| [2018] FWC 6970 [Note: An appeal pursuant to s.604 (C2018/6847) was lodged against this decision - refer to Full Bench decision dated 31 January 2019 [[2019] FWCFB 371] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chris Rodger
v
ACT Government - Transport Canberra and City Services T/A ACTION
(U2017/7768)
DEPUTY PRESIDENT KOVACIC |
CANBERRA, 15 NOVEMBER 2018 |
Application for relief from unfair dismissal – dismissal found not to be unfair – application dismissed.
[1] Mr Chris Rodger (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 19 July 2017 alleging that he had been unfairly dismissed by ACT Government - Transport Canberra and City Services T/A ACTION (Transport Canberra or ACTION – the Respondent) with effect from 30 June 2017.
[2] The matter was initially set down for hearing on 6 November 2018. However at the commencement of proceedings Mr Rodger sought an adjournment on the basis that he had been charged with a number of offences relating to the possession of firearms and explosives. With the consent of ACTION an adjournment was granted with the matter held over until the proceedings in the ACT Magistrates Court relating to the charges had concluded. Mr Rodger was ultimately convicted of the “unauthorised possession/use of 3-9 firearms (not prohibited)” and a “failure to store ammunition approved content firearm” and was fined a total of $900 1. In its submissions ACTION inter alia agreed with Mr Rodger’s contention that the criminal charges brought against him had nothing to do with his alleged misconduct in this case.
[3] Mr Rodger’s unfair dismissal application was eventually heard on 22 and 23 August 2018.
[4] At the hearing, Mr Jamie Ronald of Counsel appeared with permission for Mr Rodger, while Ms Prue Bindon of Counsel appeared with permission for ACTION.
[5] Mr Rodger gave evidence on his own behalf. Evidence was given for ACTION by Mr Ian McGlinn, ACTION’s Director of Public Transport Operations, and Mr Steven Wright, ACTION’s Director of People and Capability.
[6] For the reasons outlined below I find that Mr Rodger’s dismissal was not unfair in that it was not harsh, unjust or unreasonable. Accordingly his application will be dismissed.
[7] Mr Rodger commenced employment with ACTION as an apprentice mechanic on 24 January 2000. At the time of his dismissal Mr Rodger was employed as a Technical Officer Grade 4. Mr Rodger was employed under the ACTION Enterprise Agreement 2013-2017 2 (the Agreement).
[8] On Friday, 10 February 2017 Mr McGlinn was advised by ACTION’s Senior Human Resources Manager, Ms Katie Dunn, that Mr Rodger had allegedly brought an explosive device into ACTION’s Belconnen workshop several weeks earlier. As the workshop closes at 3:00 pm on Fridays Mr McGlinn could not act on the matter until the following Monday (13 February 2017) when he visited the workshop to conduct a preliminary assessment in accordance with the relevant provisions of the Agreement. As a result of his preliminary assessment Mr McGlinn referred the matter to the Australian Federal Police (AFP) and for investigation under the Agreement. Mr McGlinn also met with the AFP on 13 February 2017 and advised them of his intention to suspend Mr Rodger. The AFP requested that Mr Rodger not be suspended until after it had looked into the matter.
[9] On 15 February 2017 the AFP sent Mr McGlinn an email which among other things stated as follows:
“Chris returned home while we were at his place and he was very compliant with us. He was of the belief that a NSW licence he held was sufficient for possessing the items described by your employees. He stated that the item described was in fact a plaster ‘training’ utensil.
We do not believe he has had or will have any items in his possession with the intention of hurting anyone.” 3 (Underlining added)
[10] On 16 February 2017 Mr Rodger was stood down on full pay. The Notice of Suspension With Pay letter signed by Mr McGlinn including the following:
Following my preliminary assessment, in accordance with section H.2 of the ACTION Enterprise Agreement 2013-2017 (the agreement), I have been made aware of serious allegations about you bringing inappropriate and/or dangerous items into the workplace.” 4
[11] The letter also stated that “ACT Police are considering this matter.” 5
[12] On 30 March 2017 the Acting Senior Investigator in the ACT Government’s Public Standards Unit who was investigating the matter wrote to Mr Rodger setting out the allegations and inviting him to respond at a formal interview. The allegations set out in the letter were as follows:
“1. On or about 17 January 2017, you had two objects in your possession in the workplace, purported to be explosive booster charges, and produced one of them to a staff member saying comments similar to, “It is a real one but it is hard to set it off” and “It would blow a car in two”.
2. On or about 17 January 2017, you had two objects in your possession in the workplace, purported to be explosive booster charges, and rolled one of them across the floor of the electronics room towards a staff member making comments similar to, ‘‘They are booster charges” and “Would level or blow a car in half”.
3. On or about 17 January 2017, in Bay One of the workshop, you produced an object, purported to be an explosive booster charge, to a staff member saying, “It is a booster charge and would banana a car in half” and “It is only a training thing”.
4. On a date between January 2016 and January 2017, you brought a pair of black powder duelling pistols, purported to be a genuine, into the workplace and produced them to a staff member.
5. On two separate occasions in recent years, you brought firearms into the workplace namely a shotgun and .22 calibre rifle respectively.” 6
[13] Subsequently a number of emails were exchanged between the investigator and Mr Rodger and his then legal representative. On 3 May 2018, Mr Rodger’s then legal representative responded to the allegations in the following terms:
“Further, and specifically in relation to each of the allegation set out in your letter, using the same number of paragraphs as your letter dated 30.3.17, I am instructed to reply as follows:
1. My client admits bringing an inert booster charge to work on one occasion, being on or about 17.1.17. It was a training item and incapable of being detonated. It was made of clay and every person present was told by my client that it was impossible for it to “go off”. The statement allegedly made by my client is incorrect. What he in fact said was “It’s not a real one and you can’t set it off” and “it could blow a car in two if it were live”.
I would point out that this appears to be consistent with the version of events from at least 1 other employee of Transport Canberra, as indicated in the “factual matrix” document provided to us by you attached to your email sent on 18.4.17.
2. This is clearly no more than a different version of the same allegation referred to at 1 above, and I am instructed to make the same apply as that to 1.
3. As above.
4. This is denied completely.
5. This is denied completely.
Finally, whilst it is acknowledged that in hindsight my client’s actions were inappropriate, it is submitted that such are not grounds for termination of his employment given the absence of any danger to anyone, and the lack of any malice on the part of my client. He does also regret his actions.” 7
[14] On 19 May 2017 the Investigation Report 8 was provided to Mr McGlinn. The Report found that there was sufficient evidence to conclude on the balance of probabilities that each of the allegations had been made out.
[15] On 2 June 2017 Mr Rodger was issued a Notice of Proposed Disciplinary Action and Suspension with Pay letter by Mr McGlinn. The letter stated inter alia as follows:
“I have considered the allegations (1 to 5) and have determined each relate to behaviour that places the health and safety of yourself and your fellow employees at risk. I consider that on a number of separate occasions you have brought dangerous items into the workplace. This behaviour demonstrates a concerning pattern of behaviour that is inconsistent with the ACT Public Sector Management Act 1994 and the ACT Public Service (ACTPS) Code of Conduct.
I have determined that allegations 1, 2, 3, 4 and 5 are proven on the balance of probabilities and constitute misconduct under Clause H6.5 of the Agreement. I find this conduct breaches:
Section 9 of the Public Sector Management Act, specifically:
(1) A public employee must –
(c) (iv) treat all people with courtesy and sensitivity to their rights and aspirations and;
(d) do the public servant’s job with reasonable care and diligence, impartially and honestly.
(2) A public servant must not –
(a) behave in a way that –
(i) is inconsistent with the public sector values;
(ii) undermines the integrity and reputation of the service;
(e) when acting in connection with the public servants job – bully, harass or intimidate anyone
Your behaviour is also inconsistent with territory policy, specifically:
1)- Transport Canberra and City Services (TCCS) Code of Conduct, which also incorporates the ACT Public Service (ACTPS) Code of Conduct. This includes your obligations to:
• Act with integrity
• Be Respectful, including treating all people with courtesy and honesty and;
• Be Professional, by acting professionally and in a manner that builds the positive reputation of TCCS. This includes performing official duties with skill, care and diligence, performing your role in a fair and unbiased way, dealing with all individuals and groups fairly, effectively and impartially and maintaining professional relationships with colleagues, customers and the public.
Furthermore, I consider your behaviour meets the meaning of “serious misconduct” as defined by the Fair Work Act 2009, specifically Regulation 1.07 which states in part:
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
Discipline Action
In respect of the findings of the substantiated misconduct, I propose to terminate your employment. The reasons for my proposed decision are at Attachment A, Statement of Reasons.” 9
[16] Mr Rodger’s then legal representative responded on 16 June 2017 10 rejecting the findings that Mr Rodger had at any time engaged in serious misconduct and submitting that the case for termination had not been made out to the required standard.
[17] On 28 June 2017 Mr McGlinn sent Mr Rodger a Notice of Disciplinary Action letter which advised him that his employment would be terminated with effect from the close of business on 30 June 2017. The letter included the following:
“Having carefully considered these submissions, I remain of the view that your conduct was wilful and deliberate and placed you and your fellow employees’ health and safety at serious and imminent risk.
I do not accept your claims that all of the items, that you accept you brought into the workplace, were not dangerous in an operational capacity. Specifically, I find
• Booster charges
• Black powder duelling pistols
• .22 calibre rifle
• shotgun
posed a genuine and serious risk to the health and safety of yourself and your fellow employees, by your actions in bringing them into the workplace. This includes the potential for psychological harm to your fellow employees.
…
I do not accept your behaviour was appropriate. As the delegate to determine the outcome of your actions, I cannot condone behaviour that places the health and safety of public employees at risk. Your actions have demonstrated a pattern of behaviour that is not acceptable to your continuing employment with the ACT Public Service.
Your employment will therefore be terminated with effect close of business 30 June 2017. You will be paid in lieu of the four (4) weeks notice required by the Fair Work Act 2009.” 11 (Underlining as per original)
[18] Mr Rodger submitted that while his conduct could be construed as misconduct it did not warrant termination of employment, noting that he had no incidents of misconduct during his 17 years of employment with ACTION. More specifically, Mr Rodger submitted that there was no valid reason for his dismissal related to his capacity or conduct. Mr Rodger cited several reasons in support of that contention, including that:
• he was not provided with sufficient particulars of the allegations during the course of the investigation to permit him to properly respond;
• the conclusions drawn in the investigation could not be supported by the evidence provided to the investigator; and
• the decision maker erred in finding that he (Mr Rodger) had accepted that he had in fact brought the alleged items into the workplace.
[19] Mr Rodger further submitted that ACTION’s view that the allegations against him were substantiated on the balance of probabilities could not be substantiated on the basis of the evidence. Mr Rodger also disputed ACTION’s submissions in this regard, contending that at best they were misguided and at worst misleading for several reasons including that the evidence was inconclusive and contradictory, there was no evidence that the items brought into the workplace were dangerous, much of the evidence was hearsay or was fake and uncertain, none of the individuals involved in the incidents expressed concerns for their safety or reported the incident at the time and no consideration was given to the absence of any prior incidents of misconduct. Mr Rodger submitted that his conduct was an error of judgement rather than wilful misconduct.
[20] As to remedy, Mr Rodger sought reinstatement together with compensation for lost earnings.
[21] At the hearing, Mr Rodger submitted inter alia that:
• his dismissal was unfair for two reasons, first there was no valid reason for the dismissal and second the dismissal was harsh due to both his personal circumstances and the nature of his misconduct which he described as low on the spectrum;
• ACTION had not brought any direct evidence to the Commission to enable the statements of the first-hand witnesses to be tested, adding that consistent with the decision in Jones v Dunkel 12 the Commission should draw an adverse inference from this;
• he was a credible witness while Mr McGlinn’s evidence as wholly unsatisfactory for a number of reasons, including that there were inordinate pauses while Mr McGlinn searched through the material;
• his evidence as to why he brought the material into work was not challenged and was entirely plausible;
• his employment record with ACTION was unblemished;
• his dismissal was harsh because he was facing a job market that had harsh consequences for him and because it was disproportionate to his conduct;
• he sought reinstatement with continuity of service and back pay; and
• the delay in the hearing due to the ACT Magistrates Court proceedings against Mr Rodger should not play any part in determining the amount of compensation.
[22] Mr Rodger relied on several authorities including Walton v Mermaid Dry Cleaners Pty Ltd 13, B v Australian Postal Corp14 and Byrne v Australian Airlines Ltd15(Byrne) and Briginshaw v Briginshaw and Another16 (Briginshaw).
[23] Mr Rodger filed three witness statements 17, with his second statement disputing aspects of the witness statements of Messrs McGlinn and Wright and his third statement primarily providing information regarding the criminal proceedings against him in the ACT Magistrates Court. In his witness statements Mr Rodger deposed among other things that:
• he admitted during the investigation that he took an inert training booster charge into the workplace on or around 17 January 2017, adding that he also took in two fake duelling pistols to show a colleague;
• he did not take a .22 calibre rifle or shotgun into the workplace;
• at no time did he take dangerous or operational items into the workplace nor did his conduct pose a genuine and serious risk to his health and safety or that of his colleagues;
• no concern was raised about a risk to safety at the time of the alleged incidents or in any of the statements which were provided to the investigator, reiterating that at no time had he put anybody at risk;
• he did not believe he had been afforded procedural fairness in the process leading to his termination, though at the hearing the Commission was advised that this issue was no longer pressed;
• he was aware of another employee setting off an acetylene bomb at ACTION’s Woden workshop who continued to be employed by ACTION and was given a warning following the incident;
• in the two years leading up to the allegations being raised with him he was fully ostracised by the workforce;
• during his time with ACTION he had received no warnings in respect of his performance;
• he bought the training booster into work because his supervisor had told him to make more of an effort to talk to people at work and people found the topic interesting;
• having reviewed the statements provided to Mr McGlinn and the investigator by Messrs Hardie, Ebsworth and Senior he noted that each provided a very different description of what he had brought into the workplace;
• it was ordinary practice for various staff members to bring firearms into the workplace from time to time; and
• since the termination of his employment he had had difficulty securing further employment.
[24] At the hearing, Mr Rodger attested among other things that:
• demand for his trade of electronic technician had diminished over the years;
• he sought reinstatement because the prospect of finding alternative work with his skillset in Canberra was very limited and bordering on impossible;
• since his termination he had started his own small metal fabrication/engineering business;
• he denied taking explosive devices into work during the investigation because he did not take explosives into work, rather he took inert explosive devices into work;
• he denied ever stating that he was asked to bring the booster charge into work;
• it was not uncommon for people to bring items such as firearms, knives and alcohol into show people, adding that it was part of the culture at ACTION to do so;
• others had previously brought explosives into the workplace;
• he was cleaning his garage when he found the booster charge and he “foolishly brought it into work” to aid conversations with his colleagues, adding that he walked around the workplace with the device in his pocket which he described as “not a wise thing to do”;
• he told everyone that he showed the booster charge that it was inert, using language like “it is safe”;
• he denied that the black powder duelling pistols were functional, describing them as ornamental;
• he agreed there was no reason for an electronics technician to bring either inert booster charges or replica guns into the workplace;
• he discarded the booster charge the day that he took it to work after he heard mutterings that he was “trying too hard”;
• he been bullied/ostracised in the workplace over a long period of time and had been advised by his supervisor to try and make friends with people, later adding that he was not using his supervisor’s advice as an excuse for bringing the booster charge into work and acknowledging that it was his decision to do so;
• he thought that bringing the booster charge in to work may have softened friendships;
• he denied rolling the booster charge under a chair, though he agreed he rolled it across the floor;
• he also showed the booster charge to Mr Doug Farrer, adding that Mr Farrer and not Mr Hardie was in the room when he rolled the device across the floor;
• he did not make a bullying complaint because he did not want to exacerbate the situation;
• when asked why he would want to be reinstated in circumstances where he had been bullied/ostracised by his colleagues over a long period of time, he stated that he would not want to go back to that particular environment but could go back to another position in ACTION;
• he had not applied for other jobs following his dismissal as he decided to focus on his own business and because his experience at ACTION had left a bad taste in his mouth;
• he felt that Mr Murphy’s statement to the investigator was likely to have been biased against him as Mr Murphy did not like him; and
• no one had compelled him to bring the booster charge and pistols into the workplace.
[25] In its written submissions ACTION contended that Mr Rodger’s dismissal was not harsh, unjust or unreasonable. ACTION also addressed each of the considerations in s.387 of the Act (ACTION’s submissions in that regard are set out below). As to remedy, the Respondent submitted that reinstatement would be unworkable.
[26] At the hearing, ACTION reiterated its view that there was a valid reason for Mr Rodger’s dismissal and that the dismissal was not harsh. ACTION contended that Mr Rodger’s submissions focussed on the issue of whether his conduct constituted serious misconduct and overlooked/did not address the other grounds relied upon in respect of the dismissal, i.e. that Mr Rodger’s conduct was in breach of s.9 of the Public Sector Management Act 1994 (the PSM Act) and inconsistent with Transport Canberra’s Code of Conduct. ACTION further submitted that:
• in this case the Commission first needed to find whether the conduct occurred and if so whether the conduct warranted dismissal;
• relying on the decision in Australasian Meat Industry Employees’ Union v Dardenup Butchering Co Pty Ltd 18 (AMIEU), the suggestion that hearsay evidence should automatically be disregarded or given less weight should not be accepted, adding that the nature of the hearsay evidence given in this case was different to that in AMIEU;
• no adverse inference could or should be drawn from the employees interviewed as part of the investigation not being called as witnesses in this case, contending that ACTION was entitled to rely on the statements they gave as part of the investigation and that this was not a situation where there was a gap in the evidence which could have been filled had the employees been called;
• relying on the decision in Sullivan v Civil Aviation Safety Authority 19 neither Mr McGlinn nor the Commission were required to apply Briginshaw;
• Mr McGlinn was entitled to reach a conclusion that Mr Rodger had bought a booster charge into the workplace;
• even if the booster charge was inert, bringing it into the workplace still constituted misconduct as it created a risk to both physical and psychological health of employees and the risk of reputational damage to ACTION;
• Mr Rodger conceded in evidence that it was a silly thing to do;
• the Commission was therefore entitled to find that Mr Rodger’s conduct was serious misconduct;
• in respect of the duelling pistols, the evidence was sufficient for Mr McGlinn to find misconduct on the grounds of the risk of psychological harm and reputational damage to ACTION;
• with regard to the .22 calibre rifle there was direct evidence of a witness having seen it which was supported by hearsay evidence, adding that regard should be had to that hearsay evidence as it added to the direct evidence;
• Mr Rodger’s conduct in bringing the booster device into the workplace was sufficient to find him guilty of serious misconduct, adding that it was not necessary to go to the firearms to be satisfied that there was a valid reason for the dismissal;
• it disagreed that Mr Rodger’s evidence was frank and compelling, noting that when faced with inconsistencies in his evidence Mr Rodger sought to blame his then lawyer on the basis that he had not been acting on his instructions;
• Mr Rodger conceded in his oral evidence that what he did was silly and that no one had instructed him to bring the items to work, adding that he had to take responsibility for his actions;
• it is the behaviour which needs to be wilful and deliberate not the misconduct, contending that in this case the behaviour was done wilfully and deliberately;
• the absence of an intention to hurt anyone did not mean that Mr Rodger’s conduct did not create a risk;
• the acetylene bomb incident relied upon by Mr Rodger to argue that his dismissal was harsh had little relevance to this case and did not reveal any inconsistency in terms of how Mr Rodger was treated; and
• Mr Rodger’s submission that any sanction imposed could be publicised was inconsistent with ACTION’s obligations under privacy law.
[27] In support of its submissions, ACTION relied on the decisions in David Waters v Goodyear Australia Pty Limited 20 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union21.
[28] In his witness statement Mr McGlinn 22 provided a detailed overview of the events leading up to Mr Rodger’s termination. Among other things, Mr McGlinn deposed that:
• after considering the Investigation Report, including all the evidence contained in the attachments, he was satisfied that the five allegations were proven on the balance of probabilities and constituted misconduct under Clause H6.5 of the Agreement;
• in summary he found Mr Rodger’s conduct to be a serious risk to the health and safety of Mr Rodger and all of the staff at the Belconnen workshop as well as being a serious risk to ACTION’s reputation, adding that the consequences of Mr Rodger’s bringing the items into the workshop could have been catastrophic;
• even if the devices were not real, the fact that the devices purported to be real had the potential to put fellow staff members into grave fear for their health and safety; and
• he considered the submissions made on Mr Rodger’s behalf in response to his Notice of Proposed Disciplinary Action and Suspension with Pay letter of 2 June 2017 but was not persuaded that any of them warranted departing from the proposed sanction of dismissal.
[29] Under cross examination Mr McGlinn was taken to the evidence relating to the allegation that Mr Rodger had brought a shotgun into the workplace and upon reviewing that material accepted that on the balance of probabilities there was no basis for his finding that Mr Rodger had done so. However, Mr McGlinn did not resile from his findings in respect the booster charges, black powder duelling pistols and .22 calibre rifle as set out in the Notice of Disciplinary Action letter. Beyond that Mr McGlinn attested inter alia that:
• he accepted that Mr Rodger had an unblemished employment record, adding that he was not aware of any other issues concerning Mr Rodger which warranted formal investigation;
• he did not agree that Mr Rodger’s dismissal was harsh, adding that he stood by his decision; and
• a decision to reinstate Mr Rodger would not be an embarrassment to him, stating that as it has done in the past ACTION would do all that it was required to do to implement any such Commission finding.
[30] Mr Steven Wright in his witness statement 23 deposed with regard to the acetylene bomb incident referred to in Mr Rodger’s witness statement that in that case the employee’s conduct was found to constitute misconduct. Mr Wright added that a sanction was imposed which included a reduction in classification and pay for a period of 24 months. Mr Wright further deposed that:
• ACTION had a lower tolerance for behaviour that created unnecessary or reckless health and safety risks to workers and members of the public;
• while health and safety had always been a priority for ACTION there was now an increased level scrutiny on the conduct of employees regarding health and safety in the workplace; and
• Mr Rodger’s conduct was entirely at odds with ACTION’s health and safety priorities, adding that there was no reasonable explanation for any staff member, particularly someone with 17 years’ service, to bring explosives or weapons (including replicas of such items) into the workplace.
[31] Key aspects of Mr Wright’s oral evidence included that:
• it would be obvious to all staff that it was inappropriate to have a booster charge at work;
• the delay in the reporting of Mr Rodger’s actions was unfortunate, adding that there would have been conversations at the workplace regarding the failure to promptly report the incidents; and
• with regard to the acetylene bomb incident at the Woden workshop, while it was of significance that the incident cause an injury he did not consider that case to more serious than Mr Rodger’s case for several reasons, including that acetylene was in the workplace as opposed to being imported into the workplace and he disagreed that the incident involved an explosion.
[32] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Rodger is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.”
[33] There is no dispute that Mr Rodger was dismissed, so s.385(a) of the Act is satisfied. Mr Rodger contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. ACTION is not a small business employer therefore s.385(c) is not relevant. The termination was not a case of redundancy so s.385(d) does not apply. Therefore, in determining whether Mr Rodger was unfairly dismissed, I must consider whether his dismissal was harsh, unjust or unreasonable as per s.385(b).
[34] In Rode v Burwood Mitsubishi 24 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd25. The following is an extract from the Full Bench’s decision in Rode.
“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:
“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” (Underlining added)
[35] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King) 26. In King the Full Bench, drawing on Moore J’s comments in Edwards v Guidice27, stated:
“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[36] In this case Mr Rodger acknowledged that he had brought an inert booster charge and replica duelling pistols into the workplace, however he disputed that the devices were dangerous or that he brought a rifle or shotgun into the workplace. As previously noted, in his oral evidence Mr McGlinn accepted that on the balance of probabilities there was no basis for his finding that Mr Rodger had brought a shotgun into the workplace.
[37] The evidence drawn from the statements provided by other employees in the context of both Mr McGlinn’s preliminary assessment and the subsequent investigation in respect of the items other than the shotgun which Mr Rodger is alleged to have brought into the workplace is summarised below.
Booster charge
• Mr Luke Hardie in a statement made on 13 February 2017 as part of Mr McGlinn’s preliminary assessment stated that about three weeks beforehand Mr Rodger had two cylinders in the workplace which Mr Rodger described as booster charges which would “level a car”. Mr Hardie also stated that Mr Rodger rolled one of the cylinders across the floor to him. 28 Mr Hardie did not subsequently provide a statement to the investigation.
• Mr Nathan Senior in his statement of 13 February 2017 stated that approximately three weeks earlier Mr Rodger rolled one of two cylinders marked “explosive” across the floor of the Electronics Section towards Mr Hardie, adding that Mr Rodger was showing the cylinders off and said something along the lines of they would “blow a car in half.” 29 In his statement of 20 April 2017 provided as part of the investigation Mr Senior stated that in the second half of January 2017 Mr Rodger had two cylinders which had a label he recognised as an explosive symbol. Mr Senior further stated that Mr Rodger had said “It is a real one but it is hard to set off”. Mr Senior also stated that he was not intimidated at the time as he believed the risk of the cylinders being detonated was very low. Mr Senior also deposed that he saw Mr Rodger rolling one of the cylinders on the floor towards Mr Hardie and that Mr Rodger told him on 16 February 2017 (i.e. after he had been suspended) that the booster charges were not real and that he had “thrown them in the lake”.30
• Mr Michael Ebsworth in a statement dated 13 February 2017 stated that about three weeks earlier Mr Rodger had two cylinders in his hand which Mr Rodger said were booster charges which would “blow or banana a car in half.” 31 In a statement made on 2 May 2017 as part of the investigation Mr Senior stated that when walking past Mr Rodger at work around mid-January 2017 that Mr Rodger he pulled out of his pocket a small cylinder which he said was a booster charge. Mr Ebsworth also stated that Mr Rodger said it was “only a training thing” adding that he could not confirm if they were real booster charges or not. Mr Ebsworth deposed that he did not feel intimidated by the incident.32
Duelling pistols
• Mr John Murphy, who is an ACT licensed firearms instructor who teaches at the Majura firing range, in a statement dated 30 April 2017 stated that within the previous twelve months Mr Rodger had brought into the workplace a pair of duelling pistols which he recognised to be genuine black powder percussion pistols. Mr Murphy further stated that he held one of the pistols in his hand and noted that the hammer appeared to operate normally and that he did not observe any barrel obstruction or device which would render the weapon inoperative 33.
• Mr Doug Farrer in a statement dated 11 May 2017 deposed on that one occasion in the past two years Mr Rodger showed him a pair of duelling pistols, adding that although the pistols appeared real he was not sure if they were operational and as he did not see any ammunition he did not consider the pistols to be dangerous or active. 34
.22 Calibre rifle
• Mr Nathan Senior in his statement of 20 April 2017 stated that some years ago Mr Rodger had brought a .22 calibre rifle into the workplace which appeared to be a real firearm 35.
• Mr Farrer in his statement of 11 May 2017 stated that one day in the last few years he heard from group discussions that Mr Rodger had brought some sought of rifle into work in the past 36.
[38] In addition to the above there is also the AFP’s email advice of 15 February 2017 to Mr McGlinn (see paragraph [9] above) which stated that “We do not believe he [Mr Rodger] has had or will have any items in his possession with the intention of hurting anyone”. I note however that it was not suggested by anyone that Mr Rodger intended to hurt anyone rather. ACTION’s primary concern related to the risk to health and safety created by Mr Rodger bringing these items into the workplace. For this reason, the advice is of little assistance in determining whether or not Mr Rodger’s conduct amounted to misconduct.
[39] With regard to Mr Rodger’s submission that the Commission should draw an adverse inference from ACTION’s failure to call any of the above employees as witnesses in this case, I am not prepared to do so. This is because each of the statements provided as part of the investigation include an acknowledgement that “the wilful provision of false information may constitute misconduct under the ACT Public Sector Management Act 1994.” 37 Nevertheless, ACTION’s failure to call the employees to give evidence limited both Mr Rodger’s and the Commission’s capacity to test those employees’ statements.
[40] Turning more specifically to the issue of Mr Rodger’s conduct, I will first consider the allegation that he brought a .22 calibre rifle into the workplace. First, I note that Mr Senior’s statement regarding this allegation provides no indication as to his knowledge/qualification to identify the calibre of the rifle. Second, Mr Senior also states that the incident occurred “some years ago”. I am therefore not confident as to the veracity of Mr Senior’s evidence regarding the rifle. ACTION submitted among other things that regard should be had to Mr Farrer’s hearsay evidence regarding the allegation. As can be seen from above, Mr Farrer’s hearsay evidence is quite vague as to when the incident occurred and very general in its description of the firearm. In my view it adds little, if anything, to Mr Senior’s evidence. Against that background and in the absence of more compelling evidence on this allegation I am not satisfied that Mr Rodger did bring a .22 calibre rifle into the workplace.
[41] In respect of the booster charge and duelling pistol allegations it is not disputed that Mr Rodger brought such items into the workplace. However, what is disputed is whether the booster charges were “live” and the duelling pistols were operational. In this regard the evidence is mixed. For instance, only Mr Ebsworth in his statement as part of the investigation indicates that Mr Rodger said at the time that the device was only a training thing, though Mr Senior stated that on 16 February 2017 (i.e. after Mr Rodger had been suspended) that Mr Rodger had said to him that the booster charges were not real. Further, I note that there were inconsistencies in Mr Rodger’s evidence. For example in his first witness statement Mr Rodger deposed that Messrs Hardie, Ebsworth and Senior were the only people who actually viewed what he took into the workplace, yet in his oral evidence he attested that he also showed the booster charge to Mr Farrer and that it was Mr Farrer and not Mr Hardie who was in the room when he rolled the device across the floor. That oral evidence is also inconsistent with the statement provided by Mr Senior as part of the investigation. As a result of the mixed and contradictory evidence, and in the absence of the opportunity to question the employees, I am unable to definitively determine whether or not the booster charges were inert. In respect of the duelling pistols, Mr Murphy’s evidence, given that he is a licensed firearms instructor, is quite compelling despite Mr Rodger being adamant that the pistols were replicas which were not operational. However, for the same reason as given above (i.e. conflicting evidence), I am unable to definitively determine whether or not the pistols were operational. Nevertheless I am satisfied that bringing the items into the workplace did create a risk to safety, particularly give the possibility that the items were live or operational. While it is clear from their statements that none of the employees who saw the charges/guns felt intimidated or concerned about them being in the workplace, this is in my view due to good fortune rather than the absence of any risk to safety. Other employees may have reacted very differently in the circumstances and may have legitimately been fearful for their safety.
[42] Mr Rodger acknowledged in his oral evidence that there was no reason for him to bring either item into the workplace. His action in doing in my view so comes within the definition of misconduct as set out in clause H6.5 of the Agreement which provides as follows:
“H6.5 For the purposes of this Section, misconduct includes any of the following:
a) the employee fails to meet the obligations set out in section 9 of the PSM Act 1994 (this includes bullying and harassment or discrimination);
b) the employee engages in conduct that has brought, or is likely to bring, the Directorate or ACTPS into disrepute;
c) …”
[43] More specifically I consider that Mr Rodger’s actions in bringing the booster charges and duelling pistols into the workplace, irrespective of whether they were live/inert or inoperable and in the absence of any legitimate reason for him bringing those items into the workplace, had the potential to bring ACTION and to a lesser extent the ACT Public Service into disrepute. To that end I note that Mr Rodger submitted that his conduct could be construed as misconduct.
[44] Clause H10 of the Agreement deals with Disciplinary Action and Sanctions and provides that
“H10.1 In circumstances where the head of service, following an investigation or full admission by the employee, determines that misconduct has occurred, and the head of service considers disciplinary action is appropriate, one or more of the following sanctions may be taken in relation to the employee:
a) …
e) termination of employment.
…
H10.3 Sanctions imposed under these procedures must be proportionate to the degree of misconduct concerned. In determining the appropriate sanction, the following factors must be considered:
a) the nature and seriousness of the misconduct;
b) the degree of relevance to the employee’s duties or to the reputation of the Directorate or the ACTPS;
c) the circumstances of the misconduct;
d) any mitigating factors, including any full admission of guilt; and
e) the previous employment history and the general conduct of the employee.”
[45] I note also that clause H1.2 of the Agreement provides that:
“H1.2 Managers/supervisors and employees have a common interest in ensuring that workplace behaviours are consistent with, and apply the values and general principles set out in section 9 of the PSM Act 1994 and the ACT Public Service Code of Conduct and Signature Behaviours. This involves the development of an ethical and safe workplace in which managers/supervisors and employees act responsibly and are accountable for their actions and decisions.”
[46] Section 9(2) of the PSM Act provides as follows:
“A public servant must not—
(a) behave in a way that—
(i) is inconsistent with the public sector values; or
(ii) undermines the integrity and reputation of the service; or …”
[47] Having regard to the above analysis also supports a finding that Mr Roger failed to meet his obligations under s.9 of the PSM Act.
[48] In summary, the above analysis supports a finding that Mr Rodger’s conduct in bringing the booster charges and duelling pistols into the workplace created a risk to safety, constituted misconduct as defined in the Agreement and was inconsistent with Mr Rodger’s obligations under the PSM Act. Taken together, these considerations support a finding that there was a valid reason for Mr Rodger’s dismissal.
(b) Whether the person was notified of that reason
[49] While Mr Rodger did not address this factor in his submissions, as previously mentioned at the hearing he advised the Commission that he no longer pressed his submissions regarding procedural fairness.
[50] ACTION submitted that the reasons for the termination were clearly set out in writing at Attachment A to Mr McGlinn’s Notice of Proposed Disciplinary Action and Suspension with Pay letter of 2 June 2017 and was supplemented by Mr McGlinn’s Notice of Disciplinary Action letter of 28 June 2017. This ACTION contended supported a finding that Mr Rodger’s dismissal was not unfair.
[51] Having particular regard to Mr McGlinn’s letters of 2 and 28 June 2017 does not point to Mr Thomas’ dismissal being harsh, unjust or unreasonable.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[52] In the hearing the Applicant accepted that he was given an opportunity to respond to the reasons for his dismissal.
[53] In short, ACTION contended that Mr Rodger had been given an opportunity to respond to the allegations regarding his conduct and that therefore this factor supported a conclusion that his dismissal was not unfair.
[54] Against that background, this factor does not point to Mr Thomas’ dismissal being harsh, unjust or unreasonable.
(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
[55] Mr Rodger did not address this consideration in his submissions.
[56] ACTION submitted that Mr Rodger chose not to be interviewed as part of the investigation and subsequently provided written responses through his legal representative to both the investigator and Mr McGlinn. As such, ACTION contended that there was no unreasonable refusal by it to allow Mr Rodger to have a support person present and that this supported a conclusion that Mr Rodger’s dismissal was not unfair.
[57] Again this factor does not weigh in favour of a finding that Mr Rodger’s dismissal was unfair.
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[58] Both Mr Rodger and ACTION submitted that this consideration was not relevant as the dismissal related to Mr Rodger’s conduct.
[59] Against that background, I do not consider this factor to be relevant in this case.
(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
[60] ACTION accepted in its submissions that it is a large employer with dedicated human resource management expertise, contending that overall these considerations were either neutral or supported a conclusion that Mr Rodger’s dismissal was not unfair.
[61] I consider these factors to be neutral considerations in this case.
(h) Any other matters that FWC considers relevant
[62] Mr Rodger submitted that having regard to the circumstances in which his conduct occurred and his 17 years of unblemished good conduct, the dismissal was too harsh a consequence. It was not disputed that Mr Rodger was a longstanding employee with an unblemished employment record. I consider this to be a relevant consideration.
[63] Mr Rodger also contended that his dismissal was harsh due to his personal circumstances, i.e. the difficulty of finding employment as an electronics technician. While Mr Rodger’s evidence was that job prospects in his chosen field were very limited, he provided no probative evidence to corroborate or substantiate that contention. Mr Rodger’s contention is undermined by his evidence that he had not applied for other jobs following his dismissal as he had decided to focus on his own business. In the absence of any corroborating material and evidence of unsuccessful attempts to test the job market I am not satisfied that Mr Rodger’s contention is made out and therefore do not consider this factor to be a relevant consideration.
Summary
[64] Consistent with the decision in DP World Sydney Limited v Mr Stephen Lambley 38 determining whether Mr Rodger’s dismissal was harsh, unjust or unreasonable entails a weighing up exercise which involves weighing the gravity of the misconduct against any mitigating circumstances and other relevant matters weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct. I agree with and adopt that approach in this case.
[65] Further, the leading statement of principle regarding the meaning of the expression “harsh, unjust or unreasonable” is the statement in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 39(Byrne):
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” (Underlining added)
[66] I have previously determined that Mr Rodger’s conduct provided a valid reason for his dismissal. Beyond that, most of the factors in s.387 of the Act either do not point to Mr Rodger’s dismissal being unfair or are either not relevant or neutral considerations in this case. However, Mr Rodger’s unblemished employment record over 17 years is a relevant consideration. Whether the booster charges were inert and the duelling pistols were inoperable does not in my view diminish the gravity of Mr Rodger’s conduct in bringing those items into the workplace. The fact of the matter is he had no legitimate reason to do so and by doing so he created a risk to safety, given the possibility that the items were live or operable. Mr Rodger’s actions also had the potential to bring ACTION into disrepute and were inconsistent with his obligations under the PSM Act. This constitutes misconduct under the Agreement which in my view warranted dismissal and outweighs his previously unblemished employment record.
Conclusion
[67] For all the above reasons, I find that Mr Rodger’s dismissal was not unfair in that it was not harsh, unjust or unreasonable. Accordingly his application will be dismissed. An Order to that effect will be issued in conjunction with this decision.
Appearances:
J. Ronald counsel for the Applicant.
P. Bindon counsel for the Respondent.
Hearing details:
2018
Canberra
August 22 and 23.
Printed by authority of the Commonwealth Government Printer
<PR702282>
1 Exhibit 3
2 AE407927
3 Exhibit 1 at page 27 of the attachments
4 Exhibit 3 at Attachment 2
5 Ibid
6 Ibid at page 64 of the attachments
7 Exhibit 1 at Attachment 19
8 Exhibit 5 at Annexure IM1
9 Ibid at Annexure IM2
10 Ibid at Annexure IM3
11 Ibid at Annexure IM4
12 (1959) 101 CLR 298
13 (1996) 142 ALR 681
14 (2013) 238 IR 1
15 (1995) 185 CLR 410 at p 465-6
16 (1938) 60 CLR 336
17 Exhibits 1-3
18 (2011) 209 IR 1
19 (2014) 226 FCR 555
21 Print S9632
22 Exhibit 5
23 Exhibit 6
24 Print R4471
25 (1995) 62 IR 371
26 Print S4213
27 (1999) 169 ALR 89 at 92 per Moore J
28 Exhibit 5 at Attachment 1 to Annexure IM1
29 Ibid at Attachment 1 to Annexure IM1
30 Ibid at Attachment 6 to Annexure IM1
31 Ibid at Attachment 1 to Annexure IM1
32 Ibid at Attachment 8 to Annexure IM1
33 Ibid at Attachment 5 to Annexure IM1
34 Ibid at Attachment 10 to Annexure IM1
35 Ibid at Attachment 6 to Annexure IM1
36 Ibid at Attachment 10 to Annexure IM1
37 Ibid at Attachments 6, 7 and 10 to Annexure IM1
39 (1995) 185 CLR 410 at p 465-6