| [2016] FWC 4954 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gerard Roelofs
v
Auto Classic (WA) Pty Ltd T/A Westcoast BMW
(U2015/10082)
COMMISSIONER WILLIAMS |
PERTH, 25 JULY 2016 |
Termination of employment.
[1] This decision concerns an application for an unfair dismissal remedy made under section 394 of the Fair Work Act 2009 (the Act) by Mr Gerard Roelofs (Mr Roelofs or the applicant). The respondent is Auto Classic (WA) Pty Ltd T/A Westcoast BMW (Westcoast BMW or the respondent).
[2] At the hearing of this matter evidence was given by Mr Roelofs and for the respondent by Mr Darrin Brandon (Mr Brandon) who was the Dealer Principal of Westcoast BMW at the relevant time, Ms Jennifer Jeffrey (Ms Jeffrey) the Accounts Coordinator at Westcoast BMW at the relevant time and by Mr Daniel Stewart (Mr Stewart) the Group Financial Controller of Regent Motors Pty Ltd which acquired control of Westcoast BMW after the relevant events.
[3] Having considered the evidence of the witnesses in this matter I make the following findings.
[4] Mr Roelofs began working for Westcoast BMW in 2005. At the time of his dismissal he was Westcoast BMW’s Financial Controller working at the company’s office in Wangara.
Mr Roelofs was dismissed without notice on 27 July 2015.
[5] Mr Brandon was the Dealer Principal for Westcoast BMW but he worked primarily from the Burswood office.
[6] New employees of Westcoast BMW are provided a copy of a Policy and Procedures Manual. Mr Roelofs signed a copy of this document, which was provided to him in August 2005, confirming he accepted the conditions and policies of employment as presented in the document and agreed to abide by them.
[7] The Policy and Procedures Manual includes a section on “Internet, intranet and email use”.
[8] This policy provides relevantly that:
“the employee will be responsible for all access to and use of the Internet Service through their account.”
[9] It provides as follows:
“ You will not use the service to store or distribute commercial software, nor will you use the service to store or distribute any pornography or any other material which may be objectionable, offensive or illegal any way.
…
Under the antidiscrimination and harassment policies outlined by the Commissioner of Equal Opportunity it is an offence (sic) use any form of electronic communication to harass any member of staff including email, Internet, intranet, file transfers, telephone, letters or facsimile. Auto Classic staff may not distribute any material that can be construed as sexist, offensive or racist to their colleagues in the workplace. These systems are the property of Auto Classic and any abuse of these communications will result in disciplinary action and may lead to termination of employment depending upon the seriousness of the offence. ”
[10] Mr Roelofs accepts he read the Policy and Procedures Manual and signed it when he commenced his employment and was familiar with the policies therein.
[11] Mr Brandon had worked with Mr Roelofs for a long time.
[12] Mr Roelofs had unlimited internet access.
[13] Mr Brandon characterised his experience working with Mr Roelofs as fantastic. Mr Roelofs was capable, process driven and worked in a professional manner.
[14] Mr Roelofs worked on the first floor above the dealership showroom. His office had transparent glass walls on two sides and the door of his office was adjacent to Ms Jeffrey’s workstation. Ms Jeffrey sitting at her workstation, if she looked up, could see directly into Mr Roelofs’ office and the back of his computer screen.
[15] Mr Roelofs was Ms Jeffrey’s direct manager and they worked directly with each other each day. Ms Jeffrey would regularly go into Mr Roelofs’ office to do filing. They were the only two employees whose offices were located on the first floor of the dealership. Other staff would come up and down the stairs from time to time for various reasons.
[16] The first few years of Ms Jeffrey working at Westcoast BMW she had a normal working relationship with Mr Roelofs.
[17] Ms Jeffrey’s evidence was that towards the end of 2014 she noticed that when she entered Mr Roelofs’ office he would sometimes quickly click his computer mouse to apparently remove what he was viewing on his computer from the screen.
[18] In early January 2015 Ms Jeffrey went into Mr Roelofs’ office to do some filing. He was not at his desk at the time but came in and sat down on his computer while she was still in his office. As he opened up his computer screen an image could be seen of a naked woman sitting on a bed, apparently on a webcam. Ms Jeffrey’s evidence was it was a very explicit image. Mr Roelofs quickly tried to minimise the webpage. Ms Jeffrey’s pretended she had not seen anything. Nothing was said by either Ms Jeffrey or Mr Roelofs.
[19] Ms Jeffrey considered the image pornographic.
[20] A similar incident happened a few weeks later.
[21] Mr Roelofs’ evidence was that he has no recollection of the two instances Ms Jeffrey gave evidence about where she had seen images she viewed as pornographic on his computer screen.
[22] Ms Jeffrey said she was disturbed by both incidents and from then on felt vulnerable and uncomfortable having to work so closely with Mr Roelofs with no one else in the vicinity.
[23] She felt she needed to tell someone about what she had seen. Given Mr Roelofs was her manager she was concerned she may not be believed if she were to report the events to her superiors without some evidence. Consequently in February 2015 when Mr Roelofs was at lunch she began taking photographs with her phone of his internet browser history. Her evidence was his computer was not locked and she did not look at anything other than this. Ms Jeffrey took such photos of Mr Roelofs’ internet browser history on seven different days; being 5, 11, 12, 16, 17, 18 and 19 February 2015.
[24] After this Ms Jeffrey spoke to Mr Stuart MacKay (Mr MacKay) the General Manager of Westcoast BMW and showed him the pictures she had taken. He said he would speak to Mr Brandon about it.
[25] The next day she also met with Mr Danny Ross (Mr Ross) who has some limited human resources role with the respondent and discussed the matter, explaining she was experiencing anxiety and headaches and could not do her job properly.
[26] Consequently a meeting was arranged for her to meet with Mr Brandon and Mr Ross on 23 February 2015. At the meeting she explained what had been occurring. She told them she began to check Mr Roelofs’ internet history and take photographs on her phone which she gave to Mr Brandon.
[27] Consequently Mr Brandon arranged for IT staff to review Mr Roelofs’ internet usage.
[28] Ms Jeffrey says Mr Ross called her the next day, 24 February 2015, and told her that they had pulled up the internet history of Mr Roelofs’ computer for the month of January 2015 and the history showed 33 instances of accessing pornographic material.
[29] On 25 February 2015 Mr Brandon, accompanied by Mr Ross, met with Mr Roelofs. Mr Brandon explained to Mr Roelofs why they were meeting and told him their records showed that he had been misusing the internet service to view pornographic material whilst at work. Mr Brandon asked Mr Roelofs if this was the case.
[30] Mr Roelofs’ evidence which I accept is that he admitted he had been viewing pornographic websites. He then told Mr Brandon that he would not do it again and gave him his word that would never happen again.
[31] Mr Brandon told him that he was aware of and must have understood the company manual on internet use and that he would issue him with a first and final warning and that any further breaches of the policies and the manual would result in termination. Mr Brandon also told Mr Roelofs he would be restricting his internet access.
[32] Mr Brandon did issue a first and final written warning 1 dated 25 February 2015. The document says the warning was issued for “Misuse of the Internet service accessing inappropriate sites whilst at work.”
[33] The required actions and behavioural changes are listed as “Cease immediately the misuse of the Internet service.”
[34] Mr Roelofs’ evidence was that he understood the written warning required him not to breach the policy again. 2 The only types of websites mentioned in this meeting were pornographic sites.3
[35] Mr Brandon then rang Ms Jeffrey to tell her he had spoken to Mr Roelofs and given him a written warning and restricted his internet access.
[36] Over the next few months Mr Brandon had a number of telephone conversations with Ms Jeffrey about the matter and she explained she was feeling uncomfortable working so closely with Mr Roelofs.
[37] Ms Jeffrey told Mr Brandon the company had not done enough. Ms Jeffrey told Mr Brandon she was seeing a psychologist and a doctor and was feeling sick at work.
[38] Ms Jeffrey’s evidence was that she was worried that Mr Roelofs may still be looking at inappropriate sites whilst at work. Consequently on 5 June 2005 when Mr Roelofs stepped out of his office she went to his computer to check his internet history and discovered he had been on a website called “Wanderlust, wildly beautiful women in nature.” Ms Jeffrey’s evidence was this website showed women in lingerie and bikinis and see-through tops.
[39] In early June 2015 Mr Brandon had directed the company’s IT staff to again check Mr Roelofs’ internet usage. The staff on 12 June 2015 advised Mr Brandon that the initial investigation showed that there was nothing concerning and that they would download a full report and send it to Mr Brandon.
[40] On 15 June 2016 it became apparent to Ms Jeffrey that Mr Roelofs was receiving copies of her incoming emails. She raised this with Mr Brandon on 16 June 2015 and at this time also told him Mr Roelofs was still accessing inappropriate sites referring to the “Wanderlust, wildly beautiful women in nature” website. Mr Brandon was going on leave but said he would speak to Mr Roelofs on his return.
[41] Mr Brandon’s evidence was that at no time having been made aware of the allegation Mr Roelofs was visiting this site did he look at the site and Mr Roelofs’ alleged access of the “Wanderlust” site was not one of the considerations in his decision to dismiss him. 4
[42] Mr Roelofs’ evidence was that Ms Jeffrey had a couple of times been taking Fridays off or a Monday off as her husband worked away in a FIFO situation. Mr Roelofs around this time had broken his heel and it was difficult for him to get from his desk to her desk as he was on crutches. Consequently he asked the respondent’s IT people to C.C. him in on her emails so that he would not have to be going backwards and forwards to check her emails when she was not there.
[43] On 16 June 2016 Ms Jeffrey whilst in Mr Roelofs’ office to do some filing noticed on his desk calendar that he had recorded the times and durations of phone calls she had made. She took a photo of his calendar recording these notations.
[44] On the 30 June 2015 Mr Brandon, accompanied by Mr McKay, met with Mr Roelofs. He asked Mr Roelofs why he had arranged for Ms Jeffrey’s emails to be forwarded to his email address. Mr Roelofs explained he did this because Ms Jeffrey had been on leave and had then been away sick and he had been on crutches and this allowed him to ensure he did not miss anything. Mr Roelofs acknowledged he had not told Ms Jeffrey he had done this and he did not think that that was necessary.
[45] Mr Brandon also asked Mr Roelofs if he had visited any inappropriate websites since he received the first and final warning. Mr Roelofs advised him that he had not and would not do that. Mr Brandon asked him about a particular website that was a chat site. Mr Roelofs said he knew nothing about it. Mr Brandon advised that they would have the IT people come in and inspect Mr Roelofs’ computer and provide a view on that website.
[46] Mr Brandon arranged for the IT staff to check this matter and discovered that the chat site he had raised with Mr Roelofs was in fact an internal site relating to the company’s own database management system and not in any way an inappropriate site.
[47] On 13 July 2016 Ms Jeffrey, again whilst in Mr Roelofs’ office in his absence, discovered that Mr Roelofs was recording the time she was away from her desk on a notepad. It appeared to her he was recording the times when she would be a way to go to the toilet or have to cover for reception.
[48] Mr Roelofs’ evidence as to why he was taking note of what Ms Jeffrey was doing was that he had been asked by the General Manager Mr McKay to monitor Ms Jeffrey’s day-to-day activities because she was spending a great deal of time away from her desk and was often down on the showroom floor with salespeople and aftermarket people spending 20 minutes at a time talking with them. The General Manager had asked him to monitor the time she spent away from the desk to keep track of her. As there is no evidence to contradict this I accept Mr Roelofs’ evidence on this.
[49] Ms Jeffrey became upset by the knowledge that Mr Roelofs was recording the time she was away from her desk and this caused her to make a formal complaint in writing on 21 July 2015.
[50] Whilst Mr Brandon took seriously Ms Jeffrey’s concerns about apparent intrusions by Mr Roelofs on her privacy in that both her complaint that Mr Roelofs, her manager, was being copied in on emails she received and was keeping track of her whereabouts were of concern to Mr Brandon, he expressed no concern for the fact that Ms Jeffrey repeatedly impinged on Mr Roelofs’ privacy by secretly accessing his computer to examine and record his internet usage and separately took photos of his notepads and desk calendar.
[51] The letter of complaint about Mr Roelofs stated Ms Jeffrey had been the victim of sexual harassment, bullying and stalking.
[52] The letter referred to the two occasions Ms Jeffrey had seen pornographic images on Mr Roelofs’ computer and the photographs she had taken of his internet browsing history.
[53] The letter complained about Mr Roelofs monitoring her emails.
[54] The letter complained about Mr Roelofs monitoring her activity at work.
[55] The letter in detail complained that Ms Jeffrey had not been supported by the respondent, that Mr Roelofs’ actions were disgusting and were affecting her life and it needs to stop immediately.
[56] Under cross-examination Ms Jeffrey’s evidence is that other than the two occasions when she saw pornographic images on Mr Roelofs’ computer he has never exposed her to anything that was otherwise pornographic or offensive. She agrees he has never made any sexual advances towards her. She agrees Mr Roelofs has never threatened her in any way. She agrees Mr Roelofs never used any suggestive language or told lewd jokes to her. She agrees Mr Roelofs never made any kind of inappropriate approaches to her.
[57] Ms Jeffrey agrees that Mr Roelofs was thoroughly professional in his dealings with her.
[58] Mr Brandon’s evidence is that having received Ms Jeffrey’s formal complaint letter on Friday, 24 July 2015 he sought advice as to what to do next.
[59] Mr Brandon directed his IT staff to look at the website “Wanderlust, wildly beautiful women in nature” and to again examine Mr Roelofs’ internet usage. He says a full report was obtained of Mr Roelofs’ internet history. The report provided in Mr Brandon’s evidence was produced on 12 June 2015 and is for the period 1 June 2015 to 12 June 2015.
[60] Mr Brandon’s conclusion having reviewed this 12 June report was that it appeared Mr Roelofs had “...gone from looking at pornography to looking at lifestyle type stuff with women with little clothing on because he could no longer access pornography.” 5
[61] Mr Brandon viewed the problem as Mr Roelofs obviously wasting company time and that it was completely inappropriate to be looking at images like that after being given a final warning where it had been made clear by Mr Brandon to Mr Roelofs that he was not to do that sort of thing again. Mr Brandon believed he had grounds to dismiss Mr Roelofs for breaching the company policy and procedures set out in the manual.
[62] Mr Brandon’s evidence is that on Monday, 27 July 2015 he arranged to meet Mr Roelofs and Mr McKay was also present. In the meeting he told Mr Roelofs that he had again contravened the Policy and Procedures Manual for which he had previously received a first and final warning and that his employment was being dismissed for serious misconduct. Mr Roelofs was told if he wanted to respond he could. He was handed a termination form which identifies the reason for termination as serious misconduct but contains no other detail of the reasons for termination.
[63] Mr Roelofs’ evidence about the meeting was that it occurred at 3.00 p.m. Mr Brandon and Mr McKay came to see him unexpectedly and he had no idea what they wanted to see him about. They told him that they had received a formal complaint from one of Westcoast BMW’s employees and that the substance of the complaint was that he had accessed pornographic material and was to be dismissed there and then. Mr Brandon had a bundle of printouts from the IT staff which was pages of websites, there were no pictures of any kind, and the bundle of printouts was not given to Mr Roelofs. Mr Brandon asked him to respond and Mr Roelofs said “I’ve been set up” and said he was shocked.
[64] Mr Brandon passed him a copy of the termination form which just said serious misconduct and nothing else and asked him to sign it.
[65] Mr Roelofs accepts Mr Brandon may have said that he had contravened the Policy and Procedures Manual. Mr Brandon did not ask him about any particular sites that he was alleged to have accessed on the internet.
[66] Mr Brandon agrees with the evidence of Mr Roelofs that he came to see him in his office, he had no appointment and Mr Roelofs was not expecting him.
[67] Under cross-examination Mr Brandon said the websites which breached the Policy and Procedures Manual that led to the dismissal where the “Lifestyle” sites that involved girls in bikinis. Mr Brandon never asked Mr Roelofs why he was accessing these sites. 6 The fact that he accessed these sites was the basis for Mr Brandon’s decision to dismiss Mr Roelofs.7
[68] Mr Brandon’s evidence was that employees should not be using the internet service provided by the employer to look at images, whether pornographic or non-pornographic, of women. 8
[69] Mr Brandon at no time asked Mr Roelofs whether he had accessed this particular site. He did not ask him whether there was any explanation for accessing these sites and merely told him that he had accessed inappropriate websites but not what those websites were.
[70] Mr Brandon accepts that all Mr Roelofs knew was that he was being dismissed for allegedly accessing unspecified websites and had no opportunity to know what these websites were or to explain his alleged actions. 9
[71] Mr Brandon accepts the concern was not that Mr Roelofs was wasting company time. 10
[72] Mr Brandon’s evidence was that he made the decision to dismiss Mr Roelofs before he had spoken to him and before he had asked whether there might be some innocent explanation for why these websites appeared on the printout. 11
[73] The printout of Mr Roelofs’ internet usage history for the first 12 days of June on which Mr Brandon relies has all of the websites visited grouped into the following categories ‘business and economy’, ‘chat’, ‘commercial banks’, ‘entertainment’, ‘fashion and beauty’, ‘finance’, ‘government’, ‘hobbies and recreation’, ‘information technology’, ‘society and culture’, ‘sports’, ‘travel’, ‘food’ and finally ‘immigration news and media’.
[74] Mr Brandon based his decision to dismiss on his belief that Mr Roelofs had accessed websites categorised and grouped as ‘fashion and beauty’. An example of which Mr Brandon says is Exhibit R4; which is five pages of women in swimsuits.
[75] At page 91 of Mr Brandon’s statement the group of websites categorised as ‘fashion and beauty’ are listed. Adjacent to each of those is the time and date on which the individual website was accessed. This information on the company’s printout shows that all of these sites were visited on 5 June 2015 between the hours of 12:37:18 and 12:41:37.
[76] All of the websites on Mr Roelofs’ internet browsing history on which Mr Brandon based the decision to dismiss Mr Roelofs were accessed on one day over a period of less than five minutes.
[77] Mr Roelofs’ evidence was that early in June 2015 his computer had a virus. He contacted the respondent’s IT staff by phone and they remotely accessed his computer. The lady he was speaking to on the phone told him he may as well take a walk because she would be there for a couple of hours. His evidence was that this was not the first of the respondent’s computers to be attacked by a virus. The virus on his computer randomly opened different internet pages.
[78] When challenged under cross-examination as to whether this evidence was a fabrication Mr Roelofs responded that it was true and the respondent could check with their IT people that this had occurred.
[79] Mr Brandon’s evidence was that they have sophisticated antivirus software but that if a virus had avoided detection it would have been reported to the IT department but not to him.
[80] Mr Brandon’s evidence was that if the company’s IT staff had been required to remove a virus from Mr Roelofs’ computer in early June 2005, as he says occurred, this would not have been reported to him and he has no way of knowing whether Mr Roelofs’ evidence on this is true or not.
[81] At the final meeting where Mr Roelofs was dismissed he did not mention anything about a virus having infected his computer earlier in June 2015. The context however is that he was ambushed at that meeting and was not provided with the detail of what he was supposed to have done.
[82] Considering all this evidence I accept the evidence of Mr Roelofs as to the fact that his computer was infected with a virus in early June 2015 and that one of the symptoms of the virus was that it randomly opened different internet pages.
[83] Only after his dismissal did Mr Roelofs became aware that he was accused of accessing the “Wanderlust, wildly beautiful women in nature” website. Mr Roelofs denies having ever visited that site.
[84] Mr Roelofs was asked in cross-examination whether he had accessed another website whilst at work identified as “The best of the years new swimsuit styles”. Mr Roelofs was shown hard copies of five pages from that website which shows a series of images of women in various styles of ordinary two-piece and one-piece swimsuits. 12 Mr Roelofs denies having ever accessed that website. This was the site on which Mr Brandon based his decision to dismiss Mr Roelofs.
[85] Under cross-examination Mr Roelofs denied having accessed any fashion websites.
[86] These websites which Mr Roelofs denies having accessed can be identified on the printout of his computers internet browsing history attached as part of Mr Brandon’s witness statement which is for the period 1 June to 12 June 2015. 13
[87] Mr Roelofs was first provided with a copy of this printout of his internet browsing history after the conciliation conference in this Commission having made this application.
[88] Mr Roelofs’ evidence was that it was only in the last two weeks of his employment (approximately 13 to 27 July 2015) that he had used a screensaver password to access his computer when it was idle and he was logged on. His evidence was that Ms Jeffrey knew this password.
[89] Ms Jeffrey as part of her role had access to Mr Roelofs’ computer to perform weekly creditors downloads. These could only be accessed from Mr Roelofs’ computer. Ms Jeffrey was aware of his computer password so that she was able to do this.
[90] A critical factual issue that the Commission must determine is whether or not Mr Roelofs did in early June 2015 access the website showing women in swimsuits 14 on which Mr Brandon based his decision to dismiss.
[91] Mr Roelofs denies having accessed the swimsuit website.
[92] It is not disputed and I accept that the website history from Mr Roelofs’ computer shows the swimsuit website was accessed for a little less than five minutes on 5 June 2015.
[93] Mr Roelofs says that around this date after initially logging onto his computer access to his computer was not password protected during the day. The evidence is that at times his office was unattended and other staff on occasions, but not often, come to the first floor where his office is located. His office was not locked.
[94] The evidence is that Ms Jeffrey regularly accessed Mr Roelofs’ computer in his absence without his knowledge.
[95] Consequently I accept it is possible that some other person used Mr Roelofs’ computer on 5 June 2015 around 12:37 p.m. and at that time accessed the swimsuit website without his knowledge.
[96] Considering this possibility there is no particular reason why any other staff member would use his computer and this would require Ms Jeffrey to also be absent at the same time Mr Roelofs was, or to have turned a blind eye to someone using his computer.
[97] The possibility that Ms Jeffrey may have used Mr Roelofs’ computer to access the swimsuit website is supported by the fact that on her own evidence she did access Mr Roelofs’ computer on 5 June 2015 to check his internet history. 15 However the particular website that she brought to Mr Brandon’s attention following this access of Mr Roelofs’ computer, first in conversation on 16 June 2015 with Mr Brandon and again in her written complaint in July 2015, was the “Wanderlust” website, not the swimsuit website. This does not suggest that Ms Jeffrey was responsible for accessing the swimsuit website on Mr Roelofs’ computer.
[98] In my view there is not sufficient evidence to conclude, on the balance of probabilities, that some other person used Mr Roelofs’ computer on 5 June 2015 to access the swimsuit website.
[99] Mr Roelofs also gave evidence that his computer was attacked by a virus in early June 2015 which randomly opened website pages. There is nothing to contradict Mr Roelofs’ evidence that this occurred.
[100] The question however is accepting Mr Roelofs’ computer was infected, at some point in June 2015, with a virus does that explain the presence of the swimsuit websites in his computers internet history for 5 June 2015?
[101] Mr Roelofs was not precise about what date the virus was active in his computer, consequently it is uncertain whether the problem had been resolved before 5 June 2015 or whether the virus was still active on his computer on this date. Even if it is assumed that the virus was active in his computer on 5 June 2015 there is no evidence to support a factual finding that it was the virus which was responsible for opening the swimsuit website.
[102] In my view there is not sufficient evidence to conclude on the balance of probabilities that the record on Mr Roelofs’ computer of the swimsuit website having been accessed on 5 June 2015 was a consequence of a computer virus.
[103] On the evidence before me my conclusion on the balance of probabilities is that Mr Roelofs was himself responsible for accessing the swimsuit website on 5 June 2015 as was recorded in his computers internet history.
[104] It is submitted this is a case in which a long serving employee was callously dismissed in circumstances where Westcoast BMW did not even investigate the concerns it had about him or explain to him at the time of dismissal why the respondent was dismissing him.
[105] It may be that Westcoast BMW’s brutal approach to Mr Roelofs was in response to the strident representations made by Ms Jeffrey to the effect that she could not work with Mr Roelofs and was considering seeking medical help for stress and contemplating a sexual harassment complaint.
[106] The evidence however including Ms Jeffrey’s own evidence is that Mr Roelofs never in any way behaved inappropriately towards her or behaved in any other way than a professional manner towards her.
[107] Four months before he was dismissed Mr Roelofs was warned for having accessed pornographic images on his computer. He accepted his wrongdoing and took responsibility for it.
[108] The respondent blocked Mr Roelofs from being able to access to pornographic websites thereafter but did not restrict access to sites that may not be work related.
[109] Ms Jeffrey repeatedly covertly accessed Mr Roelofs’ computer and took photographs of his browser history.
[110] Ms Jeffrey made a number of complaints to the respondent. The last one was on 21 July 2015. She made a written complaint where she accused the applicant of sexually harassing her, bullying her, stalking her by monitoring her emails and monitoring her movements.
[111] The respondent’s decision-maker Mr Brandon did not investigate the substance of these complaints.
[112] Ultimately Mr Brandon in response to this complaint decided to dismiss the applicant on the basis of a site identified in the record of Mr Roelofs’ internet browsing history for the period 1 to 12 June 2015. Mr Brandon considered this a further breach of the respondent’s Policy and Procedures Manual regarding internet use by Mr Roelofs. Mr Brandon’s evidence is he reached the decision to dismiss Mr Roelofs without speaking to him about Mr Brandon’s concerns.
[113] It is submitted that contrary to Mr Brandon’s conclusion Mr Roelofs, subsequent to the warning in early February 2015 he received, did not store or distribute any pornographic, offensive, objectionable or illegal material or distribute any material that was sexist, offensive or racist to any colleague. He had no time since February 2015 been in breach of the Policy and Procedures Manual.
[114] It is submitted there was no valid reason to dismiss the applicant because he did not access the sites Mr Brandon accused him of.
[115] The respondent was obliged to give Mr Roelofs an opportunity to respond to the matters for which he was dismissed but did not. Mr Roelofs was never notified of the detailed reason for his dismissal before he was dismissed or even at the time he was dismissed.
[116] The respondent also ignored or otherwise failed to take into account Mr Roelofs’ length of service when deciding to dismiss him.
[117] In February 2015 Mr Roelofs failed to comply with the respondent’s Policy and Procedures Manual in particular the section dealing with internet use. Mr Roelofs admitted to viewing pornographic material on his work computer. The respondent could have terminated Mr Roelofs’ employment for his actions at that point but took into account his long service with the respondent and instead chose to issue him a first and final warning.
[118] On 24 July 2015 Westcoast BMW received a complaint from Ms Jeffrey who provided evidence that she believed Mr Roelofs was still accessing inappropriate websites.
[119] The respondent investigated and concluded the applicant had again accessed inappropriate websites at work and so had breached the Policy and Procedures Manual.
[120] The offending websites Mr Roelofs had accessed contain images of women in swimsuits which Mr Brandon believed were inappropriate for the applicant to be viewing at work.
[121] It is improbable for the applicant to contend that he never visited these websites. The applicant’s internet browser history showed the applicant had been on these websites.
[122] The applicant accepts that he did view other websites which are contained within his internet browser history.
[123] The applicant’s contention that his computer was subject to a virus in early June 2015 was never mentioned by the applicant during discussions about his internet use when he was being dismissed.
[124] The applicant has not mentioned this virus on his computer in his witness statement.
[125] It is submitted Mr Roelofs’ contention that he did not view the inappropriate websites contained in his internet browser history is not plausible in the circumstances.
[126] In considering whether the material on the websites the applicant was viewing was inappropriate it is a matter for the respondent to determine what it considers is appropriate, on a reasonable basis.
[127] It is for the respondent to determine through its policies what is inappropriate in its workplace.
[128] Consequently Mr Brandon’s assessment that given the context was that the applicant had previously received the first and final warning for accessing inappropriate websites for the applicant to then access websites displaying images of women in swimsuits was also inappropriate.
[129] The evidence is that the concerns Ms Jeffrey raised in her July 2015 written complaint which mentioned the “Wanderlust” website was not considered by Mr Brandon who relied entirely on his own investigations to conclude Mr Roelofs had breached the Policy and Procedures manual for a second time by viewing inappropriate websites at work.
[130] It is submitted by the respondent that it was made clear to Mr Roelofs at the dismissal meeting on 27 July 2015 that his reoffending by breaching the respondent’s Policy and Procedures Manual by continuing to view inappropriate websites at work was the reason for his dismissal.
[131] The applicant then had an opportunity to respond but did not exercise his right at the time.
[132] At this meeting Mr Roelofs never mentioned a virus on his computer.
[133] The applicant was in a managerial position of trust and was expected to set an example and would have known better than to engage in inappropriate conduct at work. He had been given a second chance when he received the first and final warning in early 2015 and understood that a further breach of the Policy and Procedures Manual may lead to dismissal. The applicant contravened the Policy and Procedures Manual a second time and in all the circumstances the respondent’s decision to dismiss him was there and reasonable. Mr Roelofs was not unfairly dismissed.
[134] The criteria the Commission is required to have consideration for our prescribed in section 387 of the Act which is set out below.
“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.”
[135] The evidence is that Mr Brandon was the decision-maker for the respondent.
[136] His evidence is that, in the context of having previously given Mr Roelofs a first and final warning earlier in 2015 for accessing inappropriate websites on the respondent’s computers, he decided to dismiss Mr Roelofs after he discovered that the website history of his computer showed in early June that he had accessed a website showing women in swimsuits (the swimsuit website). 16
[137] Mr Brandon did not investigate or enquire into the “Wanderlust” website that Ms Jeffrey had mentioned in her written complaint in July 2015. Mr Brandon has never viewed this website and whether Mr Roelofs ever accessed this website was not a consideration in Mr Brandon’s decision to dismiss Mr Roelofs. 17
[138] On the evidence presented at this hearing I have found that, notwithstanding other possibilities, on the balance of probability Mr Roelofs did himself access the swimsuit website on his computer on 5 June 2015.
[139] On 5 June 2015 Mr Roelofs used the respondent’s computer to access the swimsuit website.
[140] This action was arguably contrary to the requirements upon Mr Roelofs contained in the Westcoast BMW Policy and Procedures Manual with respect to internet use.
[141] More importantly Mr Roelofs had received a first and final warning on 25 February 2015 for reasons of misusing the internet; specifically having accessed inappropriate websites at work. That written warning specified he was required to immediately cease misuse of the respondent’s internet service. He was fully aware that any further misuse could result in his dismissal. Mr Brandon determined that accessing the swimsuit website was further misuse of the internet service contrary to the requirements of the first and final warning and for those reasons I accept there was a valid reason for Mr Roelofs’ dismissal.
[142] Mr Brandon had decided to dismiss Mr Roelofs before he had notified him of the reason he was considering dismissing him for. Mr Brandon made the decision to dismiss Mr Roelofs before he had even spoken to him about the reasons for which he was to be dismissed. 18
[143] At the dismissal meeting he told Mr Roelofs there had been a complaint from an employee, that Mr Roelofs had contravened the company policy; that he had gone against his promise to not access inappropriate websites and so he was now dismissing him. 19
[144] Mr Brandon did not tell Mr Roelofs what the inappropriate website was or what its content was.
[145] Mr Roelofs was not notified of the specific reason he was to be dismissed, even at the time he was dismissed.
[146] On the day Mr Brandon met with Mr Roelofs and told him he was dismissed Mr Roelofs was not expecting to meet with Mr Brandon. Mr Brandon came unannounced to Mr Roelofs’ office. Mr Roelofs had no knowledge of what the meeting was to be about.
[147] After telling Mr Roelofs he was to be dismissed Mr Brandon did not ask Mr Roelofs whether he had accessed the swimsuit website. Mr Brandon did not ask Mr Roelofs if he had any explanation for what he was accused of having done.
[148] Because Mr Brandon did not tell Mr Roelofs which website he was alleged to have accessed, or even what the general nature of that website was Mr Roelofs did not know the specific reason he was being dismissed. Mr Brandon did not give Mr Roelofs any opportunity to respond to the reason he was being dismissed.
[149] There was no unreasonable refusal by Mr Brandon to allow Mr Roelofs to have a support person present to assist during the discussions relating to his dismissal.
[150] Mr Roelofs had no practical opportunity to request to have a support person present because Mr Brandon had ambushed Mr Roelofs who was unaware of what the subject matter of the meeting was before it began.
[151] Mr Roelofs was not dismissed because of any dissatisfaction with his performance so this criteria is not relevant in this case.
[152] The respondent is a medium to large employer but apparently has no dedicated HR management specialists. As such the absence of dedicated HR management specialist is a business decision the respondent has made. This is not a case of it being such a small employer the cost of carrying such specialist skills in house would be prohibitive.
[153] The respondent is of sufficient size that it should be expected to follow proper procedure when effecting an employee’s dismissal which it did not in this case.
[154] The absence of dedicated human resource specialists or expertise may explain the multiple failures to follow proper procedure in effecting Mr Roelofs’ dismissal however this is a business choice for Westcoast BMW that does not excuse the deficient procedure.
[155] Mr Roelofs had been employed for over 10 years and prior to February 2015 had an unblemished record. Whilst that would normally count in his favour in terms of assessing whether the dismissal was harsh I accept the view of the respondent in this instance that Mr Roelofs had already been given credit for that length of service when the decision in February 2015 was made to give him a first and final warning rather than dismiss him.
[156] Mr Brandon’s handling of the matters Ms Jeffrey brought to his attention during the first half of 2015 has been surprising and deficient in a number of ways relevant to this decision.
[157] When Ms Jeffrey first raised her concerns about Mr Roelofs’ internet use in February 2015 with him she told him that she had begun to access Mr Roelofs’ computer when he was away from his desk generally at lunchtime and took pictures of his internet history. 20 Whilst in the context of what Ms Jeffrey was then concerned about her unauthorised accessing of Mr Roelofs’ computer to check up on him may have been excusable one would have expected that Mr Brandon to advise her that she should not do this again in future. Ms Jeffrey’s actions were obviously seriously inappropriate particularly so given Mr Roelofs was her manager. Mr Brandon could have reassured Ms Jeffrey that the company could review Mr Roelofs internet history itself should that be appropriate and necessary in the future; she should not be spying on him.
[158] Rather it seems Mr Brandon, knowing over a period of six months that Ms Jeffrey was regularly, secretly accessing Mr Roelofs’ computer never expressed any concern to her about this at all. One of the consequences of allowing Ms Jeffrey to continue to access Mr Roelofs’ computer is that her actions has supported the inference that Ms Jeffrey had been using Mr Roelofs’ computer without his knowledge to incriminate him by accessing inappropriate websites knowing these will be recorded in his computer’s internet history.
[159] Separately whilst Mr Brandon appears to have been sympathetic and concerned about complaints Ms Jeffrey was making to him that Mr Roelofs was receiving copies of her emails and was recording her comings and goings from her desk he displayed no similar concern for the invasion of Mr Roelofs’ privacy by Ms Jeffrey secretly accessing his internet history, taking photos of notes on his desk calendar and taking photos of notes he has made on a pad.
[160] Peculiarly Mr Brandon’s decision to dismiss Mr Roelofs was made without consideration for the details in Ms Jeffrey’s written complaint which he did not investigate, but at the same time seems to have been influenced by the fact that Ms Jeffrey had now decided to make her complaint in writing. 21
[161] Finally my finding was that, on the balance of probabilities, Mr Roelofs did access the swimsuit website on his computer. In making that finding I concluded Mr Roelofs’ suggestion that the virus which did infect his computer in June 2015 would not, on the balance of probabilities, have been responsible for the swimsuit website being included in his computers internet history. This was an important finding that supported the Commission concluding there was a valid reason to dismiss Mr Roelofs.
[162] It should be noted that if Mr Brandon had provided Mr Roelofs with procedural fairness he would have advised him why he was considering dismissing him, given him a copy of the relevant internet history and explained it was the presence of the swimsuit website which Mr Brandon viewed as inappropriate use warranting dismissal and then allowed Mr Roelofs a period of time to review this and provide any explanation he had. If Mr Brandon had followed such a procedurally fair process and if Mr Roelofs had raised the virus as a possible explanation then Mr Brandon would have had the opportunity to investigate through the respondent’s IT staff whether there was any legitimacy to Mr Roelofs’ explanation or not. Similarly the possibility Mr Roelofs was away from the premises at the relevant time on 5 June 2016 could have been considered. Regrettably this did not occur and the Commission has been required to assess Mr Roelofs’ explanations on the basis of the very limited evidence available.
[163] Whilst in this case there was a valid reason for Mr Roelofs’ dismissal Mr Brandon did not afford Mr Roelofs procedural fairness.
[164] Mr Roelofs was never properly notified of the reason for which he was to be dismissed and certainly was not notified of this reason before the final decision to dismiss had been made.
[165] Separately, but equally as important, Mr Roelofs was not given any real opportunity to respond to the reason for which he was dismissed. At the time he was dismissed he did not know he was being dismissed because he had apparently accessed the swimsuit website on 5 June 2015. Being unaware of the specifics of what he had allegedly done meant he was denied a real opportunity to respond to the actual reason for which he was dismissed.
[166] This denial of procedural fairness by Westcoast BMW was not merely a technical failure which common sense would suggest would not have changed the outcome.
[167] It was only at the hearing of this case that it became known specifically what Mr Brandon believed Mr Roelofs had done, accessing the swimsuit website, which resulted in his dismissal. Had Mr Roelofs been notified of these specifics before a final decision to dismiss had been made he would have had a proper opportunity to respond. Mr Roelofs would then have known the date and time on which he was alleged to have accessed the swimsuit website. With this information he could then consider whether he had in fact been present in his office on that date at that time. If Mr Roelofs had been able to prove to Mr Brandon that on that date at that time he had not been in his office, for example attending a business meeting at some other location, this would have meant he had not accessed the swimsuit website on which Mr Brandon had relied to dismiss him. Similarly if Mr Roelofs had been given a proper opportunity to respond after being advised of the specifics of Mr Brandon’s concerns he would have had the opportunity to raise the issue of the virus on his computer which could have been investigated by the respondent’s IT staff. Then a fully informed decision could have been made by Mr Brandon as to whether this might be, or might not be, the explanation for the swimsuit website appearing in Mr Roelofs’ internet history. This proper opportunity to respond should have been provided to Mr Roelofs but it was not.
[168] Mr Roelofs was denied procedural fairness which possibly could have changed the final decision. As a consequence I am satisfied that the dismissal of Mr Roelofs was unjust.
[169] Mr Roelofs’ dismissal was unfair.
[170] The relevant sections of the Act dealing with when the Commission may order a remedy for unfair dismissal and what that might be are set out below.
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[171] Mr Roelofs was dismissed on 27 July 2015.
[172] The evidence of Mr Stewart is that through a share sale Regent Motors Pty Ltd acquired control of Auto Classic (WA) Pty Ltd on 4 August 2015, shortly after Mr Roelofs’ dismissal.
[173] Mr Stuart’s evidence was that Mr Roelofs has not been replaced. A single Financial Controller is now responsible for two dealerships, being Westcoast BMW and Victoria Park BMW and there has been no consideration given to replacing Mr Roelofs.
[174] The evidence is that if Mr Roelofs had not been dismissed the new owners would have made a decision as to whether he was a candidate for redundancy or could be redeployed elsewhere. Mr Stuart’s estimate is this issue would have been resolved probably within three months of their takeover.
[175] It is submitted on behalf of Westcoast BMW that Mr Roelofs’ position no longer exists and so he could not be reinstated to that position.
[176] I accept the facts support this submission and consequently I am satisfied that reinstatement of Mr Roelofs is not appropriate.
[177] I do however consider that an order for payment of compensation in lieu of reinstatement is appropriate in all the circumstances here.
[178] There is no suggestion that an order of compensation if made would damage the viability of the respondent’s enterprise.
[179] Mr Roelofs had been employed by the respondent for a few days short of 10 years.
[180] Mr Roelofs’ annual remuneration in his previous position was $129,404.59 or $10,783.72 per month.
[181] It is for the Commission to determine how long Mr Roelofs would have been likely to remain in employment had he not been dismissed when he was.
[182] If Mr Roelofs had not been dismissed and the respondent provided Mr Roelofs with the proper opportunity to respond to the reasons for which they were considering dismissing him a period of no more than two weeks would have been required for this process to have been completed fairly. At the end of those two weeks, having considered Mr Roelofs’ response and conducted whatever further investigations were necessary, the respondent may or may not then have dismissed him.
[183] Considering Mr Stuart’s evidence if Mr Roelofs had not been dismissed then the new owners would have made a decision to either redeploy him somewhere else in their operations or make him redundant. Which of those would have occurred is unknown. Based on Mr Stuart’s evidence my assessment is that that Mr Roelofs would have remained in his position at Westcoast BMW for a further three months before that decision was made.
[184] If he had of been redeployed given his length of service with the Respondent, even if the redeployment had been unsatisfactory from his perspective or from the new owners perspective, my estimate is he would have remained in employment for a further six months after the decision to redeploy him had been made.
[185] If Mr Roelofs’ position had been made redundant the minimum severance payment he would have been entitled to would have been that provided for in the National Employment Standards, at section 119 of the Act, which given his service would amount to 12 weeks redundancy pay.
[186] In summary the assessment of the possible outcomes is as follows:
1. Mr Roelofs may still have been dismissed in which case he would have received two weeks’ further salary, or
2. Mr Roelofs may have not been dismissed but then been redeployed in which case allowing for the three months for the new employer to make that decision and the period he would remain in that redeployed position he would have received a further nine months’ salary, or
3. Mr Roelofs may have not been dismissed but later been made redundant in which case allowing for the three months for the new owners to make that decision and considering the severance payments of three months pay, he would have received a further six months’ salary in total.
[187] If Mr Roelofs had not been dismissed the midpoint of the amount he would have earned dependent upon whether he had been redeployed or made redundant is seven and a half months’ salary. If he had been dismissed the outcome would have been starkly different for him and he would only have been paid a further two weeks’ salary. Considering this my assessment of the remuneration Mr Roelofs would have been likely to receive if he had not been dismissed falls between these two extremes and I determine that amount to be the equivalent of four months remuneration. This is an amount of $43,134.88.
[188] Mr Roelofs has actively sought to mitigate his loss and obtained alternative employment on 31 August 2015. His total remuneration for this new employment is $71,175.00 per annum or $5,931.25 per month.
[189] For the four month period after he was dismissed Mr Roelofs therefore earned nothing for one month and then $17,793.75.
[190] The difference between the amount he would have likely earned had he not been dismissed on 27 July 2015 and the amount of remuneration actually earned by him over that four months is $25,341.13.
[191] Section 393(3) of the Act is not applicable in the circumstances of this matter.
[192] Consequently an order for compensation will be issued requiring Westcoast BMW to pay Mr Roelofs $25,341.13 gross within 21 days.
COMMISSIONER
Appearances:
S Heathcote, representative for the applicant.
E Hartley of HWL Ebsworth Lawyers for the respondent.
Hearing details:
2016.
Perth:
March 18.
Final written submissions:
Applicant, 21 April 2016.
Respondent, 7 and 28 April 2016
1 Exhibit R2, Attachment DB-3.
2 Transcript at PN163.
3 Ibid., at PN331 to PN332.
4 Ibid., at PN1175 to PN1186.
5 Exhibit R2 at paragraph 49.
6 Transcript at PN1188 to PN1192.
7 Ibid., at PN1217.
8 Ibid., at PN1006 to PN1008.
9 Ibid., at PN1227.
10 Ibid., at PN1197.
11 Ibid., at PN1209 –to PN1210.
12 Exhibit R4.
13 Exhibit R2, Attachment DB-8.
14 Exhibit R4.
15 Exhibit R1 at paragraph 30.
16 Transcript at PN1008 and Exhibit R4.
17 Transcript at PN1000, PN1159 and PN1180 to PN1182.
18 Ibid., at PN1207 to PN1209.
19 Ibid., at PN1213 to PN1221.
20 Exhibit R2, Attachment DB-2.
21 Transcript at PN1167 to PN1215.
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