[2017] FWC 2174
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Stephen Hayes
v
Murdoch University
(U2016/15324)

DEPUTY PRESIDENT BULL

PERTH, 3 MAY 2017

Application for an unfair dismissal remedy, summary dismissal, serious misconduct, inappropriate use of work email and reputational damage to employer. Dismissal terms of Enterprise Agreement.

[1] Mr Stephen Hayes (the applicant) has filed an unfair dismissal application seeking reinstatement/compensation following the termination of his employment with Murdoch University (the respondent/the University). Mr Hayes’ application alleged unfair termination based on the following grounds:

[2] Leave to represent Mr Hayes as a paid agent was sought and granted to Mr Kivraj Singh, a law graduate employed by Chapman’s Barristers and Solicitors. Mr Jason Raftos of Counsel sought and was granted leave to appear on behalf of Murdoch University. Both representatives satisfied the criteria at s.596(2)(a) of the Fair Work Act 2009 (the Act).

Background

[3] On 9 December 2016, Mr Hayes was provided with a letter of termination of some four pages signed by Michelle Narustrang, the Director of People and Culture Human Resources Office. The letter of termination traverses the history leading up to Mr Hayes’ dismissal, which is said to be based on serious misconduct, and advised was effective immediately. Despite the termination being based on the ground of serious misconduct an ex-gratia payment of four weeks’ pay equivalent to the notice of termination that would otherwise have been required, plus all accrued leave entitlements were paid to Mr Hayes.

[4] Mr Hayes commenced his employment with Murdoch on 6 March 2012, and was employed as an Interactive Producer which required him to create digital assets for the marketing team for promotions and new campaigns and supervise two programmers. 1

[5] On 5 August 2016, Mr Hayes sent an email to a David Kalisch from the Australian Bureau of Statistics (ABS). The email was sent from the Murdoch University email address with the University’s logo and Mr Hayes’ signature.

[6] The email was in the following terms:

[7] On the same day the University received a complaint from the Governance, People and Culture Division at the ABS regarding the email sent by Mr Hayes which stated as follows:

[8] On 10 August 2016 at 8:15am Mr Hayes forwarded a further email from his Murdoch email address to Mr Kalisch copied to the same MP in the following terms:

[9] On the same day at 9:11am both emails were sent by Mr Hayes to four other individuals with the statement:

[10] Mr Hayes received a response from one of the external recipients who stated they agreed with his sentiments but would not have used the language in either email. Mr Hayes responded by commencing with the statement:

[11] As a result of the ABS complaint and further emails sent by Mr Hayes to the ABS and copied to others outside the University, and following an investigation into his conduct, the University concluded that his actions were a breach of the University’s Code of Conduct and policies which constituted serious misconduct warranting summary dismissal.

[12] Mr Hayes had been suspended on full pay since 24 August 2016 until his termination on 9 December 2016. He was provided with an ex gratia payment of 4 weeks’ pay on termination.

Submissions and evidence on behalf Mr Hayes

[13] In support of his application Mr Hayes gave evidence and provided a witness statement. 7 Mr Peter Quinn, who acted as Mr Hayes’ representative during the investigation into the alleged serious misconduct, also gave evidence and provided a witness statement.8

[14] Mr Hayes argues that the University carries the onus to prove that it had the right to terminate Mr Hayes’ employment on the grounds of serious misconduct. Further, being an allegation of misconduct there is a higher onus of proof. 9

[15] It was submitted by Mr Hayes that his sending of the emails to the ABS was unrelated to his employment, other than through his inadvertent use of his Murdoch email. The emails were not deliberately or intentionally written to damage the University’s reputation or to break the essential terms of his contract of employment. It was submitted that at most the emails were negligent, unprofessional and based on poor judgement, but the conduct was not malicious. It was conceded that the language used in the emails was inappropriate however this was not such a serious matter as to prevent Mr Hayes from returning to work at the University. 10

[16] It was submitted that at no stage was Mr Hayes provided with any evidence from the University to support the University’s contention that the emails caused reputational damage, and such lack of evidence prevented Mr Hayes from responding fully to this allegation. 11

[17] It was also submitted that when advised that he was required to attend a disciplinary meeting to occur on 9 December 2016, despite advising the University that his representative was unavailable on this date, Mr Hayes was still requested to attend this meeting. The meeting did not proceed. On this basis it was submitted that he was denied access to a support person. 12

[18] On the basis that the conduct involved did not constitute serious misconduct, it was argued there was no valid reason for his dismissal. In terms of procedure, it was argued he was denied an opportunity to respond to certain allegations and denied access to a support person at a programmed meeting. For these reasons, and having regard to the significant financial and personal effect on Mr Hayes as well as his length of employment of four years and nine months, it was submitted that the circumstances constitute a finding by the Commission that his dismissal was unfair. 13

Evidence of Mr Hayes

[19] Mr Hayes acknowledged that he had sent an email to Mr David Kalisch at the ABS under his signature as an employee of Murdoch University, using the Murdoch University email address. He stated that the reason the email had been sent was because he was concerned about deaths in custody over unpaid fines and that two aboriginal women had recently died while in police custody for unpaid fines and no one had been charged over the deaths. 14 He was particularly concerned with the Australian government surveying its own citizens and that in 2016, the ABS had modified the Census into a data matching exercise and that if anyone objected they could be fined and possibly jailed. He wanted to point out to the ABS his objections and that he would not tolerate his family’s personal information being collected electronically and being vulnerable to theft.15

[20] Mr Hayes was adamant that he did not deliberately send the emails from his Murdoch email account. He stated that at the time it did not cross his mind which email account he was using. 16

[21] Mr Hayes confirmed that following a meeting held on 24 August 2016, he was stood down on full pay pending the outcome of an investigation into the allegations concerning the emails.  17 At the meeting and all other meetings he was represented by Mr Peter Quinn, an Industrial Officer from the National Tertiary Education Union.

[22] On 9 September 2016, he provided his written response. 18

[23] On 15 September 2016, he received an email from Ms Sarah Hutchings the Interim Manager Employee Relations, advising she was the nominated investigator into the allegations. 19

[24] On 21 September 2016, Mr Hayes attended an interview with Ms Hutchings accompanied by Mr Quinn. 20

[25] On 22 September 2016, Ms Hutchings emailed a draft Summary of Statement outlining what had taken place at the 21 September meeting. 21

[26] On 13 October 2016, Mr Quinn on behalf of Mr Hayes emailed Ms Hutchings to advise that he would be lodging a grievance about her behaviour as the investigator. 22

[27] On 8 November 2016, Mr Hayes received via email a letter outlining the findings of the investigation which asked him to show cause why his employment should not be terminated. 23

[28] On 9 November 2016, Mr Quinn on Mr Hayes’ behalf emailed Ms Narustrang a grievance regarding the investigation process. 24

[29] On 10 November 2016, Mr Quinn emailed Mr Hayes’ response to the show cause letter. 25

[30] On 17 November 2016, he received a letter from Ms Hutchings in response to his complaint advising that the investigation regarding the allegations had been conducted with procedural fairness. 26

[31] On 23 November 2016, Mr Quinn further emailed Ms Narustrang in response to the 17 November correspondence. Ms Narustrang responded on 30 November 2016, advising that there was no basis for any further action to be taken in relation to the grievance. 27

[32] On 30 November 2016, Mr Hayes stated he received an email from a Mr Innes, the Interim Associate Director, People and Culture, requesting that he attend a disciplinary meeting on 1 December 2016. 28

[33] Mr Hayes sent the response to Ms Narustrang’s 30 November letter on 5 December 2016, which in substance submitted that he did not receive a fair hearing, there had been bias against him during the handling of the investigation and his grievance, and that he had been denied access to any evidence that the University had which might support their allegations. 29

[34] On 6 December 2016, Mr Hayes received a further email from Mr Innes requesting his attendance at a meeting on 7 December 2016 to which he replied stating that Mr Quinn and he would not be available to attend that meeting. On 9 December 2016, Mr Hayes received his termination of employment letter. 30

[35] Mr Hayes’ evidence was that he had not intentionally drawn Murdoch University into his complaint with the ABS and submitted that the obscenities used in the emails were words now in common parlance and used in courts and parliament. 31 Mr Hayes also stated that he had been provided with no evidence that Murdoch’s reputation had been damaged by his emails.32

[36] Mr Hayes also stated that in respect to his claim of allegations not brought to his attention, the reference to his email being tweeted accompanied by the hash tag #censusfail in his termination letter was not brought to his attention and he therefore wasn’t provided with the opportunity to respond. 33

[37] Mr Hayes acknowledged that at every meeting with the University regarding the allegations he had with him a support person. 34

[38] Mr Hayes’ evidence was that he had had limited employment working on and off since his termination despite efforts to obtain alternative employment and that he was suffering significant financial harm. He stated he was currently working part-time in three jobs. 35

[39] Other than Mr Quinn, Mr Hayes did not call any other witnesses to support his application.

Evidence of Mr Peter Quinn

[40] Mr Quinn at the relevant time was employed by the National Tertiary Education Union. He provided a witness statement, 36 gave oral evidence and was subject to cross examination. Mr Quinn attended the 24 August 2016, meeting with Mr Hayes to discuss the allegations of serious misconduct; he did so at the request of Mr Hayes.

[41] On 6 September 2016, he requested additional information relating to the allegations and an extension of time to provide Mr Hayes’ response. Mr Quinn stated that on 16 September 2016, Mr Hayes informed him that he had been advised that Ms Hutchings had been assigned to investigate the serious misconduct allegations. Mr Quinn advised that he had raised with Ms Hutchings issues relating to the procedural fairness of the investigation. Ms Hutchings, while considering his complaint, later advised that she was satisfied that the University was acting in a procedurally fair manner. 37

[42] Mr Quinn stated that he and Mr Hayes attended an interview with Ms Hutchings on the 21 September 2016, at the conclusion of which Ms Hutchings advised that she would provide a draft Summary of Statement outlining the content of the interview. 38

[43] On 27 September 2016, Mr Quinn emailed Ms Hutchings advising that Mr Hayes did not believe that the draft Summary of Statement represented a fair and reasonable record of what had occurred at the 21 September interview. 39

[44] On the 13 October 2016, Mr Quinn emailed Ms Hutchings to advise that Mr Hayes would be lodging a grievance in relation to her behaviour as the investigator. 40

[45] On 8 November 2016, Ms Narustrang emailed a letter outlining the findings of the investigation (the show cause letter) to Mr Hayes, copying in Mr Quinn. 41

[46] On 10 November 2016, Mr Quinn emailed Mr Hayes’ response to the show cause letter to Ms Narustrang. 42

[47] On 17 November 2016, Ms Hutchings sent Mr Hayes a letter in response to the grievance and that had been raised. 43

[48] On 30 November 2016, Ms Narustrang emailed a letter for Mr Hayes to Mr Quinn, advising that she had found no basis for any further action be taken in relation to the grievance.

[49] On 7 December 2016, Mr Quinn was copied into correspondence from Mr Innes to Mr Hayes requiring Mr Hayes to attend a disciplinary meeting proposed for 8 December 2016. Mr Quinn emailed Mr Innes as Mr Hayes’s representative advising he would be unable to attend the meeting scheduled for 8 December and provided several alternative dates.

[50] On 8 December 2016, Mr Innes emailed a response to Mr Quinn’s email of 8 December requesting that he review his scheduled to enable the meeting to take place on 9 December 2016. The correspondence from Mr Innes stated that if Mr Hayes and Mr Quinn chose not accept the invitation to meet on 9 December which would provide Mr Hayes a final opportunity to show cause as to why his employment should not be terminated, a decision based on the current information would be made and they would be advised of the outcome in writing. 44

[51] Mr Quinn responded to Mr Innes via email on 9 December asking that the meeting be adjourned. On the same day Mr Hayes’ employment was terminated.

Submissions and evidence on behalf of Murdoch University

[52] Murdoch is a public university with campuses in Western Australia, Singapore Malaysia and Dubai. The University provides tertiary education to more than 20,000 students. The University relies on funding from the Commonwealth government. Its website is visited by 1.3 million visitors per year and is a key to Murdoch’s recruitment of students. 45

[53] Mr Hayes’ employment is governed by the Murdoch University Enterprise Agreement 2014. 46 During Mr Hayes’ employment he was required to comply with the University’s Code of Conduct policies and procedures.

[54] It was submitted that Mr Hayes had received training in relation to the University’s Code of Conduct and Code of Ethics. 47

[55] The University outlined the series of events that finally led to the applicant’s termination of employment which began with a written warning sent to Mr Hayes on 23 June 2016. The written warning arose from an email Mr Hayes had sent on 29 February 2016 to a work colleague. The email referred to another colleague as either ‘deliberately lying’ or ‘suffering from a mental health issue’. 48

[56] Despite having received a written warning on 23 June 2016, in relation to the sending of the 29 February email, Mr Hayes sent an email on 5 August 2016 to Mr Kalisch, the Head Statistician at the ABS which the University said was couched in inappropriate and unprofessional terms. The University stated that it was alerted to the incident following receipt of a complaint from the ABS concerning the nature of the email.

[57] On 10 August 2016, Mr Hayes sent a further email to Mr Kalisch which was also said to contain unprofessional and inappropriate language. He also copied this email to a federal politician. On the same day he forwarded the two emails he had sent to Mr Kalisch to persons outside of the University.

[58] On 24 August 2016, Linda McNab, the then Manager Recruitment and Advisory for the University, met with Mr Hayes and Mr Quinn to provide Mr Hayes with information regarding the ABS complaint.

[59] At the meeting Mr Hayes was provided with a letter of allegations. The first allegation concerned the email sent by Mr Hayes to Mr Kalisch, Australian Statistician at the ABS, on Friday 5 August 2016 at 2:05pm. The email was sent from Mr Hayes’ Murdoch email address inclusive of the University logo and Mr Hayes’ signature block. The email was copied to the Federal member for Fremantle.

[60] The allegation of serious misconduct stated that the content and tone of the language used in the emails of 5 August 2016 and 10 August 2016 to Mr Kalisch was abusive, insulting and offensive and Mr Hayes had acted contrary to the Murdoch University Staff Code of Conduct and Code of Ethics.

[61] It was further alleged that the sending of a copy of both emails to persons external to the University was also contrary to the Code of Conduct. Further, in copying the emails to other persons it could not be understood as amusing or intended to be ‘just for a laugh’.

[62] It was said by the University that Mr Hayes’ use of the Murdoch email account to send the emails of 5 and 10 August 2016 to Mr Kalisch has damaged the University’s reputation with the ABS.

[63] On 9 September 2016, Mr Hayes provided a written response to the allegations. In Mr Hayes’ response he questioned whether this behaviour could be categorised as serious misconduct and stated that the language used in his email was a measure of frustration, disappointment and indignation. Mr Hayes acknowledged that he should have used his own email address which he categorised as a minor error. 49

[64] Mr Hayes also stated that if his behaviour had brought the University into disrepute, it needed to be demonstrated by the University. He alleged that there were procedural deficiencies in the way the University had conducted itself and stated that the process had been managed in an appalling manner. 50

[65] On receipt of the applicant’s response, Ms Hutchings stated she attempted to contact Mr Hayes by telephone on two occasions to arrange for a further interview. As the applicant did not answer these calls Ms Hutchings sent Mr Hayes an email to arrange an interview time. 51

[66] On 21 September 2016, Ms Hutchings and Ms Hayley Burrows of the University met with Mr Hayes and Mr Quinn regarding the allegations and his response. Ms Hutchings stated that during the interview Mr Hayes acknowledged he had sent the emails but continued to deny that his actions could be categorised as serious misconduct and he maintained the process adopted by the University regarding the allegations was flawed. 52

[67] Between 23 September and 5 October 2016, the University, Mr Hayes and Mr Quinn exchanged various emails regarding a draft Summary of Statement setting out the information gathered during the interview of 21 September 2016. Notwithstanding the refusal of Mr Hayes to sign the Summary Statement, the University continued with its investigation into Mr Hayes’ alleged serious misconduct.

[68] On 8 November 2016, the University concluded that the allegations were substantiated and that Mr Hayes’ conduct amounted to serious misconduct being a breach of the Code of Conduct and the University’s email conditions of use policy. In correspondence of 8 November 2016, Mr Hayes was invited to respond to the findings and to show cause as to why his employment should not be terminated. 53

[69] Mr Hayes’ response was received by the University on 10 November 2016. The response raised a number of issues none of which denied that the emails had been sent, but rather questioned the investigation process and asserted that the conduct should be described as misconduct rather than serious misconduct.

[70] The University submit that during the investigation process Mr Hayes’ tone and attitude toward senior members of the management team was negative and obstinate. Further, it submits Mr Hayes caused the investigation process to be unnecessarily delayed due to his behaviour. It was expected that Mr Hayes would have, following the allegations, reflected on his behaviour and communication style and sought to change this, whereas he demonstrated a lack of accountability, cooperation and contrition during the period following the allegations being brought to his attention. 54

[71] The University formed the conclusion that the conduct was wilful and deliberate.  55 Mr Hayes’ inability to recognise at the time that the emails’ language and tone was offensive56 left no other outcome than his position in a senior role with the University could no longer continue.

[72] The University submitted that, while it was under no obligation to do so, Mr Hayes was provided with four weeks’ salary on termination. Mr Hayes also remained on paid leave for more than three months during the investigation and had the opportunity to respond to all allegations and to have a support person present in the relevant meetings. 57

Evidence of Mr Cullingford

[73] In April 2016 Mr Cullingford was engaged by the University in the role of Associate Director of Marketing Services. Since December 2016, he has been the acting Director of Marketing and Communications.

[74] Mr Cullingford provided a witness statement, 58 gave evidence and was subject to cross examination. Mr Cullingford stated that when he first started working at the University he was told that there were interpersonal difficulties and differences between Mr Hayes and the Senior Online Marketer Mr Kevin Power. Due to these difficulties Mr Hayes and Mr Power would not work in the same office.59

[75] Mr Cullingford stated that in May 2016, he decided to take steps to assist Mr Hayes and act as a mediator and conduit between the divided digital team whereby he organised and attended regular meetings with Mr Hayes. He believed that progress was being made with Mr Hayes until he was copied into an email sent by Mr Hayes, dated 21 June 2016, about workload management. Mr Cullingford stated he was concerned with the tone of the email and that it was not an appropriate way to communicate about a colleague. As a result he met with Mr Hayes on 7 July 2016 where he advised him that his email was not a proper way to communicate. 60

[76] Mr Cullingford’s evidence was that he was very disappointed when he became aware of the emails that Mr Hayes sent to the ABS as he had previously explained to him that emails with this tone and type of language were highly inappropriate and unacceptable. He was further concerned that Mr Hayes had sent the emails from his work email which could be taken as representing the University. Mr Cullingford stated he was also concerned that Mr Hayes had sent such inappropriate emails to a key stakeholder of the University. As a result of these emails Mr Cullingford formed the view that Mr Hayes had the propensity to act in unpredictable and impulsive manner and he could no longer trust Mr Hayes’ judgement. 61

[77] Mr Cullingford stated that on 25 November 2016, he became aware that Mr Hayes’ email had been tweeted and the University was receiving attention on social media. 62

[78] During the investigation of the alleged misconduct of Mr Hayes, Mr Cullingford stated he was consulted by Ms Hutchings and his view sought about the risk that Mr Hayes represented to the University’s reputation. Mr Cullingford expressed the view that given Mr Hayes’ role and his ability to edit the University’s website he believed he represented a high risk to the University’s reputation. As a result, he endorsed Ms Hutchings’ recommendation to terminate Mr Hayes’ employment. 63

[79] Mr Cullingford concluded that he believed Mr Hayes was unable to understand the seriousness of his actions and given his previous misconduct and the fact that he had personally counselled him and told him he should not send inappropriate emails, his continued employment with the University was no longer feasible. 64

Evidence of Sarah Hutchings

[80] Ms Hutchings is currently the University’s Manager of Employee Relations however at the time of Mr Hayes’ termination she was the Interim Manager Employee Relations. Ms Hutchings provided a witness statement 65 and was required for cross examination. Ms Hutchings advised she reported to Michelle Narustrang, the Director People and Culture.

[81] It is Ms Hutchings’ evidence that before joining Murdoch University in September 2016, she had no knowledge of Mr Hayes. Shortly after commencing she received a briefing from Linda McNab, the Manager Recruitment and Advisory regarding Mr Hayes’ alleged serious misconduct. Ms Hutchings stated she reviewed Mr Hayes’ written response to the allegations of serious misconduct and on 12 September 2016, Ms Narustrang asked her to investigate the allegations. 66

[82] On 15 September 2016, Ms Hutchings states she tried calling Mr Hayes on two occasions to introduce herself as the investigator and to invite him for an interview but could not get through so she sent him an email. 67

[83] Following two telephone conversations between Ms Hutchings and Mr Quinn, Mr Hayes’ nominated representative, on 19 September 2016, Ms Hutchings sent an email inviting Mr Hayes to attend the investigation interview to be held on 21 September 2016.

[84] The 21 September interview was also attended by Mr Quinn and is noted as lasting for approximately two hours. Ms Hutchings submits that the purpose of the meeting was to allow Mr Hayes to further respond to the allegations. Ms Hutchings advised that after about the first 20 minutes of the meeting Mr Quinn submitted that Mr Hayes had not been provided with procedural fairness and that an external investigator should be appointed. Ms Hutchings considered the request and determined that she would continue the investigation interview. 68

[85] It is not contested that at the meeting Mr Hayes agreed that he had sent emails to the ABS and to other persons external to the University on 10 August 2016. According to Ms Hutchings’ file note of the meeting, Mr Hayes advised that in his view he was not making a representation on behalf of the University, but had sent the emails out of outrage and frustration. Mr Hayes stated that he did not believe that the tone of the emails to the ABS was abusive or offensive or that his emails had caused any reputational damage to Murdoch. At the time that he sent the emails he did not recall that he was doing so from his work email although he agreed that his conduct in sending the emails was in breach of the University’s policies and guidelines. Mr Hayes acknowledged that he had received training regarding Murdoch’s Code of Conduct and he maintained that while he acknowledged the emails constituted misconduct; it did not constitute serious misconduct. 69

[86] Following the conclusion of the meeting Ms Hutchings stated she completed a draft Summary of Statement that she forwarded to the applicant. Subsequently Mr Hayes and Mr Quinn suggested some amendments which she adopted in part. Ms Hutchings submitted she believed the final statement was a reasonably accurate summary of the meeting, although its accuracy was contested by Mr Hayes. 70

[87] On 13 October 2016, Mr Quinn sent Ms Hutchings an email which stated that Mr Hayes was going to formally complain to the University about her behaviour. In response Ms Hutchings requested further details about Mr Hayes’ complaint. She stated that by late October 2016, as she had not heard anything further from Mr Quinn about the complaint, she proceeded to finalise her investigation and concluded that Mr Hayes had engaged in serious misconduct.

[88] Ms Hutchings’ conclusion was that Mr Hayes’ had wilfully and deliberately drafted the inappropriate emails and had not acted with care and diligence by sending them from Murdoch’s email account with his signature block and the Murdoch logo. The emails in question made a representation on behalf of the University that may cause an imminent and serious risk to the reputation of the University. Ms Hutchings concluded that Mr Hayes’ actions resulted in a loss of trust and confidence for him to perform his role without placing the University’s reputation at serious risk. 71

[89] Ms Hutchings also observed that Mr Hayes did not acknowledge that the content and tone used in the emails was inappropriate and that the emails may cause reputational damage to the University. Ms Hutchings also questioned the honesty of some of Mr Hayes’ responses including that he did not understand that sending emails from Murdoch’s email account with his signature block with the University’s logo meant he was making a representation on behalf of Murdoch and that he did not recall whether he was aware at the time of sending the three emails that he was doing so from his work email and that it was a minor error. Finally Ms Hutchings observed that ‘Mr Hayes and his representative Mr Quinn were not entirely cooperative in the process’. 72

[90] Ms Hutchings provided her report to Ms Narustrang dated 8 November 2016, which contained a recommendation that she consider terminating Mr Hayes’ employment by way of a ‘show cause’ letter and process. 73

[91] Ms Hutchings stated that she became involved in the matter again after she was required to attend to queries received from the investigating officer at the Office of the Ombudsman of Western Australia as result of a complaint Mr Hayes had lodged. 74

Evidence of Ms Narustrang

[92] Ms Narustrang is the Director of People and Culture at Murdoch University. In this role Ms Narustrang was the decision maker in the termination of Mr Hayes’ employment with the University.

[93] Ms Narustrang’s evidence was that upon receiving the ABS complaint with regard to the email sent by Mr Hayes to the ABS on 5 August 2016, she made inquiries and found that on 10 August 2016 Mr Hayes had sent a further email to the ABS and copied in a member of Parliament. Ms Narustrang also discovered that Mr Hayes had forwarded the emails to other individuals under the heading ‘just for a laugh’. 75

[94] Ms Narustrang stated that, as a result of internal enquiries, she became aware that Mr Hayes had previously been disciplined for sending emails with inappropriate content. On the basis of Mr Hayes’ previous disciplinary history and the fact that he had joked about his emails to the ABS, she believed this indicated that his actions in sending the emails may have been deliberate. Ms Narustrang stated she was also conscious that Mr Hayes’ conduct could have serious ramifications on the University’s reputation and she determined that the conduct should be investigated. 76

[95] It was Ms Narustrang’s evidence that Ms McNab, who was a Manager within the People and Culture Division, was initially instructed to investigate the matter. However on 9 September 2016, she was notified by Ms McNab that Mr Hayes had complained about her and the process she had followed. Based on that information, although she did not see any basis for Mr Hayes to make such a complaint, to avoid any suggestion that Murdoch was not willing to afford Mr Hayes a fair and proper opportunity to be heard, Ms Narustrang instructed Ms Hutchings to conduct the investigation. 77

[96] Ms Narustrang submitted that on or around early November 2016, Ms Hutchings provided her with an investigation report and recommendations. She agreed with the Report’s conclusion that Mr Hayes had engaged in serious misconduct and determined that her recommendation to terminate Mr Hayes’ employment should be acted upon by inviting Mr Hayes to show cause as to why the University should not dismiss him. 78

[97] She stated that on the 9 November 2016, the day after the show cause letter was sent; Mr Quinn phoned and stated that he had raised a grievance regarding Ms Hutchings’ investigation. Following this, Ms Narustrang stated she directed Ms Hutchings to reply to the grievance which she did on 9 November 2016. 79

[98] On 23rd of November 2016, Ms Narustrang received a further email from Mr Quinn advising that the response to his grievance by Ms Hutchings was unacceptable and that he wanted the matter be resolved by another person. Ms Narustrang stated that as Mr Quinn had raised a question about Ms Hutchings’ impartiality, she thought it appropriate to appoint Mr Allen Innes to conduct an entire review of the investigation process. Mr Innes was at the time the Interim Associate Director People and Culture. Mr Innes concluded that Mr Hayes’ grievance was without merit. 80

[99] On 30 November 2016, Ms Narustrang sent Mr Hayes a letter confirming that she had considered his grievance and formed the view that there was no basis for any further action to be taken. 81

[100] On 5 December 2016, Ms Narustrang received an email from Mr Hayes in which he repeated his grievances against Ms Hutchings and Ms McNab and raised an additional grievance against her. On 7 December she sent Mr Hayes a letter confirming her view that he had been afforded procedural fairness throughout the investigation and that she did not accept his allegations of bias against the investigators or that the matters raised by him had not been given due consideration. 82

[101] Having considered Mr Hayes’ response to the show cause letter, Ms Narustrang stated that she decided to terminate Mr Hayes’ employment and instructed Mr Innes to make the necessary arrangements for Mr Hayes to attend a meeting to discuss that action. Ms Narustrang’s evidence was that there were a number of difficulties in arranging a final meeting with Mr Hayes including the fact that Mr Quinn was not available on a day suitable to the University. After Mr Innes advised Ms Narustrang that he could not arrange for a meeting with Mr Hayes, she then instructed Mr Innes to send a letter to Mr Hayes terminating his employment for serious misconduct. The letter was dated 9 December 2016. Despite concluding his behaviour was serious misconduct, taking into consideration his four years plus of service she determined that he be paid four weeks’ salary. 83

[102] Ms Narustrang stated that she was concerned with the potential reputational damage to the University as a result of Mr Hayes’ email being assessed by an apparent journalist who had then tweeted the email. 84 Ms Narustrang stated however that the tweet was not part of the investigation and that the decision to terminate was based on the emails that had been sent by Mr Hayes.

[103] Ms Narustrang concluded that her decision was based on a conclusion that Mr Hayes’ behaviour was wilful and deliberate. After sending the first email to the ABS he then sent a second one, following which he went on to forward the emails to other individuals outside the University saying it was a joke, which suggested he had wilfully sent the emails. Ms Narustrang also stated she was concerned that Mr Hayes failed to accept that the language used in the emails was offensive which demonstrated very poor judgement for a person in his position. By the time the investigation was finalised Ms Narustrang stated she had lost faith and confidence in his ability to reflect and improve his attitude and behaviour. 85

Determination

[104] Section 387 of the Act sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:

[105] I will now consider each of these factors in turn.

(a) Whether there was a valid reason related to capacity or conduct for the dismissal

[106] Mr Hayes’ employment was governed by the Murdoch University Enterprise Agreement 2014 (the Agreement). The Agreement at clause 62 Misconduct/Serious Misconduct provides that termination of employment can only occur in the case of serious misconduct. In considering whether a valid reason for termination exists Mr Hayes submits that it is necessary to have regard to the obligations under the Agreement which restrict termination of employment to the sole ground of serious misconduct. Under the Agreement where misconduct alone has occurred, there are a number of other disciplinary actions the employer may take, as they can for serious misconduct.

[107] The Agreement defines misconduct as being any action contrary to the University’s Code of Conduct, all relevant laws of the State or Commonwealth and all lawful and reasonable directions of the employer. Whereas the definition of serious misconduct found at subclause 62.3 is in the following terms:

[108] It is noted that the above definition appears to be based on the definition of serious misconduct under the Fair Work Regulations 2009, Regulation 1.07(2).

[109] Mr Hayes submitted that while acknowledging the conduct in sending the emails was unprofessional and based on poor judgement, it did not meet the definition under the Agreement of serious misconduct.

[110] Wilful does not necessarily require an employee to be involved in criminal or immoral activity but rather a deliberate action that derogates from the employee’s duty. 86 It was put that Mr Hayes’ conduct in sending the ABS the emails was not deliberate or intentional and he did not intend to damage Murdoch’s reputation or break the essential terms of his contract of employment, as such the conduct complained of does not meet the threshold of serious misconduct as defined under the Agreement.

[111] The approach to the assessment, pursuant to s.387(a) of the Act, as to whether there is a valid reason for an employee’s dismissal relating to the employee’s capacity or conduct where the employee is alleged to have committed misconduct was commented on by a Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post 87:

[35] Subject to that, as indicated by Northrop J in Selvachandran 91, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[112] In a serious misconduct case, the Commission is concerned with whether the alleged serious misconduct in fact occurred. 92 There is no dispute that the conduct complained of by the University occurred. However as put by Mr Hayes, it is a question as to whether the ‘misconduct’ is of sufficient seriousness to warrant termination, having regard to the terms of the Enterprise Agreement which limits termination of employment to circumstances where serious misconduct has occurred.

[113] Whether this is a consideration under s.387(a) in establishing a valid reason as opposed to considering the terms of the Agreement under s.387(h) ‘any other matters that the Commission considers relevant’ is open to question. In the decision of Owen Sharp v BCS Infrastructure Support Pty Ltd  93 the Full Bench stated that it is well established that, for the purposes of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal. Nor is the existence of a valid reason to dismiss assessed by reference to a legal right to dismiss.94

[114] In Titan Plant Hire Pty Ltd v Shaun Van Malsen 95 the Full Bench made the following comments about the meaning of ‘valid reason’:

[115] In any event, I have no difficulty in arriving at the conclusion that the sending of the emails by Mr Hayes provided the University with a valid reason for dismissal. The misconduct constituted the use of language that was vulgar and offensive and was contained in an email identifying the University and Mr Hayes’ role at the University. Mr Hayes’ conduct was in breach of the University’s Code of Conduct and Email and Electronic Messaging Guidelines. 101 While the language used by Mr Hayes may be common vernacular in some circles, when reduced to writing and addressed to a specific recipient not personally known to Mr Hayes, such language has an element of intentional abuse and cannot be regarded under any circumstances as acceptable language.

[116] In Sent v Primelife Corporation Ltd 102, Mandie J said at [17]:

[117] In considering the terms of the Agreement, in my view the actions of Mr Hayes’ also satisfy the meaning of serious misconduct as defined under the Agreement.

[118] The misconduct was wilful and constituted a serious impediment to the carrying out of Mr Hayes’ duties. I do not accept that the sending of the offending email on 5 August 2016, from Mr Hayes’ work computer together with his work signature block identifying himself as the Interactive Producer at the University with the accompanying University logos and references, was anything but a deliberate action that seriously derogated from his duty. Mr Hayes’ email of 5 August 2016, states that he works in IT and he then signs off in his role at the University. I am satisfied that this demonstrates a clear, deliberate and intentional link made by Mr Hayes to his role at the University.

[119] To submit that it did not cross his mind what email account he was using is not a plausible explanation for a professional employee who had recently been admonished over the use of inappropriate language in his email correspondence. No effort was made by Mr Hayes to redress the situation and he went on to send a further offending email on Wednesday 10 August 2016, to Mr Kalisch and then copied both emails to 3rd parties with the comment ‘FYI just for a laugh’. He further stated under his Murdoch email address that the emails were a form of ‘bullying’.

[120] The misconduct clearly has the potential to cause an imminent and serious risk to the reputation of the University. It is not a requirement under the Agreement’s definition of serious misconduct for the University to establish actual damage to its reputation. Although the correspondence from the ABS and the tweeting of the emails by a third party with 1,200 followers 103 would give rise to an irresistible conclusion that the reputation of the University has been prejudiced.

[121] Having found that a valid reason for the dismissal exists, the Commission is obliged to consider the other factors contained in s.387 (b)-(h) which may be described as mitigating factors that may establish the unfairness of the dismissal. In Parmalat Food Products Pty Ltd v Wililo 104 a Full Bench stated at Para 24:

(b) whether the person was notified of that reason;

[122] Mr Hayes was provided with a comprehensive written outline of the allegations concerning his actions in correspondence dated 24 August 2016. A further letter dated 7 December 2016 105 was also provided to Mr Hayes outlining the proposed reasons for his termination.

[123] It was put by Mr Hayes that in his termination of employment letter the University made reference to his email having been ‘tweeted’ and that the tweets referenced the University specifically and likely reached a large number of people. Mr Hayes submitted he did not have an opportunity to respond to the tweet reference. The reference to the tweet was not an allegation made against Mr Hayes and did not come to the attention of Ms Narustrang until 25 November 2016. It was evidence of the potential damage to the reputation of the University.

[124] Other than the bare assertion that no opportunity to respond was provided regarding the tweet reference, Mr Hayes was unable to elaborate on what prejudice he may have suffered as a consequence. 106 Even accepting Mr Hayes’ argument on this point does not demonstrate that the consequence produced any unfairness; as was stated in the Shire of Esperance v Mouritz:107

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[125] Mr Hayes was placed on leave with pay once the allegations of serious misconduct were brought to his attention and was initially provided with a period of 10 days to respond which was extended at his request.

(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;

[126] At all meetings attended by Mr Hayes to discuss the allegations against him he had with him Mr Quinn. This practice was consistent with the right under the Agreement for an employee to have a representative when faced with misconduct allegations. 108

[127] Mr Hayes’ argues that he wasn’t able to have a representative for a proposed meeting to be held on 8 December 2016. That meeting did not proceed, although as stated in the evidence of Ms Narustrang, numerous opportunities were provided for Mr Hayes’ to attend a final meeting. The proposed final meeting dates did not suit Mr Hayes due to the unavailability of his representative. For example on 6 December 2016, Mr Hayes sent an email to Mr Innes who was attempting to organise a final meeting which stated as follows:

[128] There was no unreasonable refusal by the University to allow Mr Hayes to have a support person present to assist at any discussions relating to his dismissal.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;

[129] The dismissal related to serious misconduct although Mr Hayes had previously been counselled over the sending of derogatory emails. 110

(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;

[130] Murdoch University is a large organisation with sufficient resources at its disposal to be expected to deal with Mr Hayes’ termination in an appropriate manner.

(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;

[131] The University does not suffer from an absence of dedicated human resource management specialists or expertise.

(h) any other matters that the FWC considers relevant.

[132] Mr Hayes’ submits that his length of service is a factor to be considered in finding that his dismissal was unfair. While Mr Hayes had been employed for in excess of four and a half years, I do not consider that this period is of such duration as to warrant serious consideration as a mitigating factor. Mr Hayes’ service was not unblemished, his approach to the investigation was less than co-operative and it is difficult to identify any genuine contrition.

[133] Mr Hayes also points to his economic loss since his termination as a reason the dismissal is unfair. While the economic loss is acknowledged it is not an uncommon result of termination and not a factor that raises any special consideration in Mr Hayes’ circumstances.

[134] Mr Hayes was placed on leave with pay from 5 August 2016, until his eventual termination effective 9 December 2016. During this period an investigation was undertaken by the University during which Mr Hayes and his representative raised a number of grievances and allegations as to why the process was not being dealt with in a fair manner. All these issues were addressed by the University, including reallocating the investigation to another staff member. 111

[135] On termination Mr Hayes was provided with 4 weeks’ pay.

[136] On the basis of my conclusions in this matter, Mr Hayes’ application for an unfair dismissal remedy under the Act is dismissed.

al of the Fair Work Commission with member's signature

DEPUTY PRESIDENT

Appearances:

Applicant: Mr Kivraj Singh - Paid Agent - Chapman’s Barristers and Solicitors

Respondent: Mr Jason Raftos of Counsel and Vishan Katara Atchamah - Solicitor - Minter Ellison

Hearing details:

2017.

Perth

27 March

4 April

 1   Applicant's outline of submissions at [4] although in oral evidence Mr Hayes stated he only supervised one staff member

 2   Exhibit A3, Applicant’s outline of submissions at [5]

 3   Exhibit A3 at [6]

 4   Exhibit A3 at [7]

 5   Exhibit A1, Witness Statement of Stephen Hayes, at [18]

 6   Exhibit R3, Witness Statement of Michelle Narustrang, at [12]

 7   Exhibit A1

 8   Exhibit A2, Witness Statement of Peter Quinn

 9   Exhibit A3 at [23]

 10   Exhibit A3 at [24]

 11   Exhibit A3 at [26]

 12   Exhibit A3 at [30] – [32]

 13   Exhibit A3

 14   Exhibit A1 at [12]

 15   Exhibit A1 at [13]

 16   Exhibit A1 at [14]

 17   Exhibit A1 at [21]

 18   Exhibit A1 at [22]

 19   Exhibit A1 at [23]

 20   Exhibit A1 at [25]

 21   Exhibit A1 at [26] and Exhibit R2, Statement of Ms Hutchings, at [51]

 22   Exhibit A1 at [29] and Exhibit R2 at [52]

 23   Exhibit A1 at [31]

 24   Exhibit A1 at [32] and Exhibit R3 at [24]

 25   Exhibit A1 at [33] and Exhibit R3 at [25]

 26   Exhibit A1 at [34]

 27   Exhibit A2 at [23]

 28   Exhibit A1 at [37]

 29   Exhibit A1 at [38]

 30   Exhibit A1 at [41] – [42]

 31   See correspondence to Ms L McNab dated 9 September 2016. On questioning by the Commission Mr Hayes in his evidence withdrew the reference to courts at PN 482

 32   Exhibit A3 at [26]

 33   PN788

 34   PN737-738

 35   PN949

 36   Exhibit A2

 37   Exhibit A2 at [6] – [9]

 38   Exhibit A2 at [10]

 39   Exhibit A2 at [12]

 40   Exhibit A2 at [14]

 41   Exhibit A2 at [18]

 42   Exhibit A2 at [20]

 43   Exhibit A2 at [21] and Exhibit R2 at [59]

 44   Exhibit A2 Attachment PJQ 15

 45   See Outline of Submissions Exhibit R5

 46   Exhibit R5 at [4]

 47   Exhibit R2 at [24]

 48   Exhibit R2 at [27] – [31]

 49   Exhibit A1 at [22]

 50   Exhibit A1 at [22]

 51   Exhibit R2 at [41]

 52   Exhibit R2 [45] – [49]

 53   Exhibit R3 at [22] -[23]

 54   Exhibit R5 at [38]

 55   Exhibit R5 at [12]

 56   See Letter of Termination

 57   Exhibit R5 at [17]

 58   Exhibit R1, Witness Statement of Rob Cullingford

 59   Exhibit R1 at [12]

 60   Exhibit R1 at [19] – [20]

 61   Exhibit R1 at [26]

 62   Exhibit R1 at [27]

 63   Exhibit R1 at [30] –[31]

 64   Exhibit R1 at [32]

 65   Exhibit R2

 66   Exhibit R2 at [17]-[18] and [40]

 67   Exhibit R2 at [41]

 68   Exhibit R2 at [45]-[48]

 69   Exhibit R2 at [48]

 70   Exhibit R2 at [51]

 71   Exhibit R2 at [56]

 72   Exhibit R2 at [56]

 73   Exhibit R2 at [56]

 74   Exhibit R2 at [63]

 75   Exhibit R3 at [12]

 76   Exhibit R3 at [16]

 77   Exhibit R3 at [19]

 78   Exhibit R3 at [22]

 79   Exhibit R3 at [24] and [27]

 80   Exhibit R3 at [30]

 81   Exhibit R3 at [31]

 82   Exhibit R3 at [33]

 83   Exhibit R3 at [37]-[40], [47], [56]

 84   Exhibit R3 at [43] and [44]

 85   Exhibit R3 at [52]-[54], [59]

 86   Adami v Maison Deluxe Ltd (1924) 35 CLR 143 at 147

 87   [2013] FWCFB 6191

 88   (1996) 71 IR 201

 89   (1998) 88 IR 408;

 90   (1998) 84 IR 1)

 91   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

 92   See for example Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1)

 93   [2015] FWCFB 1033 at [32]

 94   See Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10] and He v Lewin (2004) 137 FCR 266 at [15] per Gray and Mansfield JJ stating that a ‘valid reason’ is not the existence of a legal right to terminate a contract of employment

 95   [2016] FWCFB 5520

 96   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 97   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7]

 98  Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10]

 99   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15]

 100   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23]

 101   See Para’s 1.1(b) and (g) of the Code of Conduct and section 1 Para 5 of the Email and Electronic Messaging Policy.

 102   [2006] VSC 445

 103   Exhibit R1 at [27]

 104   [2011] FWAFB 1166

 105   PJQ 11 of Exhibit A2

 106   PN372-375

 107   WA Industrial Appeal Court 71 WAIG 899

 108   Clause 62.4 of the Enterprise Agreement

 109   Exhibit A1 attachment SJH 18 See PN 220-223

 110   Meeting with Mr Cullingford 7 July 2016

 111   See paragraph [19] of Exhibit R3

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