DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Claus-Dieter Hengst
v
Town and Country Community Options Inc.
(U2015/12144)

Application for relief from unfair dismissal – inappropriate language – trust and confidence.

[1] This decision concerns an application by Mr Claus-Dieter Hengst under s.394 of the Fair Work Act 2009 (“the Act”). Mr Hengst is seeking an unfair dismissal remedy arising from his dismissal from his position as a Disability Support Worker and Workplace Health and Safety Advisor for Town & Country Community Options (“the employer”). The employer provides services on a not-for-profit basis to urban and rural communities for people with disabilities such as Down syndrome, cerebral palsy and intellectual disabilities.

[2] Mr Hengst had performed his duties (without formal incident) for some 18 years, having commenced employment in 1997.

Evidentiary cases

[3] On 22 September 2015, Mr Hengst explained that he was interviewing a co-worker, Mr Terry Mears, in relation to an OHS issue.

[4] In the course of the meeting, Mr Hengst and Mr Mears discussed an incident which occurred earlier that morning in which Mr Mears had struck a kangaroo in his vehicle. During the closing conversation Mr Hengst enquired of Mr Mears if he required any counselling over the incident. Mr Mears replied, “No”. Mr Mears then added in a jocular manner:

“I wasn’t overly concerned for the kangaroo and it’s not like I knew him personally.”

[5] With that light-hearted tone allegedly established, Mr Hengst went on to state - in what he seemingly considered to be a jocular fashion in the immediate context:

“So you’re ok then? You’re not going to lose the plot and go home and rape your daughter or anything like that?”

[6] Mr Mears was said to have laughingly responded to the suggestion made to him by Mr Hengst.

[7] The comment and the resulting laughter were overheard by another member of the employer’s staff, Ms Elizabeth Fazakerley. Ms Fazakerley worked in the same office with Mr Hengst and was seated some 2 metres from Mr Hengst.

[8] Ms Fazakerley claimed that upon hearing the comment by Mr Hengst she “sharply recoiled” and said:

“Claus! That is not appropriate!”

[9] When pressed under cross examination, Mr Hengst had no recollection as to whether Ms Fazakerley had so interjected.

[10] Ms Fazakerley claimed further that Mr Hengst had “caught her eye” before making the comment in question and had then turned to see her reaction as he said it. Mr Hengst denied having done so.

[11] In his witness statement, Mr Hengst stated that his comment was immediately recognised by himself as a “slip of the tongue that just came out.” As soon as he had said the offending words, Mr Hengst stated that he “tried to recover from it” (sic). His evidence in support of this – adduced through cross examination – was that he tried to make the situation that had emerged light hearted.

[12] Ms Fazakerley claimed that she had been “stunned and shocked” by the comment made by Mr Hengst. The following day Ms Fazakerley spoke with Mr Evan Munroe, the Chief Executive Officer for the employer. Mr Munroe confirmed the depth of Ms Fazakerley’s reaction and observed that she had been close to tears whilst talking with him.

[13] Ms Fazakerley also stated that she further discussed the matter with Mr Hengst on 23 September 2015 and Mr Hengst had said to her that he’d “learnt from the experience and it would not happen again.”

[14] Mr Hengst was also said to have stated to Ms Fazakerley that:

“How else can I learn if you do not tell me about these things?”

[15] I add that this was not the first occasion on which Ms Fazakerley had indicated her discomfort with his conduct. Ms Fazakerley stated that she had expressed concern to Mr Hengst in 2013 and 2014 when he wore an apron to the Christmas parties which had a representation of a woman’s breasts on them (and to which tinsel had been attached).

[16] Ms Fazakerley stated that she had also raised with Mr Hengst his conduct in relation to a disabled service user with whom Mr Hengst maintained on ongoing joke, so Ms Fazakerley had perceived it, about “patting her pussy” for him (when she returned home). Ms Fazakerley argued that the service user was embarrassed by the exchange but participated nonetheless. Mr Hengst claims there was no double entendre intended and that he knew the service user to have a cat.

[17] Ms Fazakerley further indicated to Mr Hengst that a document under Mr Hengst’s control and handed to Ms Fazakerley which lampooned office worker sensitivities about “hurt feelings” in the workplace was inappropriate and he should ensure - for his own interests - that senior staff, such as Mr Munroe, not see it. The document included a check list as to why the person filing the “Hurt Feelings Report” had filed the report:

“Reasons for filing this report. (Check box)

1. I am thin skinned
2. I am a pussy
3. I have woman hormones
4. I am a queen
5. I am a little bitch

[…]

Name of “Real Man” who hurt your sensitive little feelings:______________”

[18] Mr Hengst argued that he did not hand the document to Ms Fazakerley, as Ms Fazakerley asserted, but that she must have observed it by other means.

[19] To return to the events of 23 September 2015, later that day and following his conversation with Ms Fazakerley, Mr Munroe telephoned Mr Hengst and queried his conduct and enquired as to whether he considered the comments to Mr Mears to have been appropriate.

[20] Mr Hengst claimed that he was “gobsmacked” that the issue had been raised by Mr Munroe.

[21] In the course of the conversation with Mr Munroe, the notes of which were taken by a third party and formed part of Mr Munroe’s statement, Mr Hengst initially contended the phrase was no more than “a light hearted comment”, but it “came out wrong.” Mr Munroe expressed a contrary view and claimed the comment was “not right under any circumstances and that he could not think of any place or time when such a thing should ever be said.”

[22] Mr Hengst was said to have ultimately agreed with Mr Munroe and considered the comment to have been inappropriate. Mr Hengst went further in his statement and claims that he indicated to Mr Munroe that his comments were “stupid” and that he gave his “profuse apologies.”

[23] Mr Munroe thereafter invited Mr Hengst to attend a show cause meeting on Friday 25 September 2015. By that time, Mr Hengst had contacted Mr Mears and apologised for his comments. Mr Mears did not consider the interaction or Mr Hengst’s comments to constitute any issue and did not wish to take any action.

[24] At the meeting of 25 September 2015, at which Mr Hengst had a support person, Mr Hengst again was said to have been very apologetic for his conduct. Mr Hengst’s show cause response letter stated that:

“My comment which was light heartedly said, in hindsight was totally out of order.”

[25] In his statement prepared for these proceedings Mr Hengst stated in respect of his comments:

“I […] made what I thought at the time a humorous comment, this was taken as such by the person being interviewed, but overheard by another female staff member who decided that it was inappropriate and reported it to our CEO.”

[26] In the same statement, Mr Hengst stated:

“As it was a slip of the tongue, I don’t believe it was deliberate. It was an accidental outburst.”

[27] Mr Hengst claims that Mr Munroe’s comments over the course of the show cause interview appeared to be focused on finding reasons to dismiss him. That is, Mr Hengst claims that Mr Munroe complained of worst-case scenarios such as if a person who had been exposed to child abuse had heard the comments, and that the comments constituted sexual harassment of another female in the office, who had overheard the remarks.

[28] The record of the show cause meeting does not entirely reflect Mr Hengst’s recollection. The record does show that Mr Hengst, at the time of the incident, failed by his own admission to take into account that another person (Ms Fazakerley) was “in earshot.”

[29] Mr Hengst claimed that Mr Munroe adjourned the meeting to consider the circumstances. The meeting resumed shortly thereafter and Mr Hengst was dismissed from his employment. Mr Hengst was subsequently provided with a termination letter dated 25 September 2015. That letter in part read as follows:

“On Wednesday 23^rd September you met with myself by phone link and with Karen Miller present as minute taker. In that meeting you were asked a series of questions relating to a particular comment you made directly to a staff member in in front of your office co-tenant on Tuesday, 22 September 2015. Specifically you are asked when acting in your role as a WHS advisor and querying a male staff member if they required counselling or debriefing after an incident you stated “you’re ok, you’re not going to go home and rape your daughter are you” which was followed by laughing. You admitted in our meeting to saying this and said it was just in jest and laughed saying it had in taken the wrong way. It was not until I queried you about whether this may be acceptable that you conceded it was wrong. Based on your admissions and given the extremely serious context of this matter you were issued with a formal request to attend a show cause meeting to respond as to why your employment should not be terminated.

On Friday, 25 September 2015 you attended a show cause meeting with myself and Karen Miller present as minute taker and Donna Midgley present as the staff advocate. In that meeting you were presented with a summary of facts regarding your conduct. You were then provided an opportunity to show cause as to why your employment should not be terminated. You presented a written and verbal response. I then took time to consider the reasons you presented.

Based on the balance of the serious nature of this incident and considering the reasons you put forward I am not satisfied that you should remain employed with Town & Country Community Options and therefore I have decided to terminate your employment for the following reasons:

• The comment you made in consideration of you as an employee of TCCO was completely inappropriate and cannot be justified nor excused.



• The comment you made in consideration of your position as WHS advisor was completely inappropriate and cannot be justified nor excused.



• The comment you made in consideration of the fact that TCCO provide support to vulnerable people with a disability, some of whom have been sexually abused as children and adults was completely inappropriate and cannot be justified nor excused.



• The comment you made in consideration of and prominence to a female work colleague was completely inappropriate and cannot be justified nor excused.



• This is a breach of the following TCCO policies which you acknowledged reading in May 2015:

→ 2.6 Assault, abuse or neglect of individuals
→ 3.0 Code of behaviour
→ 3.08 Duty of care
→ 3.10 Ethical practice
→ 3.25 Workplace health and safety

In summary this is considered to be wilful and deliberate behaviour by you that is inconsistent with the continuation of your contract of employment and in consideration of the organisational mission, clientele we support and in respect of the individuals and families we support this cannot be tolerated in any way.”

[30] The termination letter went on to indicate that Mr Hengst would be dismissed on the basis of pay in lieu of the requisite notice period under section 117 of the Act and the discharge of other accruals. Mr Hengst was paid 5 weeks in notice pay in lieu.

[31] Through his written statement, Mr Hengst did not agree that all of the above-mentioned policies were relevant to his conduct. For example policy 3.0, which concerned the employer’s code of behaviour, the behaviour did not constitute an assault, abuse or neglect under the terms of that policy (though it was admittedly inappropriate).

[32] In regards to policy 3.22 (Disciplinary action/dismissal), Mr Hengst did not believe the conduct to be so serious as to mean that the employment relationship had come to an end. Mr Hengst contended that his inappropriate conduct amounted to a “slip of the tongue” and was “an accidental outburst.”

[33] Mr Hengst did not consider the policy 3.10 (Ethical practice), to be relevant to his conduct.

[34] Under cross examination, however, Mr Hengst conceded that his conduct was not consistent with the employer’s Code of Conduct, which required staff to be respectful of differences, including in respect of gender, and to demonstrate respect for co-workers. Mr Hengst also conceded that his conduct was inconsistent with the injunction in the Ethical Practice guidelines “to act courteously to staff, and behave in an ethical manner at all times, upholding the reputation of the organisation […].”

[35] Mr Hengst also contended that Mr Munroe had effected the dismissal contrary to the employer’s procedural obligations to consult with the Board before so doing. Mr Munroe, in actuality, consulted the President of the Board, and not the Board as such. It was argued, therefore, that Mr Munroe acted outside his authority to dismiss Mr Hengst as he had not complied with the employer’s own internal procedures.

Legislative context

[36] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:

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.

Consideration

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)

[37] Generally, the employer will reserve the right to set expectations as to appropriate standards of conduct in communication within the workplace in the context of wider community standards, and with regard to the sensitivities associated with its own business. However, breaches of those expectations, once made out, must be considered and weighed within their particular factual matrix. Some breaches will be egregious and others less so. Particularly conspicuous or flagrant breaches may result in dismissal whilst breaches of a different order may warrant disciplinary responses of varying degrees.

[38] The current case, however, highlights some of the difficulties in according due weight to the array of relevant considerations.

[39] In this regard, I make the following relevant observations in respect of Mr Hengst’s circumstances as advanced to me:

• The comment made by Mr Hengst is distinguishable from a comment that is designed and intended to hurt, abuse or threaten another person;



• The direct recipient of comment was not offended by the comment and expressly wished to take no action in respect of Mr Hengst’s comment;



• Mr Hengst came to demonstrate remorse and contrition to his employer;



• Mr Hengst’s comment was not made in a public environment or intentionally, at least so he claimed, in a context in which it could be overheard;



• The public business of the employer was unaffected by the comment as it went unheard by any member of the public (other than a single member of staff who overheard the comment inadvertently (according to Mr Hengst));



• Mr Hengst was not provided an opportunity to rehabilitate himself; and



• Mr Hengst had been employed for 18 years in his role as a disability support worker and there was no record of any other instance of misconduct on his part over that period of time.

[40] Notwithstanding these observations, Mr Hengst’s evidence presents difficulties.

[41] Firstly, Mr Hengst denied seeking to involve Ms Fazakerley in the exchange he had with Mr Mears. Having heard the evidence, I do not believe this to be true. Ms Fazakerley gave sound evidence with a credible, detailed narrative that Mr Hengst caught her eye immediately prior to making the offending comment to Mr Mears. Ms Fazakerley’s evidence was candidly given and was a free of any animosity towards Mr Hengst. Indeed, it was disclosed through cross examination, and contrary to Ms Fazakerly’s wishes, that Ms Fazakerley had been disappointed that Mr Hengst had been dismissed from his job. Ms Fazakerley seemed to have had a view that Mr Hengst needed to be rehabilitated rather than sanctioned severely for his conduct (notwithstanding the fact that she believed she would find it discomforting to work with Mr Hengst in the future should he be reappointed to his prior position).

[42] Ms Fazakerley had signalled to Mr Hengst - in respect of three previous issues - that she was sensitive to aspects of his informal humour which he imported into a workplace in which the transactions are more formalised and subject to regulation. Reasonably, Mr Hengst was aware of this sensitivity. It appears to me on the balance of probability that Mr Hengst did seek to engage Ms Fazakerley in his exchange with Mr Mears; firstly seeking to obtain her attention and then seeking her reaction.

[43] If Mr Hengst had been conscious of his duties and obligations in the workplace he ought to have fully appreciated what the response, and its ramifications, might be. But Mr Hengst was not conscious of those duties and obligations to Ms Fazakerley and admitted as such under cross examination.

[44] It seems to me, moreover, that it was practically impossible for Mr Hengst to have overlooked the fact that Ms Fazakerley was seated in the same office some 2 metres from him when he made the comments that he did. His situational awareness could not have deserted him to such a degree.

[45] In my view, Mr Hengst was not honest in his disclosure to his employer about the nature and intent of his conduct on 22 September 2015. The intent of Mr Hengst’s conduct was to engage in jocular banter with Mr Mears and at the same time cause Ms Fazakerley embarrassment and challenge her cultural sensibilities. That is, Mr Hengst’s comment was deliberate and intended for a particular end, which is contrary to his various characterisations of his conduct (to which I will turn below).

[46] My conclusion in this regard is buttressed by my further concern as to how Mr Hengst construed and represented his conduct publicly. As I have set out above, Mr Hengst maintained two competing narratives to explain his conduct.

[47] On one hand, Mr Hengst claims he had made an inadvertent slip of the tongue and had effectively misspoken. That is to say, he was the victim of misfortune and had a lesser personal responsibility for the comment as a consequence. In this respect, under cross examination, Mr Hengst appeared to indicate that he actually intended to state “rape and pillage” instead.

[48] On the other hand, Mr Hengst claimed that he had deliberately sought to manufacture a humorous exchange, but owing to Ms Fazakerley’s sensitivities he had come to learn that the content of that exchange had been offensive, and he was remorseful for that. It was in this respect that Mr Hengst held out his prior experience as an ambulance officer which he claimed had caused him to adopt a sense of humour which could “be a bit inappropriate and may offend some people, but [was his] way of coping with life […].”

[49] It is not possible to sustain both narratives, though Mr Hengst moved from one narrative to the other in the course of his examination. It appears to me that the fact Mr Hengst maintained both narratives illuminates the fact that Mr Hengst did not at any stage fully comprehend the gravity of the comments that he made and their effect on those around him, particularly in an environment focused on the protection of the interests of the vulnerable in the community. It further illuminates the genuineness of the remorse which Mr Hengst came to exhibit to Mr Munroe.

[50] I add in this particular respect that at no point in Mr Hengst’s written witness evidence or otherwise is there any suggestion that Mr Hengst offered an apology to Ms Fazakerley personally or directly or expressly. However, Mr Hengst made strenuous efforts to do so in respect of Mr Mears, who had not been offended by the remark. Mr Hengst’s conduct in this regard suggest that despite the issue having been raised by Ms Fazakerley and having been subject to investigation by Mr Munroe, Mr Hengst did not consider the issue of Ms Fazakerley’s sensitivity to his remark needed to be addressed.

[51] It is only when the circumstances are so construed that it can be understood why Mr Hengst claimed that he was “gobsmacked” when he realised that the comments he made were to be subject to an investigation by Mr Munroe. If Mr Hengst had immediately digested the impact of the words that he had used and sought to “recover” them and immediately offer a mea culpa (as he said he had in one narrative line) he would not have at a subsequent point been “gobsmacked” that his employer took seriously his comments as uttered in its workplace. This is more so the case when it is understood that prior to Mr Munroe raising the incident with Mr Hengst, Mr Hengst had been confronted by Ms Fazakerley about the nature of his comment and was aware of Ms Fazakerley’s reaction. If Mr Hengst had genuinely appreciated the ramifications of his remark and its effect on others then he would not have been “gobsmacked that this had been raised” by Mr Munroe later the same day.

[52] Equally, if Mr Hengst had acknowledged having misspoken and immediately accepted he had made a mistake and sought to retrieve the situation (as he claimed in his evidence), then there is little likelihood he would have been “gobsmacked” that the issue of his comment had been raised subsequently. After all, the comment was described by Mr Hengst himself in his viva voce evidence as being “rather serious”, which caused him to try to recover the situation.

[53] When Mr Hengst’s evidence is considered as a whole, it suggests that Mr Hengst had not grasped or fully internalised the import of his conduct of 22 September 2015, despite what he may have said in his own defence and by way of ostensible remorse, and he had not honestly represented his behaviour to his employer.

[54] As consequence, in my view the employer could not confidently rely on Mr Hengst’s judgement in future circumstances in relation to the nature of his exchanges with his work colleagues or those vulnerable persons who utilise the organisation’s services, and how and in what manner and tone Mr Hengst might represent the organisation and its values publicly (and in relation to its particular service users). This is much more than a mere concern arising from an excess of sensitivity in relation to informal behaviour in the workplace.

[55] When these circumstances are weighed alongside other observations I have made above in respect of Mr Hengst’s conduct, I have reached the view that the employer had a valid reason for the dismissal.

Whether the person was notified of the reason

[56] Mr Munroe raised the issues of concern with Mr Hengst on 23 September 2015 and conducted a show cause meeting on 25 September 2015. Mr Hengst provided a written statement in explanation in respect of Mr Munroe’s concerns. I have referred in part to this response earlier in my decision. Because of this process, Mr Hengst was notified of the reason for Mr Munroe’s concerns (which ultimately led to his dismissal).

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[57] Mr Hengst was provided an opportunity to put his views in respect of Mr Munroe’s concerns through a show cause process, which he took up. The employer therefore provided Mr Hengst with an opportunity to respond to his employers concerns about his conduct.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[58] Mr Hengst contended that he was not given an opportunity to utilise a support person in respect of the initial telephone conversation with Mr Munroe on the afternoon of 23 September 2015. That said, at the show cause meeting Mr Hengst was assisted by a support person at that time. It does not appear to me that there was any unreasonable refusal by the employer to allow Mr Hengst to have a support person present to assist him in the course of the discussions with his employer.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[59] The employer was concerned about Mr Hengst’s conduct in a particular instance, not the performance of his duties. Thus, s.387(e) of the Act is not a relevant consideration.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[60] The employer employs some 80 employees in its organisation. There was no argument put to me that the size of the employer’s enterprise impacted on the procedures it followed in effecting the dismissal. The matter was raised by the employer’s representative but no claim to this effect was pressed.

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

[61] Similarly so, the employer makes no claim that the procedures followed in effecting Mr Hengst’s dismissal was in some manner affected by the absence of dedicated human resource management specialists in the organisation.

Any other matters that the FWC considers relevant

[62] Mr Hengst was a long serving employee, which I have noted earlier. He had not been subject to any adverse performance management or conduct reviews in the past, either. Mr Hengst, in effect, has lost his long-term livelihood because of a single incident (at least largely so).

[63] I note too that Mr Munroe arguably may not have fully discharged his internal administrative obligations to consult the Board in relation to Mr Hengst’s dismissal, though he did consult the President of the Board. Further, Mr Hengst was not provided an opportunity to demonstrate to his employer that he could amend his ways, as it were, and present himself as a different person.

[64] But that all said, when all the matters are weighed, Mr Hengst has failed to establish a sound foundation for trust and confidence on the part of his employer in his judgement in the future. I have said as much earlier. Mr Hengst’s conduct, the manner in which Mr Hengst has responded to that conduct (particularly so in respect of Ms Fazakerley), the way he sought to explain that conduct, and the degree to which Mr Hengst has been open and honest with his employer about his originating motivation are all relevant factors in reaching such a conclusion.

[65] Not all of the above concerns I have highlighted were put to Mr Hengst at the time of his dismissal. But the nature of Mr Hengst’s evidence in these proceedings, as I have set out above, suggests strongly that any such enhanced procedural opportunities would not have changed the outcome.

Conclusion

[66] Because of my finding as set out immediately above, Mr Hengst’s application under s.394 of the Act for an unfair dismissal remedy is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

M Heffernan, for the Applicant

C. Muir, for the Respondent

Hearing details:

2016

12 January

Brisbane (by telephone).

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