mr Cole and the post dismissal
communications have made reinstatement inappropriate.
[103] I consider that an order for compensation is appropriate in the circumstances of this
case.
[104] There was no submission that any order I might make would affect the viability of the
enterprise.
[105] I take into account that Mr Cole had approximately four years of service.
[106] Mr Cole received three weeks’ notice payment. This must be taken into account. Mr
Cole was paid out his accrued personal leave. This is an entitlement under the relevant
agreement where an employee resigns. Given that I have found that there was no valid reason
for termination I consider that this payment is an entitlement under the relevant agreement.
Unlike payments of accrued annual leave this cannot be considered as earnings attributable to
the period prior to dismissal. I consider that it is, like the payment for the notice period,
remuneration earned by Mr Cole from employment during the period since the dismissal.
[107] Although I have found that the recordings made by Mr Cole and the post dismissal
communications were misconduct, I am not satisfied that this misconduct contributed to the
decision to dismiss him. I accept the evidence of the PQ Australia witnesses that the two
reasons for the dismissal were the failure to follow the instruction in respect to attending the
medical and to cease communications with certain managers. I therefore can make no
discount for misconduct.
[2016] FWC 1166
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[108] Mr Cole has not earned any income from employment since the dismissal apart from
$500 earned from casual rubbish removal work which is not on going. Mr Cole gave evidence
that he has applied for 25-30 jobs and has been using Seek and other job agencies. He says
that he only started looking for work relatively recently as he was focused on getting his job
back with PQ Australia. In all of the circumstances I accept that Mr Cole’s distress and his
focus on this case go some way to explaining why he did not seek other work until recently. I
will therefore make a small discount of 5% due to inadequate efforts to mitigate the loss.
[109] There is no contest that Mr Cole was very attached to his job with PQ Australia. He
was well established in the company and had been employed for four years which is not a
short period. He had every intention of staying with the company for a long time. Until 2015
there were no serious issues with his capacity or conduct which would have affected this
ambition. I am satisfied that the only significant factors which limited the future length of
employment were the matters which flowed from the alleged bullying complaints and the
consequential responses of Mr Cole and the company. I have no doubt from reading the
correspondence and observing Mr Cole that his health has deteriorated since the termination
of his employment. However, I cannot assume that would have happened if the unfair
dismissal had not occurred. However, I do take into account that there were some issues of
concern about Mr Cole’s conduct prior to termination. I therefore conclude that Mr Cole
would have been employed for a further 9 months or 39 weeks.
[110] Mr Cole was paid $9208.21 for his accrued personal leave and was paid three weeks’
in lieu of notice making a total payment of $14,925.17.
[111] There are 32 weeks between the date of the dismissal and the date of this decision.
There will be two weeks between the making of the order and the date of payment of
compensation. Mr Cole would have earned $57,416.48 during this period if the dismissal had
not occurred. I am satisfied that Mr Cole’s total earnings in this period have been $15,425.17.
I do not consider that Mr Cole will earn anything during the period from the date of the
hearing of this matter and the date of the payment of compensation. I do not consider that any
deduction for contingencies is necessary or appropriate given that the factors are mostly
known and I have already discounted for some contingencies in estimating the period of
future employment. This leaves net compensation for the 34 week period of $41,991.31.
[112] During the remaining 5 weeks Mr Cole would have earned a further $8,443.60. I will
deduct 20% from this amount for contingencies leaving $6332.70.
[113] The total compensation is therefore $48,324.02. I deduct 5% from this amount for
inadequacy of efforts to mitigate loss leaving an amount of $45,907.82.
[114] There are no other matters I consider relevant. The issues surrounding the
inappropriate communications and the recordings are adequately dealt with in the decision not
to order reinstatement.
[115] The income Mr Cole would have earned from six months of employment was
$43,906.72. As the amount of compensation I have determined exceeds the six month cap, the
six month cap applies.
[2016] FWC 1166
23
[116] I will issue an Order that compensation of $43,906.72 be paid, less appropriate
taxation, within 14 days. I will provide the employer with liberty to apply for variation of the
payment period.
COMMISSIONER
Appearances:
Mr D Cole represented himself.
Mr C Barton appeared for the Respondent.
Hearing details:
2016
Melbourne
February 11
Printed by authority of the Commonwealth Government Printer
Price code C, PR577310
THE FAIR WORK COMMISSION AU
