| [2016] FWC 1991 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
David Waters
v
Goodyear Australia Pty Limited
(U2015/11761)
COMMISSIONER CAMBRIDGE |
SYDNEY, 8 APRIL 2016 |
Application for relief from unfair dismissal - summary dismissal - misconduct involving incident with a firearm - valid reason for dismissal with notice - summary dismissal unreasonable - compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to s. 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 10 September 2015. The application was made by David Waters (the applicant) and the respondent employer is Goodyear Australia Pty Limited (the employer or Goodyear).
[2] The application indicated that the date that the applicant’s dismissal took effect was 24 August 2015. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 10 and 11 December 2015.
[4] At the Hearing, the applicant represented himself. The applicant called two witnesses, himself and Elizabeth Keenan, who each provided evidence in support of the unfair dismissal claim. The employer was represented by Mr J McKenna, counsel for the employer. Mr McKenna called two witnesses, who provided evidence on behalf of the employer.
[5] The applicant had worked for the employer for about 12 years. The applicant was employed as a Manager of IT&T for Goodyear’s Off The Road (OTR) – Asia Pacific business division. The applicant worked at the employer’s premises located in the Sydney suburb of Parramatta. The applicant was responsible for overseeing the IT functions of the OTR business division in Australia.
[6] The applicant described his abilities, knowledge and strong work ethic as being repeatedly acknowledged by leaders and teams at the highest level of the employer. The work performance of the applicant was not an issue of contest. The applicant’s dismissal was solely connected with an incident that occurred on 10 July 2015, at the employer’s premises at Church Street, Parramatta.
The Incident on 10 July 2015
[7] The incident which took place on 10 July 2015, and critically the applicant’s conduct during and after this incident, formed the basis for the employer’s decision to terminate the applicant’s employment summarily. At the outset, it is relevant to note that the only individuals present during the incident of 10 July, and who provided evidence of the relevant events, were the applicant and Ms Elizabeth Keenan. Notably, the applicant’s witness statement contained almost no detail of what took place during the incident of 10 July. Ms Keenan’s witness statement contained only marginally more detail than the applicant’s, and it did not provide sufficient information about important aspects of the incident, which only emerged during the cross examination of these two witnesses.
[8] The applicant is an internationally renowned competitive target shooter. His expertise in the discipline of rifle target shooting was reflected in, amongst other achievements, being the only non-American to hold the coveted “Distinguished Rifleman” badge. Ms Keenan is a keen competitive target shooter, but she does not have the applicant’s level of prowess. Ms Keenan had frequently sought the applicant’s advice and assistance in matters which might improve her competiveness as a target shooter.
[9] According to Ms Keenan’s statement 1, on 9 July 2015, she telephoned the applicant to inform him that she was going to purchase a particular bipod adaptor accessory for her rifle. Ms Keenan said that she told the applicant that she was going the next day (10 July), to a retail firearms store called Safari Firearms, which is located in the Sydney suburb of Bexley, to purchase the accessory for her rifle. She told the applicant that she wished to speak with him about the accessory, and other equipment she was thinking of purchasing. Ms Keenan stated that she asked the applicant if they could meet for lunch the next day to discuss these matters.
[10] Ms Keenan stated that, upon leaving her residence on 10 July, she decided to take her rifle with her so that she could ensure that the accessory would fit correctly. She said that at no time did she make the applicant aware that she would have the rifle with her. After purchasing the accessory for the firearm, Ms Keenan contacted the applicant by telephone and they agreed to meet for lunch at 1:00pm that day. Upon arrival at Parramatta, and in the vicinity of the applicant’s workplace, Ms Keenan contacted the applicant by telephone to inform him that she could not find anywhere to park her car. The applicant took this call while still in his office, and he indicated that he would allow her access to the secure car park of the building in which his office was located. The applicant then left his office, with his security pass for the purposes of allowing Ms Keenan entry into the building car park. The applicant did not take his wallet, or any other form of identification with him when he went to the car park.
[11] The applicant used his security pass to let Ms Keenan drive into the building car park. The applicant said that his intention was to only use his security pass to let Ms Keenan in, and then proceed directly to the coffee shop as arranged. The applicant told Ms Keenan to park in an area at the bottom of the car park, below street level. Ms Keenan proceeded to a particularly vacant area of the car park and parked her car, with the applicant following on foot.
[12] According to Ms Keenan’s statement, she and the applicant stood at the car and spoke for a few minutes. The applicant then asked to see the accessory, and according to Ms Keenan’s statement, she showed him the adaptor which was still in its plastic bag. However, during the applicant’s testimony, he stated that upon asking to see the accessory, he was “expecting to see it in a little plastic bag…” 2 but he could not recall actually seeing the accessory. Instead, Ms Keenan then opened the boot of her car and removed the Tikka T3 rifle from its carry bag.
[13] There was considerable contest in the evidence about the applicant’s reaction when the firearm was produced by Ms Keenan. The applicant’s reaction and conduct upon becoming aware of the presence of the gun during this incident was very important, and formed an important part of the misconduct that the employer relied upon for dismissal.
[14] The applicant stated that at the point when the rifle was produced, he stepped back from where this exchange was taking place at the rear of Ms Keenan’s vehicle, and said words to the effect of: “Oh my God. Liz, what are you doing?... You can’t have that here.” 3 In notes taken by the employer during an interview with the applicant on 17 July, the applicant was quoted as saying he did not immediately freak out, but became curious as to how Ms Keenan was able to get the accessory fitted onto the firearm. The applicant was recorded as saying: “After a couple of words, I said you need to put rifle back in the car. She said she would take part off. I didn’t argue with her”.4
[15] According to the notes of the employer taken on 17 July, the applicant then goes on to say “We were talking for a few minutes and then I gave her part back and instead of putting part back she started playing with the rifle.” It is unclear whether the conversation that took place occurred while Ms Keenan was removing the part from the rifle, as indicated by the applicant. Even so, what was apparent was that some time elapsed, even if only a few minutes, during which the firearm was displayed and was being examined by the applicant and Ms Keenan.
[16] The applicant claimed that there was some fumbling in returning the firearm to the car, and in an effort to expedite this process, he positioned himself in such a way as to immediately close the hatch of the car, in an attempt to encourage Ms Keenan to leave the car park as quickly as possible. The applicant stated that he was anxious for Ms Keenan to leave, and said to Ms Keenan to put the firearm away by saying: “You need to put that rifle back in the car.” 5 Within a period of about 2 minutes, three Police officers had arrived on the scene.
[17] The applicant and Ms Keenan had been seen by a member of the public who telephoned NSW Police and reported seeing a person or persons, with a rifle in the car park of the building occupied by the employer at Church Street, Parramatta. A large contingent of Police very quickly attended the car park, whereupon they encountered the applicant and Ms Keenan with the unloaded rifle.
[18] After speaking separately with the applicant and Ms Keenan, the Police verified the applicant’s identity by accompanying him back to his office where his wallet was located. The applicant was not charged with any offence, Ms Keenan was charged with an offence related to the ammunition that was in her car at the time of the incident.
[19] Shortly after the Police had left the scene and the applicant had returned to his office, he was approached by his immediate superior Mr Anil Singh, who attempted to question the applicant about the incident involving a rifle in the car park and the attendance of the Police. The applicant refused to speak with Mr Singh, and he said that he had been instructed by the Police not to discuss the incident with anyone.
[20] Although on the afternoon of the incident the applicant had told Mr Singh that he was instructed by Police not to discuss the matter, on the following Monday morning, 13 July, the applicant approached Mr Singh and offered to provide information about the incident that occurred on the previous Friday.
[21] The applicant provided evidence 6 that after taking advice from people (not including the Police) about the incident over the weekend, he decided to approach Mr Singh at approximately 9:30 am on Monday, 13 July 2015 to discuss the matter. Mr Singh made file notes7 immediately after his discussion with the applicant on 13 July 2015. Mr Singh informed the applicant that an investigation into the incident would be undertaken and this investigation would be conducted by someone who was independent of the OTR division. Mr Singh escalated the matter to the regional HR Director level, and Mr Trent Hudson was appointed to conduct the investigation into the incident of 10 July. That afternoon, Mr Singh informed the applicant that he was suspended from work on full pay for the duration of the investigation, and the applicant then left the workplace premises.
[22] On 15 July 2015, the applicant was contacted by Mr Singh, and advised that he was required to attend a meeting with himself and Mr Hudson on Friday, 17 July 2015 as part of the foreshadowed investigation.
[23] At approximately 3:00 pm on Friday, 17 July 2015, a meeting took place between Mr Singh and the applicant at the Goodyear offices located in Parramatta, and Mr Hudson participated by telephone. Mr Hudson informed the applicant that the purpose of the meeting was to ascertain all of the relevant information and facts of the incident of 10 July, and that what was discussed should remain confidential. Mr Hudson asked the applicant a series of questions and he made notes of the applicant’s responses. 8
[24] At the time, Mr Singh and Mr Hudson indicated their intention to have a follow up meeting, and in making those arrangements, it emerged that the applicant was due to commence pre-approved annual leave the next day, and would not return to work until 17 August 2015. Mr Hudson informed the applicant that depending on his findings, a disciplinary meeting may be required to be held, which would be tentatively scheduled for the first business day upon the applicant’s return from leave.
[25] In an email dated 12 August, the applicant was formally invited to attend a disciplinary meeting to be held at 9:00 am on 17 August 2015. The employer also provided the applicant with a letter dated 13 August 2015, which included allegations which were intended to be discussed at the disciplinary meeting.
[26] The applicant sought postponement of the disciplinary meeting because, inter alia, he was unable to arrange for a support person to be present with him. In addition, he provided brief written responses to the allegations set out in the letter of 13 August. 9 At the applicant’s request, the disciplinary meeting was re-scheduled for a second time to take place on 24 August.
[27] The disciplinary meeting on 24 August took place at the Goodyear Parramatta office and was attended for the employer by Mr Singh and Mr Hudson, while the applicant was accompanied by a support person, Senator David Leyonhjelm. During the course of this meeting, a series of additional questions were put to the applicant and the responses were mostly provided by Senator Leyonhjelm. In response to the allegations, the applicant and/or Senator Leyonhjelm, denied any wrong doing for his actions. The applicant also stated that there were no safety risks associated with his conduct and accused the employer of damaging his reputation.
[28] The meeting was adjourned to allow the employer to consider the applicant’s responses to the allegations, and the impact the incident and the applicant’s conduct had on the trust inherent in the employment relationship. As the primary decision maker, Mr Singh determined that his trust in the applicant’s judgement had suffered, and the applicant’s employment would be summarily terminated. The meeting was resumed and the applicant was informed of the decision to terminate his employment, accompanied by specific reasons. It was suggested by the support person that the employer reconsider its position and make a proposal. This suggestion was rejected by the employer and the meeting concluded.
[29] Subsequently, the applicant was provided with a letter of dismissal issued by Mr Singh and dated 25 August 2015, which stated that the decision had been made to summarily terminate the applicant’s employment for serious misconduct relating to the incident of 10 July. The letter of dismissal set out various aspects of the alleged misconduct arising from and following the incident of 10 July.
[30] The applicant was self-represented and provided a witness statement dated 26 October 2015, 10 together with a witness statement of Elizabeth Keenan dated 29 October 2015.11 The applicant did not provide written submissions or other documentation. However, at the Hearing he successfully introduced evidence in the form of emails, which had only recently come into the applicant’s possession. Particularly in the case of self-represented Parties, the Commission generally adopts a practical, informal and flexible approach to the provision of material upon which an unfair dismissal case may be advanced or defended. In this case, the Commission has attempted to provide the applicant with a comprehensive opportunity to adduce evidence of the factual circumstances of 10 July.
[31] The applicant was not served with a copy of the witness statements of Trent Hudson and Anil Singh until he made direct contact with the Commission on 9 December 2015. The applicant was provided with a copy of the employer’s outline of submissions and the witness statements of Trent Hudson and Anil Singh, by the Commission.
[32] At the Hearing, Mr McKenna acknowledged that the applicant had not been properly served with this material, and the employer did not oppose the applicant taking an adjournment to review those documents. However, in response, the applicant indicated that he did not require additional time to review the documents and only sought leave to submit into evidence four emails, which had come into his possession recently. After viewing the emails, Mr McKenna did not raise any objection to their admission, and foreshadowed that he intended to make submissions about the weight that should be attributed to this material as evidence. In closing submissions, Mr McKenna again invited the applicant to make whatever submissions he thought necessary to avoid any suggestion of prejudice that might have arisen from the late provision of the employer’s material.
[33] At the Hearing, the applicant and Ms Keenan gave evidence as witnesses, and the applicant introduced the aforementioned emails, dated 10 July, 2 November 2015 and 31 August and 8 December 2015 respectively, into evidence.
[34] The applicant made oral submissions during the Hearing which elaborated upon his witness statement. The applicant submitted that he had been unfairly dismissed and that his dismissal was the result of allegations that were entirely false and which he denied. The applicant said that he had been an outstanding employee of Goodyear Australia for a period of 12 years, and that the incident which took place on 10 July 2015, was not his responsibility and could not be attributed to the wilful or deliberate actions of himself.
[35] The applicant submitted that his claim for unfair dismissal centred on whether he was unfairly dismissed “on the facts given” and he seemed to suggest that some Goodyear associates acted unethically in the disciplinary and, ultimately, termination process.
[36] The applicant argued that the reason relied upon by Goodyear for the termination of his employment could not be held to be a valid reason, and he summarised that the case came down to three questions (and accompanying answers):
1. Is it common practice for employees of companies that lease office space in the building to let visitors into the car park?
Yes
2. Did the applicant ask the visitor who came to meet him for lunch on 10 July 2015 to bring a rifle?
No
3. Did the applicant know the visitor was carrying a rifle when she arrived at the car park?
No
[37] The applicant submitted that when the Police arrived at the Goodyear premises at the time of the incident on 10 July 2015, the only reason Goodyear became aware of the incident, the applicant’s involvement in the incident, and the Police presence, was because the applicant was not carrying personal identification. The applicant suggested that, had it not been for the applicant’s inability to properly identify himself to authorities at the scene (which required him to be subsequently accompanied by Police to his office to retrieve identification), no one else in the building would have known that the incident involved the applicant or any employee of Goodyear. The applicant said that this circumstance negated the employer’s claim of reputational damage suffered from the incident.
[38] The applicant submitted that he did not wilfully or deliberately ask a visitor to come into the car park with a gun, and nor did he know that the visitor was carrying a gun. Further, the applicant said that he did not wilfully or unreasonably continue to engage with any visitor in any way once the rifle had been produced. The applicant submitted that he did not have anything to do with the presentation of the rifle through the visitor. The applicant also sought to rely upon the evidence that was provided by Mr Hudson, whereby he came to the view that the applicant did not deliberately or wilfully allow the visitor to come into the car park in the knowledge that the visitor was carrying a rifle.
[39] The applicant also made submissions which were highly critical of the process that the employer had used to investigate and ultimately determine to dismiss the applicant. The applicant said that the process involved bullish like thuggery, and the investigation by Goodyear was incomplete and unacceptable.
[40] The applicant stressed that he was an employee of 12 years standing and a valuable employee, who was dismissed based upon a single two-minute timeline with no facts, no proof, and no evidence. Consequently, the applicant said that his summary dismissal was flawed and unjustified. The applicant also indicated that the real reason for his dismissal may have involved the prospect that the circumstances presented an opportunity to dismiss, rather than avoid a redundancy that may have been in contemplation.
[41] In terms of remedy, the applicant stated that he was seeking to be reinstated immediately with all his entitlements and back pay. Additionally, the applicant was seeking the Commission to Order all Directors of Goodyear and “other employees” who damaged his personal reputation by circulating emails and stories, both prior to and following his dismissal, to withdraw false statements and issue a written apology for their actions.
[42] The employer was represented by Mr McKenna of counsel, who submitted that the dismissal of the applicant was not harsh, unjust nor unreasonable and that the application should be dismissed. Mr McKenna referred to documentary material that had been filed in the Commission on behalf of the employer, in the form of an outline of submissions.
[43] Mr McKenna said that the applicant’s employment was summarily terminated on 24 August 2015 for his involvement in an incident which occurred at the premises of the employer on 10 July 2015. According to the submissions of Mr McKenna, there was valid reason for the applicant’s summary dismissal, and he relied on the conduct of the applicant in the incident which occurred on 10 July 2015, which was found to represent serious misconduct, as providing a valid reason for the summary dismissal.
[44] The employer also contended that the applicant’s conduct in respect to this incident was a breach of Goodyear’s policies and amounted to valid reason for dismissal. According to the submissions made by Mr McKenna, the employer had clear policies prohibiting weapons on its property, designed to protect the company’s reputation and ensure a safe and secure workplace. Mr McKenna said that the applicant’s conduct was in breach of those policies, and such a breach amounted to valid reason for his termination.
[45] Mr McKenna made submissions which concentrated upon the actions of the applicant during the 10 July incident, which were subject to an investigation conducted by Goodyear, and which ultimately concluded that the applicant’s conduct contravened various Goodyear policies and procedures, as well as workplace safety. Specifically, Mr McKenna submitted that the applicant had directly contravened the following three identified policies: Goodyear’s Global Zero Tolerance Policy on Discrimination, Harassment and Violence; Goodyear Australia Pty Ltd Associate Standards and Conduct Manual and Protect Our Good Name – Goodyear Business Conduct Manual.
[46] More broadly, Mr McKenna made submissions that the applicant had contravened and not acted in accordance with general Goodyear procedures, including:
(a) Failure to ensure the safety and security of fellow associates, building tenants and Goodyear assets;
(b) Engaged in conduct that resulted in a complaint and formal warning against Goodyear by the building owner;
(c) Engaged in conduct that resulted in a financial penalty against Goodyear by the building owner;
(d) Failure to ensure the protection and enhancement of Goodyear’s image and reputation;
(e) Engaged in behaviours inconsistent with Goodyear’s values and standards including the Code of Conduct; and
(f) Had breached the trust of the employment relationship.
[47] As to the incident of 10 July, and the conduct attributable to the applicant, the employer submitted that Ms Kennan introduced a dangerous weapon to the Goodyear workplace and its immediate surrounds, and the introduction of the high powered rifle and ammunition was facilitated by the applicant. The presence of the firearm and ammunition created a serious risk to the health and safety of people in the vicinity, and the reputation, viability and profitability of Goodyear’s business. The employer submitted that upon becoming aware of the presence of the firearm, the applicant did not require Ms Keenan to immediately put the firearm away or to leave the car park, and he ultimately refused to accept responsibility for his involvement in the incident.
[48] According to the submissions made by the employer, the applicant’s written response dated 18 August and his verbal responses in the disciplinary meeting which occurred on 24 August, displayed “no insight into the seriousness of the incident” and this had the effect of breaching the trust in the employment relationship. Further, because of the senior position occupied by the applicant, the result was that management felt they were unable to have confidence and “trust in his judgment and rationale into the future.”
[49] Consequently, the employer submitted that the applicant was summarily dismissed for serious misconduct, and there was valid reason for the dismissal which was “sound, defensible and well founded”. The employer submitted that the applicant’s conduct on 10 July did amount to a serious breach of his employment contract and it met the definition of serious misconduct contained in Regulation 1.07 of the Fair Work Regulations 2009.
[50] Mr McKenna also made extensive submissions on the issue of the procedural fairness afforded to the applicant, prior to his summary dismissal on 24 August, and he referred in particular to subsections 387 (b) and (c) of the Act. In his submissions, Mr McKenna said that the applicant was informed by Mr Singh that an investigation into the incident of 10 July would be taking place, and that he would be stood down for the duration of that investigation. The applicant was interviewed as part of this investigation on 17 July 2015, by Trent Hudson and Anil Singh, and allegations were directly put to the applicant in this interview about issues of serious concern.
[51] Mr McKenna noted that on 13 August, the applicant was formally invited to attend a disciplinary meeting on 17 August 2015, and the formal invitation stated that this meeting was intended to discuss the identified allegations. According to the submissions of Mr McKenna, the employer’s approach was conducted in satisfaction of the requirement to provide the applicant with an opportunity to respond, etc. as required under subsection 387(c) of the Act.
[52] Mr McKenna submitted that the disciplinary meeting was twice postponed at the request of the applicant, and the applicant was invited to respond to the allegations in writing if he wished to do so in due course. Mr McKenna said that the applicant had responded by email to the allegations set out in the employer’s 17 August letter.
[53] According to the submissions of Mr McKenna, the applicant was informed of the reason for dismissal, including the findings made regarding the allegations that were put to him in writing on several occasions. Mr McKenna said that the process involved due consideration by the employer before a final decision to summarily terminate employment was made. It was submitted by the employer that the events leading up to, and including the disciplinary meeting of 24 August, allowed the applicant adequate opportunity to respond to the allegations, in compliance with subsection 387(b) of the Act.
[54] In addressing other matters relevant to subsection 387(d) of the Act, Mr McKenna submitted that on each occasion the applicant was issued a formal invitation to attend the variously scheduled disciplinary meetings by way of correspondence dated 13, 17 and 18 August respectively, and the applicant was clearly informed that he was entitled to bring a support person, in line with Goodyear policy. At the disciplinary meeting held on 24 August, the applicant was present with a support person identified as Senator David Leyonhjelm, who was noted as acting more as an advocate rather than a support person.
[55] Mr McKenna’s submissions briefly outlined that the size of the employer’s enterprise had no impact on the standard of procedural fairness applied to the summary dismissal in this case. Mr McKenna also made submissions in respect of the issue of remedy. In this regard, it was submitted that the loss of trust and confidence that the employer felt in the applicant, meant that any reinstatement of the applicant, if it were found that he had been unfairly dismissed, would be an entirely inappropriate remedy. Mr McKenna referred to the communications made on behalf of the applicant by Senator Leyonhjelm, which he said contributed to there being an absence of even a glimmer of hope of a workable relationship between the applicant and the employer.
[56] Mr McKenna concluded his submissions by stating, that as a manager who held a responsible position at Goodyear, and being an experienced target shooter, the applicant ought to have known better than to conduct himself as he did on 10 July 2015. Mr McKenna submitted that in the circumstances, the applicant’s conduct on 10 July was “inappropriate and inexcusable,” and that in dealing with the applicant’s conduct following the incident, the employer's actions were reasonable and were open to it, and therefore, the application for unfair dismissal remedy should be dismissed.
[57] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[58] In this case, it was clear that the matter was confined to a determination of that element contained in subsection 385(b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.
[59] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
“(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.”
[60] In this instance, the evidence has established that the applicant was dismissed for reasons relating to alleged serious misconduct. In particular, the reason for the applicant’s dismissal involved his conduct in connection with the incident of 10 July. The employer determined that this conduct breached various company policies and failed to meet certain expectations regarding the safety and security of people and company assets. The employer determined that this was serious misconduct which warranted summary dismissal. Significantly, the employer also cited a breach of trust and confidence in the employment relationship, as part of the reasons for dismissal.
[61] The applicant contended that he was not responsible for the incident of 10 July. The applicant said that he was not aware of the presence of the firearm before it was produced, nor did the incident take place on the employer’s property. Further, he contended that there was never any risk to the health and safety of the public or other employees. The applicant has resolutely maintained that he was unaware that Ms Keenan would be bringing the firearm when they arranged to meet on 10 July. However, in assessing whether the applicant’s conduct provided valid reason for dismissal, any proper consideration cannot be confined solely to whether or not he was aware of the presence of the rifle, before it was produced by Ms Keenan in the car park.
[62] It was without contest that the applicant is a highly regarded and experienced sporting shooter, and his association with Ms Keenan was as a tutor and mentor to her. In their discussions regarding Ms Keenan’s request for assistance regarding the accessory for her rifle, it was clear that Ms Keenan had made a purchase at a gun shop in Bexley, and when the arrangements were made to meet, there would have always been a possibility that Ms Keenan would have the rifle in her car. Of course, if the meeting occurred in a coffee shop or other public place, the rifle would be left in the car. However, the prospect that Ms Keenan may have the firearm in her car was something that the applicant should have been conscious of, particularly when he facilitated her entry into the car park.
[63] Consequently, the first questionable aspect of the applicant’s conduct arose from what must represent the clear potential that when he let Ms Keenan into the car park, she may have had the firearm in her car. In such circumstances, allowing Ms Keenan into the car park without first clarifying whether she had the firearm with her, might conceivably represent an error of judgement. However, such an error of judgement would be difficult to translate into serious misconduct, particularly because it would be unreasonable to suggest that the subsequent events, involving a bystander seeing the rifle, then phoning the Police, who then rapidly attended the car park, could have been predicted at the time. Nevertheless, it would seem reasonable that the presence of the rifle would (or should) have logically “crossed the applicant’s mind”.
[64] The applicant’s letter of dismissal was issued by Mr Singh, who provided evidence that he believed that the applicant knew that Ms Keenan would have the rifle with her on 10 July. However, Mr Hudson who conducted the investigation on behalf of the employer, was prepared to give the applicant the benefit of the doubt, and he accepted that the applicant did not have prior knowledge of the presence of the rifle. There are a number of factors which can be identified as providing support for the belief that was adopted by Mr Singh, that is, that the applicant knew that Ms Keenan would be bringing her rifle with her when they arranged to meet on 10 July.
Fix or Fit to the Rifle
[65] The first of these factors has arisen from the particular terminology that Mr Singh recorded in the notes that he took immediately following his discussion with the applicant on Monday, 13 July 2015. Some dispute emerged in the evidence as to the nature of the assistance Ms Keenan required, in terms of whether she required assistance with “fitting”, “fixing” or the “orientation” of the accessory on the firearm. These terms were used interchangeably at different times, and depending upon which term is applied in what context, the suggestion of some certainty for the requirement of the rifle to be present has emerged.
[66] The notes taken by Mr Singh on 13 July 12 recorded that Ms Keenan needed the applicant’s “assistance to fix her rifle” and that: “She found the parts that were necessary and wanted David to see if he could fix this on Friday.” Further, the notes include that: “She parked at the lower basement and took out her rifle from the car to show David the problem to be fixed.” Further, the notes taken by Mr Hudson during the applicant’s interview on 17 July13, also make mention that Ms Keenan didn’t understand how to “fit” the accessory that she had purchased, and that upon producing the rifle, the applicant immediately thought: “…how did you get the part on the gun if you didn’t understand how to get the part on. That was meant to be our conversation at lunch.”
[67] The distinction between fixing and fitting the part to the firearm, and a discussion about the orientation of the part on the firearm, was an issue that the applicant stressed during his cross examination. The applicant asserted that there was an important distinction to be made between fitting the part, or having a discussion about how it would be fitted and orientated, and this distinction established doubt as to whether the firearm was required to accompany the accessory.
[68] However, an examination of the notes of the interviews with the applicant on 13 and 17 July, which represent the most contemporaneous records, suggest that the actual fitting or fixing of the accessory to the rifle, as opposed to just discussion about the accessory, was anticipated.
No Initial Mention of Coffee or Lunch or Ignorance
[69] The second factor which could conceivably support a finding that the applicant was anticipating that Ms Keenan would have her rifle with her on 10 July, involved the applicant’s initial omissions of any mention of relevant important issues.
[70] On the afternoon of Friday, 10 July, the applicant told Mr Singh that the Police had instructed him not to discuss the matter with anyone. The evidence has subsequently established that this was a blatant falsehood. Without any further contact with the Police, but apparently upon the advice of others over the weekend, the applicant decided to offer information to the employer on Monday morning, 13 July.
[71] Strangely however, the meeting notes taken by Mr Singh immediately after the discussion with the applicant on 13 July, do not mention anything of the arrangements with Ms Keenan to have involved a discussion over coffee or lunch, which, by implication, would discount the prospect for the rifle to be present in any open public venue, such as a coffee shop. The first mention of coffee or lunch was not made until the interview on 17 July.
[72] Similarly, one would have reasonably anticipated that if the applicant had been taken completely by surprise when Ms Keenan produced the rifle, such surprise would have been a matter of upmost significance that could have easily been conveyed to Mr Singh either on the afternoon of 10 July, or at the very least, stressed during the discussion that occurred on 13 July.
[73] Coupled with the curious fact that the applicant did not take his wallet with him when he said that he intended to meet Ms Keenan for lunch, much of the evidence supported the prospect that he only subsequently introduced the suggested arrangements for coffee or lunch as a means to support the alleged absence of any prior knowledge that Ms Keenan would have the firearm in her car. Of course, other prospects, such as that the arrangements might have first involved the fitting or fixing of the accessory to the rifle, and then subsequently coffee or lunch, or that a discussion over lunch about the accessory might have then been followed by the actual fitting of the part, cannot be ruled out. However, all of these permutations for the arrangements that may have been made, anticipate the presence of the rifle in Ms Keenan’s car.
Why Bring the Rifle At All
[74] A third factor which supported the prospect that the applicant was aware that Ms Keenan would, in all likelihood, have the rifle in her possession on 10 July, related to the alleged purpose for having the rifle in the car in the first place. Ms Keenan gave evidence that she decided to take the rifle with her on 10 July “because bipod adapters come in various types and sizes and I wanted to be sure I got the right one.” The suggestion was that the rifle was taken to ensure that when purchasing the accessory, the correct part would be identified, logically by ensuring that it could actually be fitted to the rifle.
[75] However, upon questioning of Ms Keenan, it was revealed that the rifle was never taken into the Safari firearm shop, and that according to her evidence, she decided to trust “the guy behind the counter.” 14 Consequently, the purpose for which Ms Keenan said that she took the firearm in the car did not materialise. Unless, of course, it was the applicant and not the sales assistant at the Safari firearm shop who was going to ensure the correct fitting of the accessory.
[76] There was significant contest between the evidence of Ms Keenan, and that of the applicant, regarding whether the accessory was in a plastic bag, or fitted to the rifle at the time that the rifle was produced in the car park at Church Street, Parramatta. Regrettably, I have been unable to confidently make positive observations of the evidence provided by Ms Keenan. She was a witness who was understandably greatly concerned about her role in respect to the applicant’s loss of employment.
[77] However, I have not been impressed by the provision of evidence which can only be described as incomplete and consequently misleading. In paragraph 15 of her statement Ms Keenan said: “Police did not charge me with any offence related to the rifle-as the registered owner of the rifle, I was licensed to possess it and transport it.” Regrettably, Ms Keenan failed to mention that she was charged by Police with an offence relating to the ammunition that was in her car on 10 July 2015.
[78] Consequently, this important, deliberate omission and other aspects of inconsistency and incongruities which can be identified in the evidence provided by Ms Keenan, has established a reluctance for the Commission to accept the veracity of her evidence generally, and in particular, in respect to the stated reason for the presence of the rifle in her car on 10 July.
The Question of Practical Purpose
[79] A fourth factor which was suggestive that the rifle would be present, at some point, when the applicant met with Ms Keenan on 10 July, involved the practical benefit that would be available if it was present, and the absence of practical benefit that would arise without the rifle.
[80] Despite various suggestions that were made by the applicant and Ms Keenan, there would seem to have been very limited practical purpose for the applicant and Ms Keenan to meet over lunch, examine the accessory, and discuss aspects of its orientation on the rifle. Clearly, there was obvious practical utility in having the rifle, the newly purchased accessory, and the internationally renowned expert, together in the one place at the one time, whether that be before or after coffee or lunch.
[81] An examination of the various factors which support the proposition that the applicant knew that Ms Keenan would have the rifle in her possession, has provided a strong foundation for the view that was adopted by Mr Singh. Mr Singh believed that the applicant had engaged in very risky behaviour when he allowed Ms Keenan to drive into the car park, in the knowledge that the firearm was brought onto what was putatively company property.
[82] There was an alternative basis upon which the employer asserted that valid reason for the applicant’s dismissal existed. Although Mr Singh was of the belief that the applicant knew that Ms Keenan would bring the rifle with her on 10 July, Mr Hudson, who conducted the investigation on behalf of the employer into the incident of 10 July, provided the applicant with the concession that he had no knowledge that Ms Keenan would have the rifle with her when he provided her access into the car park. 15 Despite this concession, the employer found that the actions of the applicant constituted misconduct sufficient to warrant summary dismissal.
[83] There were difficulties associated with the evidence of precisely what happened when Ms Keenan removed the rifle from its carry bag. It was clear that at the Hearing, the applicant’s recollection of exactly what he said to Ms Keenan when she produced the rifle conflicted with the details of the events that he provided to the employer, particularly during his interview on 17 July 2015. Significantly, the applicant has provided more recent evidence of a heightened level of alarm, than that which he allegedly demonstrated and which can be extracted from his earlier recollections.
[84] For example, in the applicant’s email of 18 August 16, which responded to the allegations provided in preparation for the 24 August meeting, he stated that he had “no opportunity to disengage with the visitor.” However, during his cross examination the applicant accepted that he had ample opportunity to disengage with Ms Keenan17, and that a couple of minutes passed before the Police arrived while Ms Keenan was “playing” with the rifle.18 Unfortunately, this is not the only example that demonstrated significant inconsistency in the evidence that was provided by the applicant.
[85] Notwithstanding the various difficulties associated with evidence of the detail of the incident on 10 July, on any objective and reasoned assessment, there was ample opportunity for the applicant to have exercised the clear authority and influence that he possessed to require Ms Keenan to immediately return the rifle into its carry bag. The applicant accepted that, as was stated in Mr Hudson’s notes of the meeting of 17 July, he didn’t argue with her. Instead, the applicant engaged with Ms Keenan in discussion and action regarding the accessory and its correct positioning on the rifle.
[86] Therefore, on this alternative basis for dismissal, it was the applicant’s inaction and failure to quickly address the circumstances at a critical point during the incident of July 10, which constituted misconduct. Implicit in such misconduct, based upon the inaction of the applicant, the employer complained that the subsequent ramifications of the Police presence, manifested as breaches of several of its stated policies and procedures.
[87] In this instance, the employer asserted that the applicant’s misconduct was so serious that it justified summary dismissal. At the disciplinary meeting on 24 August, the employer notified the applicant that it had considered his responses to the allegations put to him, as well as the findings made in its investigation into the incident of 10 July. The employer then decided that the applicant’s misconduct warranted summary dismissal.
[88] The employer’s fundamental reason to dismiss the applicant was the alleged misconduct of the applicant which involved him either, permitting Ms Keenan to enter the car park in the knowledge that she had the firearm in her car, or alternatively, allowing her entry to the car park without knowledge of the firearm, but then subsequently not acting with reasonable and timely concern for the circumstances. Neither of these formulations of the alleged misconduct, when properly considered, can be held to have involved a wilful and deliberate attack upon the employment relationship, such as would be necessary to justify a dismissal without notice, as opposed to dismissal with the requisite notice.
[89] Consequently, I do not believe that the finding of serious misconduct relating to the applicant’s conduct on 10 July, justified summary dismissal. Upon careful consideration, the applicant’s conduct was without a demonstrated intention to deliberately and wilfully injure the employer, by engaging in conduct that would be harmful and knowingly damaging to the employment relationship. The applicant engaged in behaviour that was risky by allowing Ms Keenan into the car park. Whatever their understanding of the intention of their meeting was, there was reasonable basis to assume that she would at the very least, be likely to have the rifle in her car.
[90] In addition, the alternative basis for dismissal involving misconduct based on the inaction of the applicant to properly deal with the circumstances that had arisen once Ms Keenan had produced the rifle, could at its highest, represent misconduct that would justify dismissal with notice rather than summary dismissal. It follows that, neither of the propositions upon which the employer found misconduct as the basis for dismissal, could represent valid reason for dismissal without notice. However, when coupled with the further conduct of the applicant following the incident of 10 July, valid reason for dismissal with notice was clearly established.
[91] The employer was entitled to consider that particular conduct of the applicant was fundamentally contrary to, and in breach of the trust and confidence inherent in the employment relationship. As mentioned earlier in this Decision, the applicant was plainly untruthful when he told Mr Singh that the Police had instructed him that he could not talk with anyone about the incident of 10 July. An employer can rightfully require honesty from an employee.
[92] In addition, the applicant’s lack of contrition about any aspect of damage to the employer that may have been caused by the incident of 10 July, and his manifest defiance and antagonism towards the employer’s reasonable requirements to investigate the incident, including in particular, engaging an overtly interventionist support person for the 24 August disciplinary meeting, ensured that the employment relationship was irreparably damaged.
[93] Therefore, on 24 August 2015, the various actions of the applicant provided the employer with valid reason for dismissal with notice as opposed to summary dismissal.
[94] The employer provided both verbal and written notification of the reasons for the applicant's dismissal. Those reasons primarily relate to the misconduct of the applicant associated with the incident of 10 July, but importantly include the breach of trust in the employment relationship which involved both conduct on 10 July and subsequently.
[95] The evidence established that the employer provided the applicant with an opportunity to offer a defence or provide any explanation in response to documented allegations relating to the incident of 10 July. Unfortunately the applicant’s approach to the employer’s legitimate inquiries into the incident of 10 July, only compounded the employer’s concerns rather than provide for any acceptable explanations or mitigation.
[96] The employer’s approach was, in general terms, measured and considered up to the point during the break in the disciplinary meeting on 24 August, when a decision was made to summarily dismiss, rather than implement dismissal with notice.
[97] There was no contest that the applicant was offered the assistance of a support person. Indeed, it was unfortunate that, rather than assisting in the process, the excessively interventionist approach adopted by the applicant’s chosen support person, served only to confirm the extent to which the employment relationship had collapsed.
[98] The dismissal of the applicant was not based on any unsatisfactory work performance and therefore this factor is not relevant.
[99] The size of the employer’s operation would not have been likely to have significant impact on procedures surrounding the dismissal of the applicant.
[100] The employer did have dedicated employee relations management specialists who were involved in the investigation into the incident of 10 July, and the subsequent disciplinary process. Unfortunately, despite the involvement of such specialists, an inappropriate decision to dismiss summarily, rather than with notice, was taken.
[101] The length of service of the applicant and his generally good employment record were matters that the employer properly considered as part of its disciplinary process. Upon further examination of the particular circumstances of the applicant, there was no evidence provided about other relevant matters that may have been appropriate aspects of consideration as to whether the dismissal of the applicant was unfair.
[102] In this case, the applicant was summarily dismissed because the employer had formed the view that his actions in connection with the 10 July incident, whereby the Police attended the car park of its business premises in response to a report that there was someone with a gun, represented misconduct that warranted summary dismissal. There were two fundamental propositions which underpinned the employer’s finding of serious misconduct.
[103] One basis for the misconduct was that the applicant allowed a visitor into the car park in the knowledge that a firearm would be present. The other proposition for the applicant’s serious misconduct, assumed that he had no prior knowledge that a firearm would be present, but that his deliberate inaction when his visitor produced the firearm represented misconduct.
[104] On either of the two foundations identified by the employer as serious misconduct, the applicant’s actions did not have the characteristics of an attack upon the employment relationship. The applicant was, upon the highest evidentiary basis available, making a serious error of judgement involving what might be described as a calculated risk. Who would have thought that someone would see the rife and report it to the Police? The applicant’s actions, in either scenario, did not involve a deliberate act of serious misconduct which could justify dismissal without notice.
[105] However, the applicant’s actions, contemplated on the basis of the most generous scenario of the 10 July incident, when coupled with his subsequent actions, has provided unambiguous basis to justify dismissal with notice. No other aspect of the circumstances surrounding the dismissal has operated to alter a finding that the dismissal was unreasonable solely because it was implemented without notice or payment in lieu of notice.
[106] The applicant has sought reinstatement, or alternately, compensation for his unfair dismissal. In all of the circumstances of this case, reinstatement is plainly inappropriate. Compensation of an amount that would remedy the summary nature of the dismissal is the appropriate remedy. The applicant’s letter of offer of employment 19 provided for termination on the basis of four weeks’ notice.
[107] Therefore, I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.
[108] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that have been established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 20, and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 21.
[109] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.
[110] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter, including the factors set out in paragraphs (a) to (g) of subsection 392(2) of the Act.
[111] There was no evidence that an Order of compensation would impact on the viability of the employer’s enterprise.
[112] The applicant had about 12 years of service with the employer. The applicant would have been likely to have received remuneration of approximately $2,154.00 per week if he had not been dismissed. There was clear prospect that the employment of the applicant may have endured for several years.
[113] The applicant has made some efforts to mitigate the loss suffered because of the dismissal. However, at the time of Hearing, the applicant had not secured alternative paid employment.
[114] Thirdly, in this instance there was established misconduct of the applicant which contributed to the employer's decision to dismiss.
[115] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.
[116] There are no other relevant matters in this instance.
[117] Consequently for the reasons outlined above, I have decided that an amount approximating with four weeks remuneration should be Ordered as compensation to the applicant. That amount is $8,616.00. Accordingly, separate Orders [PR578862] providing for remedy in these terms will be issued.
COMMISSIONER
Appearances:
Mr D Waters appeared for himself.
Mr J McKenna of Counsel appeared for Goodyear Australia Pty Limited.
Hearing details:
2015.
Sydney:
December 10 & 11.
1 Exhibit 6.
2 Transcript PN 521.
3 Transcript PN 510.
4 Exhibit 7 - Attachment “TH-1”.
5 Transcript PN 529.
6 Transcript PN 859, 860.
7 Exhibit 8 - Attachment “AS-9”.
8 Exhibit 7 - Attachment “TH-1”.
9 Exhibit 7 - Attachment “TH-7”.
10 Exhibit 1.
11 Exhibit 6.
12 Exhibit 8 - Attachment “AS-9”.
13 Exhibit 7 - Attachment “TH-1”.
14 Transcript PN 1078.
15 See transcript PN 1226, PN 1333 and PN 1335.
16 Exhibit 7 - Attachment “TH-9”.
17 See, in particular, transcript PN 623, and PN 624.
18 See transcript PN 634.
19 Exhibit 8 - Attachment “AS-1”.
20 Sprigg v Paul’s Licensed Festival Supermarket, (1998) 88IR 21.
21 Smith and Ors v Moore Paragon Australia Ltd, (2004) PR942856.
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<Price code C, PR578514>