[2019] FWC 1517

The attached document replaces the document previously issued with the above code on 8 March 2019.

A typographical error in the first sentence of paragraph [123] has been corrected to read ‘Mr McCouaig’.

Associate to Deputy President Anderson

Dated 8 March 2019

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Andrew McCouaig
v
Colliers International (SA) Pty Ltd T/A Colliers International
(U2018/8823)

Application for an unfair dismissal remedy – alleged failure of duty – alleged poor performance – no valid reason - procedural unfairness - dismissal harsh, unjust and unreasonable – reinstatement inappropriate – compensation ordered

[1] Mr Andrew McCouaig (the applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Colliers International (SA) Pty Ltd (‘Colliers’ or ‘the employer’). He claims to have been unfairly dismissed on 9 August 2018. At the date of dismissal he was employed as a facilities manager.

[2] Colliers oppose the application.

[3] No jurisdictional issues arise in determining this matter.

[4] On 5 October 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It did not resolve. It was referred to me for hearing and determination.

[5] On 17 October 2018 I directed that the hearing deal with all issues in dispute (merits and remedy) and made directions for the lodgement of materials.

[6] Interlocutory issues arose prior to the hearing. Mr McCouaig sought orders for the production of documents; for certain persons to give evidence; and for further particulars. On 16 November 2018 I conducted a hearing on these interlocutory matters. I dismissed an application by Mr McCouaig under section 590(2)(c) for the production of documents and granted in part his application under section 590(2)(a) for a person to attend the hearing to give evidence. I made orders to this effect on 19 November 2018. My reasons for decision were recorded in the transcript of proceedings of 16 November 2018 and I need not repeat them.

[7] I heard the matter by formal hearing on 4 and 5 December 2018, 22 and 23 January 2019 and 26 and 27 February 2019. The applicant was represented by his father, Mr Robert McCouaig. Colliers was represented by in-house general counsel Mr Robert Wall. At the conclusion of the hearing I reserved my decision.

[8] I received oral and documentary evidence from both parties. Nine persons in total gave evidence, plus a tenth whose statement was admitted by consent. A written closing submission in four parts was presented by Mr McCouaig.

[9] Mr McCouaig gave evidence in his own right. His wife Dianne McCouaig also gave evidence as did former employees of Colliers Paul Duldig (former Associate Director, Facilities) and Kyla Daly (former Asset Manager). Mr McCouaig tendered a statement by Mr Markus Trezise, an officer of a client of Colliers (Gallagher Bassett Services Pty Ltd). Mr Trezise’s statement was admitted into evidence without being required for cross examination.

[10] Colliers called evidence from five current officers: James Young (State Chief Executive), Lyn Gray (State Product Director), Nik Podnar (Head of Facilities Management), Mia Laird (Assistant Facilities Manager) and Kate Narkiewicz (Executive, Human Resources). Ms Laird gave evidence consequent on my order of 19 November 2018.

[11] The circumstances by which Ms Narkiewicz, a current officer of Colliers, gave evidence were unusual. Pre-hearing, Colliers had not filed a witness statement from Ms Narkiewicz. In his opening, Mr Robert McCouaig submitted that Ms Narkiewicz was a relevant witness and foreshadowed that he would seek an order for her attendance. At the conclusion of Mr Young’s evidence, counsel for Colliers advised that the employer sought leave to call Ms Narkiewicz based upon what counsel described as “the frankly unsatisfactory and unreliable evidence given by Mr Young” 1. By consent, I granted permission. Ms Narkiewicz subsequently filed a witness statement which attached numerous relevant documents some of which had not previously been produced, and gave oral evidence.

[12] On matters of detail, there were significant differences between the evidence of witnesses. Relevantly, those differences emerged not just between the evidence of Mr McCouaig and company witnesses, but between company witnesses themselves, especially Mr Podnar, Ms Narkiewicz, Ms Gray and Mr Young.

[13] Mr McCouaig urged me to conclude that a number of persons called by Colliers and especially Mr Podnar, Ms Narkiewicz and Ms Gray were untruthful and fabricated evidence 2. I do not draw conclusions of such a sweeping nature. To do so would be unfair to the witnesses particularly those whose evidence or portions of evidence I consider reliable. Some of the inconsistencies may have been a consequence of faded recollections due to the effluxion of time and a lack of attention to pre-prepared witness statements. However, some evidence was selective and evasive. I prefer to draw conclusions about the reliability of specific evidence of particular witnesses especially where I consider it to have been inconsistent, implausible, uncorroborated or subject to a particular gloss.

[14] Mr McCouaig also urged me to conclude that Colliers withheld relevant documentary evidence. One unsatisfactory element of this litigation was the slow drip-feed of documentary material produced by Colliers. After multiple interlocutory proceedings and six hearing days gaps in documentary evidence still remain; some emails or notes that were said to exist were apparently found by witnesses not to exist and others only produced part way through the hearing once Colliers decided to call Ms Narkiewicz. As is apparent from these reasons, the centrality of Ms Narkiewicz in the events leading to dismissal and the dismissal itself make it difficult to understand why Ms Narkiewicz was not identified as a witness at the pre-hearing stage. Colliers failure to do so potentially prejudiced Mr McCouaig. By the time Mr McCouaig saw Ms Narkiewicz’s witness statement and the documents attached to it he had already given his evidence. Although Mr McCouaig could have (but did not) make an application to be recalled, it is less than desirable for an employer with sophisticated human resource systems such as Colliers to hedge its bets in this way.

[15] Defending unfair dismissal claims and producing documents weeks or months after a dismissal may be viewed by some employers as costly, time consuming and inconvenient. That however is the consequence of parliament having provided jurisdictional access for dismissed employees to contest their dismissal. In an endeavour to provide an accessible forum for such claims and minimise costs, the Commission does not conduct proceedings with the same degree of formality as courts nor apply all legal technicalities of courts. For example, my pre-hearing directions for the production of documents were not orders for general discovery but orders for production of those documents a party seeks to rely upon. Limited discovery orders of this type are intended to bring relevant material to the attention of parties in order to facilitate a fair and efficient hearing whilst minimising the number of documents that may need to be searched, produced and brought into evidence. Directions of this type are likely to minimise cost compared to the wider search and production obligations that accompany general discovery orders. However, should it be the practice that parties hedge their bets with the selection of relevant witnesses or documents a possible response is either that permission to allow such witnesses or documents mid-hearing will be refused (potentially affecting the accuracy of fact-finding and decision-making) or that pre-hearing orders for general discovery will need to be made. Such outcomes may add to cost, including for employers defending claims.

[16] Mr McCouaig was honest and straightforward in his evidence. He displayed a quiet and shy demeanour, albeit occasionally casual. On some issues, his recall was less instinctive and specific than matters set out in detail in his witness statement.

[17] Mrs McCouaig’s evidence was limited and presented reliably.

[18] Ms Daly and Mr Duldig each gave evidence in a direct manner. Although their evidence concerned historic matters (each had left Colliers employ well prior to Mr McCouaig’s dismissal) it can be relied upon.

[19] Ms Gray gave her evidence with confidence but under cross examination was defensive about the views she formed of Mr McCouaig’s performance and conduct. She was overly keen to disclaim direct or indirect responsibility, knowledge or involvement in Mr McCouaig’s dismissal. On these issues she was selective and evasive. I treat her evidence with caution given the gloss placed on it.

[20] Ms Laird’s evidence was of limited scope. It was presented reliably.

[21] Mr Young gave his evidence conscientiously but aspects of his recall were vague and inconsistent. I treat his evidence with a certain degree of caution but do not “reject it in its entirety” as was submitted by counsel for Colliers 3 whereas Mr McCouaig (somewhat unusually given that Mr Young was said to be the dismissal decision-maker) relied on parts of it. In his closing submission counsel for Colliers indicated that the “unreliability” of Mr Young’s evidence was not a product of untruthfulness but a misplaced desire to be helpful and lack of attention to his witness statement. I tend to agree. As a busy State Chief Executive Mr Young no doubt has many things on his mind, and events concerning one employee four months prior were clearly not top of mind. However even making due allowance, his recall of events, who he spoke to and what was known to or by him was inconsistent. His evidence on a most fundamental issue - whether he was or was not the decision-maker who authorised the termination of Mr McCouaig’s employment - was vague and circular. However, other aspects of his evidence were plausible. Inconsistency with the evidence of other Colliers witnesses does not necessarily mean that his evidence is to be discounted for that fact alone, especially where it is plausible and consistent with my broader findings and where the evidence of others is less convincing.

[22] Ms Narkiewicz presented her evidence professionally but with a certain selectiveness. A considerable portion of her evidence was reliable though inconsistencies emerged between evidence in her witness statement, the evidence of Mr Podnar and Mr Young, and evidence under cross examination. I treat her notes of the ‘dismissal meeting’ on 9 August 2018 4 with some caution. Her evidence as to whether the content of this document was varied by her (as distinct from read) once proceedings commenced was vague. Her evidence of whether Mr McCouaig made admissions prior to dismissal and why she believed that admissions had been made was selective.

[23] Mr Podnar gave his evidence clearly but became uncomfortable when cross examined at length. When confronted with differences between his evidence and documentary evidence, the evidence of Mr McCouaig or the evidence of other company officers he was defensive and progressively became less consistent. His evidence of when he first knew of the ‘fire incident’ and what he told other company officers about when he first became aware of that incident was vague and shifted ground under cross examination. There was an element of gloss in Mr Podnar’s evidence which downplayed his knowledge of the ‘fire incident’ on 5 August and the impression he allowed others to form about Mr McCouaig’s state of knowledge. Although some degree of caution is required in considering these critical matters, other parts of Mr Podnar’s evidence (for example, the counselling and performance meetings with Mr McCouaig) can be relied upon especially where they are corroborated by reliable documentation.

[24] Where relevant to my determination, I make findings based on the demeanour of witnesses, the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating evidence, and the inherent plausibility of versions of events.

[25] Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable. I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:

“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 5

The Facts

[26] I make the following findings.

Mr McCouaig’s employment

[27] Amongst its business operations, Colliers manages commercial, industrial and residential property throughout Australia, including in the Adelaide central business district. It employs facilities managers who form part of its Real Estate Management (REM) team. Facilities managers are allocated a portfolio of buildings to manage and liaise with owners and commercial tenants to address maintenance issues, manage risk, provide access and egress, engage contractors and the like.

[28] Mr McCouaig was employed by Colliers as a facilities manager in July 2016 6. He was considered for employment at the suggestion of Mr Podnar with whom he played sport. Mr McCouaig had approached Mr Podnar for work after being terminated from a previous role in the industry.

[29] Mr McCouaig was tasked with managing a portfolio of buildings in the Adelaide CBD. He continued in this role for two years and two months, until dismissed. Over this time he reported to managers (variously titled) Paul Duldig (until August 2017) and then Nik Podnar (until dismissal). Mr Podnar had worked alongside Mr McCouaig in a comparable role and was then promoted to replace Mr Duldig. Although not Mr McCouaig’s direct report, a more senior South Australian member of the REM team Lyn Gray (to whom Mr Podnar reported) took an active role in assessing performance of the facilities managers from late 2017, including Mr McCouaig. Ms Gray said she had become aware of general concerns (discussed nationally) about the Adelaide facility management 7 (including Mr McCouaig8) but had not specifically followed up this chatter other than assuming more hands-on oversight.

[30] No concerns were registered with Mr McCouaig’s work in the first eighteen months of employment, until the end of 2017. The evidence is that he and Mr Duldig got on well. Mr McCouaig enjoyed his job. Ms Gray and Mr Podnar said in evidence that in this early period they considered Mr McCouaig “average but not a standout” 9. Mr Young said he was a “reasonably productive team member”10.

[31] Once Mr Duldig left Colliers, Mr McCouaig had greater interaction with Ms Gray. Their relationship deteriorated. Mr McCouaig did not get on with her and he believed that other employees past and present felt the same. He tried to have as little to do with her as possible but there were occasional encounters, including an incident on 15 February 2018 when they passed in the corridor. Mr McCouaig did not say ‘hello’ prompting Ms Gray to audibly say in a sarcastic tone ‘Hi Lyn how are you? I’m fine thanks Andrew, how are you?” Mr McCouaig’s evidence was that he considered this shocking, unprofessional and immature 11. In her evidence Ms Gray did not deny a brief encounter along those lines but considered it innocent banter.

[32] Although Mr McCouaig still related well with Mr Podnar, their relationship changed as Mr Podnar became his direct report.

[33] A regularly scheduled six-month appraisal of Mr McCouaig was held in February 2018 (performance appraisal #1). It was conducted by Mr Podnar. Ms Gray attended. There was no specific criticism or direct follow up.

[34] In March 2018 Mr Podnar and Ms Gray received feedback from two or three property managers concerning Mr McCouaig’s work suggesting a lack of satisfactory communication about actionable work. Mr Podnar and Ms Gray considered the feedback serious enough to warrant an informal meeting with Mr McCouaig. The meeting was held on 15 March. Mr McCouaig was told in general terms that complaints had been made about his inadequate communication. Although I consider Ms Gray’s claim that Mr McCouaig was “hostile” to be an overstatement, I accept that he became defensive, wanted to know who had complained about him, asserted that he was doing more work in 2018 than 2017 and wanted a salary increase. Although Mr McCouaig did not take well to having his performance questioned, I find that this was a counselling session in the ordinary course of business over a genuine issue of concern. Mr McCouaig was informed, in a general sense that his communication with other managers needed to improve (the first counselling meeting).

[35] Further instances of tension between Mr McCouaig and Ms Gray arose in April and May 2018. On 18 May Mr McCouaig considered that Ms Gray was making unreasonable requests by email for explanations of a tenant concern, when Mr McCouaig and Ms Gray sat metres from each other and could have spoken about the issue. A second ‘incident’ concerning Ms Gray occurred on 22 May. Without notice to Mr McCouaig, Ms Gray attended a building in the Adelaide CBD under Mr McCouaig’s management with a Sydney manager. Mr McCouaig happened to be at the location. Ms Gray did not involve Mr McCouaig in the tour or acknowledge his presence. Mr McCouaig said he felt left out and belittled.

[36] Across April and May 2018 Mr Podnar observed Mr McCouaig’s work attitude and performance fluctuate. Occasionally it would improve (and Mr McCouaig was at least once told over coffee that it had 12) but then deteriorate. On 24 May 2018, a further informal meeting (called without prior notice by Ms Gray) was held between Mr McCouaig and Mr Podnar and Ms Gray (the second counselling meeting). Ms Gray bluntly put a number of concerns to Mr McCouaig seeking yes or no answers. Mr McCouaig again became defensive. Mr Podnar indicated that he wanted Mr McCouaig ‘on the team’ but that he needed to work towards improving his attitude and communication.

[37] On 28 May Mr McCouaig emailed the Operations Manager of the HR department (Sarah Beagley) setting out concerns at the conduct of Ms Gray, indicating that her management of his performance was taking a toll on him and requesting that the national human resource (HR) department “take action”. 13

[38] On 29 May Ms Beagley advised Mr McCouaig of the steps he needed to take under company policy to initiate a formal bullying investigation into Ms Gray’s conduct. She also advised him that Ms Gray would not be part of his scheduled performance reviews. 14

[39] After speaking to Ms Gray and Kayleigh Drummond in Colliers HR department, Mr Podnar decided to place Mr McCouaig on a formal Performance Management Plan (PMP). A meeting with Mr McCouaig was held on 30 May attended by Mr Podnar and Ms Drummond (performance management meeting #1). According to a meeting record 15, six areas of concern were identified. Mr Podnar repeated that he wanted Mr McCouaig ‘on the team’ but his negative attitude needed to change. Mr McCouaig took exception to the performance criticisms, asserted that Lyn Gray was to blame, and said that he would be making a bullying complaint. I accept Mr Podnar’s evidence that at this meeting Mr McCouaig became angry, swore at Mr Podnar and demonstrated indifference to the PMP16. I also accept Mr Podnar’s evidence that the next day (31 May) Mr McCouaig rudely accused another manager of having made complaints about him17.

[40] I also find that during performance management meeting #1 Mr McCouaig said that he was looking for another job and didn’t want to be at Colliers, or words to that effect. This accords with Mr McCouaig’s evidence to the Commission that from the time he started to experience problems with Ms Gray he considered resigning.

[41] By letter dated 6 June 2018 Mr McCouaig was given a ‘first written warning’ and placed on a formal PMP with the first follow-up PMP review scheduled for 18 June 18 (later moved to 25 June after Mr McCouaig asked for and was granted a week’s leave mid-June due to the situation “eating me up”.19)

[42] A PMP review meeting was held on 25 June (performance management meeting #2). Mr Podnar had observed improvement in Mr McCouaig’s performance and attitude, and told him so. A fresh PMP dated and signed 25 June was prepared which indicated that on each of the performance criteria (dismissive behaviour; teamwork; presentation; attitude; due process) Mr McCouaig was “meeting expected standards of performance” 20.

[43] In response to an emailed query from Mr McCouaig the previous day, on 28 June Ms Drummond advised Mr McCouaig that a formal bullying investigation had not yet commenced because he had not asked for one. She referred him to Ms Beagley’s email of 29 May. Alluding to the 25 June meeting, she also added “I was very pleased to hear on Monday that things are going well and there has been a significant improvement”.

[44] On or about 28 June Mr McCouaig made a formal complaint to Colliers alleging bullying by Ms Gray. The complaint was referred to an officer of the HR department (Ms Fischer-White) for investigation. Mr McCouaig provided further information on 6 and 9 July. Ms Gray (and others including Mr Podnar) were interviewed. A report was then prepared and submitted to Mr Young (the bullying investigation report).

[45] On 18 July the outcome of Mr McCouaig’s bullying complaint was made known to him by Ms Fischer-White. The investigation “was unable to substantiate the allegations due to conflicting versions of events and insufficient corroborating information” 21. It acknowledged “communication challenges” between Ms Gray and Mr McCouaig. Mr McCouaig was advised that Mr Young, the State Chief Executive, had agreed to facilitate mediation between the two22. A mediation meeting was subsequently scheduled for Monday 6 August.

[46] Colliers conduct regular staff appraisals which involve completion by employees of a self-assessment tool (My Plan) and then discussion of its results with a line manager. Mr McCouaig’s next appraisal was due in July 2018. Notwithstanding already being on a PMP, this process occurred. In mid-July Mr McCouaig completed the self-assessment 23 and discussed it with Mr Podnar. In his self- assessment Mr McCouaig described his work activities and output in a positive light. In subsequent discussions (performance appraisal #2), Mr Podnar told Mr McCouaig that he was doing well and that his positive self-assessment was “valid”24.

[47] Mr McCouaig responded to the bullying investigation report by email on 26 July. He advised the HR department (Ms Beagley) that he considered the report “manifestly inadequate”. He requested that certain conclusions and criticisms of him be reviewed. Ms Beagley agreed to do so. He concluded:

“To add further contradiction to all the performance concerns made against me, I have just completed my latest My Plan meeting with Nik and, according to Nik, I am meeting all expectations with regard to my KPIs.” 25

[48] An electrical shutdown in part of the Adelaide CBD on Sunday 22 July resulted in power loss to two buildings within Mr McCouaig’s portfolio. At lunchtime on that Sunday, after receiving a call from a tenant, Mr McCouaig raised an urgent work order for an electrician. However, he did not inform the Colliers property manager nor Mr Podnar. Nor did he take further calls that afternoon from the tenant as he had no updated information to provide. Mr Podnar considered this a failure of duty and a repeat of conduct consistent with his previous concern at Mr McCouaig’s lack of communication. It was added to the PMP.

[49] A further PMP review meeting was held on 31 July (performance management meeting #3). I accept Mr Podnar’s evidence that Mr McCouaig was defensive and negative at this meeting, and admitted, after initially denying, that he had been aware of the electrical shutdown on 22 July. Criticism was also made of an alleged failure by Mr McCouaig to adequately communicate about the handover of facilities on 25 July (in Mr Podnar’s evidence he conceded this criticism was in retrospect misplaced). A further PMP review was scheduled for 14 August.

[50] Following the PMP meeting of 31 July, and without notice to Mr McCouaig (but after discussion between Mr Podnar and Ms Narkiewicz) Mr McCouaig was sent a letter dated 31 July 2018 (received on 1 August 2018) in the form of a “second and final warning”. The warning related to the performance and conduct matters that had been discussed at the 31 July meeting. No reference to the possible or imminent sending of a second warning was made at the meeting or recorded in the meeting notes 26.

[51] On 3 August 2018 Mr McCouaig emailed Mr Podnar in the following terms:

“In light of the seriousness of the warning I have received please provide feedback to me each and every day via email cc’ing to Kate to advise on my progress and compliance with required duties. I would hate for there to be any surprises on August 14th.”

[52] Mr McCouaig’s evidence, which I accept, was that he sent this email because he was concerned at his job security and believed that he was being set up for dismissal. On receiving the 3 August email, Mr Podnar took Mr McCouaig aside and in a brief but friendly conversation asked him if he was still thinking of leaving Colliers and whether he had found another job.

[53] The next Mr McCouaig learnt about his employment was the day he was called to a meeting (9 August) and later that day dismissed.

The Fire Incident

[54] Amongst Mr McCouaig’s portfolio of commercial property, he was facilities manager for Wyatt House in the Adelaide CBD.

[55] On Sunday 5 August 2018 at approximately 6.57pm a fire was set alight in a dumpster bin in a laneway adjacent to Wyatt House causing building alarms to activate, smoke to enter the building and prompt attendance by the South Australian Metropolitan Fire Service (MFS) and police.

[56] A significant issue of contest in this matter is whether Mr McCouaig was contacted by or spoke to the MFS that Sunday evening. I make findings on that point in considering whether there was a valid reason for dismissal.

[57] Gallagher Bassett Services Pty Ltd is a tenant in Wyatt House. Its Workplace Health and Safety Manager is Markus Trezise. Mr Trezise is also chief fire warden for the building.

[58] It is the uncontested evidence of Mr Trezise 27 that at 7.50pm on 5 August he received a telephone call from the MFS informing him of the fire at Wyatt House, that the MFS had removed smoke through the ventilation system and re-set the fire alarms. Mr Trezise also told the MFS that he was going on leave the following day.

[59] At 7.57pm Mr Trezise sent an email to six persons from Gallagher Bassett and Colliers, including Colliers officers Nik Podnar and Mia Laird 28. It read:

“Dear all,

Please note that there was a fire tonight in the alleyway next to Wyatt Street, SAPOL and Fire Brigade attended, of the smoke has been removed from the building and the fire alarms have been cleared however, there may be some residual smell first thing in the morning.

SAPOL are following up on the offender, who was seen running from the scene.

Markus Trezise

WHS Manager

Gallagher Bassett Services Pty Ltd”

[60] Mr Trezise did not send or copy the email to Mr McCouaig.

[61] At 8.04pm Mr Podnar replied to Mr Trezise:

“Hi Markus

Thank you for informing us and we will complete an incident report and review

Regards

Nik Podnar

Facilities Manager

Colliers International”

[62] Mr Podnar did not did not send or copy the email to Mr McCouaig.

[63] At 8.08pm Mr Trezise emailed Mr Podnar as follows:

“Thanks Nik.

I am on leave from tomorrow until 3 September. I have asked for another person to be the contact while I am away.

Markus Trezise

WHS Manager

Gallagher Bassett Services Pty Ltd”

[64] Mr Trezise did not send or copy the email to Mr McCouaig.

[65] At 8.16pm Mr Podnar replied to Mr Trezise:

“Hi Markus

Have a great holiday and I appreciate your diligence. I will inform the designated contact and Ian Brookson of residual developments.

Regards

Nik Podnar

Facilities Manager

Colliers International”

[66] Mr Podnar did not did not send or copy the email to Mr McCouaig.

[67] The following morning, Monday 6 August at 7.18am Mr Trezise sent Mr Podnar a brief email “Thanks Nik”. It was not sent nor copied to Mr McCouaig.

[68] At approximately 8.30am on 6 August, whilst at work in the Colliers office, Mr McCouaig received a call from a Wyatt House tenant advising of a heating problem. He promptly took steps to have that issue attended to.

[69] Between 9am and 10am on 6 August Mr McCouaig received a telephone call from the MFS whilst at work in the Colliers office. The MFS officer indicated that as a result of attending to a fire at Wyatt House the previous evening gas had been isolated (affecting the heating) and fire panel settings restored.

[70] A brief discussion then ensued between Mr McCouaig, Mr Podnar and Ms Laird. Each sit in close proximity to the other. There is a difference between the evidence of Mr McCouaig and Mr Podnar as to how this discussion was initiated. I prefer the evidence of Mr McCouaig as to how the discussion transpired. His evidence is more consistent with the evidence of Ms Laird 29 that it was a conversation Mr McCouaig initiated. Immediately following the call from the MFS, Mr McCouaig turned to Mr Podnar and Ms Laird who were seated nearby and asked whether they knew of a fire the previous evening at Wyatt House. Mr Podnar and Ms Laird both said they did. Mr McCouaig said that he did not. Ms Laird said that there had been an email from Mr Trezise of Gallagher Bassett the previous evening. Mr McCouaig asked Ms Laird to forward the email to him. She did so.

[71] Nothing more was said to Mr McCouaig about the fire incident until Thursday 9 August.

[72] Mr Podnar was sceptical of Mr McCouaig’s denial that he did not know of the fire incident until that (Monday) morning. He believed protocols were that the Colliers facilities manager (Mr McCouaig) would have been contacted by the fire authorities the previous evening and that it was the responsibility of that Colliers manager to escalate the issue to the attention of more senior Colliers managers (such as himself) and Wyatt House tenants. He was unhappy and concerned that he had learnt of the fire incident from a tenant, not from his facilities manager. Mr Podnar relayed his concerns of possible inaction by Mr McCouaig to Ms Gray and then to Mr Young 30. It was agreed that he would make inquiries of the MFS to ascertain the facts.

[73] Mr Podnar telephoned the MFS and asked for information about contact they made the previous evening concerning the Wyatt House fire.

[74] At approximately 1.38pm on Monday 6 August Mr Podnar was sent an Incident Report of the Wyatt House fire by the MFS. That Incident Report included the following: 31

“Dumpster on fire in laneway caused alarms to activate in adjoining building all circuits investigated and reset

Prevented spread into building, SAPOL investigating, witness saw person running from scene. Smoke ventilated from building, management – Andrew McCouaig advised of attendance”

[75] That afternoon Mr McCouaig was scheduled to meet Mr Young and Ms Gray for the mediation session arising from his bullying complaint. The meeting went ahead, chaired by Mr Young. I accept Mr Young’s meeting notes 32 to be a reasonable summary. Ms Gray referred to the alleged negative attitude of Mr McCouaig, and Mr McCouaig in turn referred to the bullying conduct by Ms Gray and how it made him feel. The meeting concluded inconclusively but with a suggestion by Mr Young that each allocate time to privately meet again and work through their communication concerns.

[76] Although both Ms Gray and Mr Young were aware of the Wyatt House fire incident and of Mr Podnar’s concern at possible inaction by Mr McCouaig, neither mentioned this to Mr McCouaig formally or informally.

[77] Unknown to Mr McCouaig, Mr Podnar around this time spoke to Ms Narkiewicz in the HR department about his concerns. That Monday afternoon he sent Ms Narkiewicz an email which attached both the MFS Incident Report, and the email trail from Mr Trezise the previous evening. He foreshadowed speaking to Ms Narkiewicz about the matter the following day.

[78] On Tuesday 7 August Mr Podnar spoke to Ms Narkiewicz at some length about the fire incident. He expressed the view that he considered the Incident Report to be evidence that the fire authorities did in fact contact Mr McCouaig on the Sunday evening, and that Mr McCouaig had failed to alert Colliers or the tenants, and that this failure was a serious breach of duty, and was a repeat of past counselling and warnings at his lack of communication. They agreed that a meeting would be convened urgently to put the allegation to Mr McCouaig and seek his response. It was also agreed that the State Chief Executive Mr Young would be asked to attend as “the ultimate decision maker in relation to the Applicant’s continuing employment”. 33 They agreed the meeting would be held on Thursday 9 August at 9.30am. They considered the matter to be of such seriousness that it could not wait until the PIP meeting already scheduled for the following week 14 August.

[79] On Tuesday 7 August, despite being at work, Mr McCouaig was not informed of the meeting that was being arranged for the Thursday. Mr McCouaig did however overhear the end of a conversation between Mr Podnar and Ms Gray. He observed Mr Podnar walk out of a meeting room and overheard Ms Gray say words to the effect “it cannot wait until next week”. Although Ms Gray could not recall saying so 34 her evidence was vague and unconvincing. Equally implausible was her claim that if she had said words to that effect then she was “probably talking about…properties”, and not Mr McCouaig. This evidence reflected an exaggerated attempt by Ms Gray to distance herself from even indirect association with the events leading to Mr McCouaig’s dismissal. I prefer to accept the evidence of Mr McCouaig that these words were said. Although not able to specifically recall, Mr Podnar under cross examination accepted that this may have been said. I also consider it a safe inference that this was a reference by Ms Gray to her view that confronting Mr McCouaig with the allegation could not wait until the already scheduled 14 August meeting.

[80] On Wednesday 8 August Mr McCouaig was absent on a day of pre-arranged leave.

[81] On Wednesday 8 August Mr Podnar met with Ms Gray to provide a regular weekly update. I am satisfied on Mr Podnar’s evidence 35 that there is a high degree of probability that matters relating to Mr McCouaig were discussed at that time, despite Ms Gray’s evasive evidence on that score.

[82] On Wednesday 8 August at approximately 12.03pm Ms Narkiewicz sent an outlook calendar invitation to (the absent) Mr McCouaig, to Mr Podnar and to Mr Young for a meeting on Thursday 9 August at 9.30am (SA time). She also sent an accompanying email as follows: 36

“Dear Andrew

Nik Podnar, James Young and I wish to meet with you tomorrow to discuss your performance in relation to the fire incident that occurred on 5 August 2018 at Wyatt House.

The purpose of this meeting is to discuss concerns with your communication of the incident and to give you an opportunity to respond and ask any questions.

You are welcome to bring a support person along to the meeting. The role of a support person is to provide you with emotional support. They are not there to act as an advocate on your behalf.

At the conclusion of the meeting, a decision will be made as to what action is appropriate in the circumstances. This may include a written warning or further training. Alternatively, it may be decided that no further action is necessary.

To ensure all matters are fairly discussed, please note that no discussions will be held prior to this meeting with myself or your manager. In addition, you are directed to keep this matter strictly confidential.

Please contact me should you have any queries.

Regards

Kate”

The Dismissal

[83] Not being at work and being on a day’s leave, on Wednesday 8 August Mr McCouaig did not open the outlook invitation or Ms Narkiewicz’s email. He did so on Thursday morning 9 August at about 8.30am upon arrival at work. He saw that he was being summonsed to a meeting in an hour’s time. Upon reading the email he feared an ambush to terminate his employment. He had made prior arrangements for his father to act as his support person at the 14 August meeting (which he also considered a possible set-up for termination, as he had alluded to Mr Podnar on 3 August). He did not want to meet in advance of 14 August and not without his father. He decided to ‘decline’ the outlook ‘invitation’. In declining the invitation he responded to Ms Narkiewicz at 8.37am (SA time) with the following: 37

“Kate, your original indication was that this meeting is to take place Tuesday the 14th. I will be available on this date.”

He then left the office to conduct a building inspection.

[84] Ms Narkiewicz received the message declining the meeting invitation at about 8.40am. She was “not surprised” 38. She called Mr Podnar and asked him to speak to Mr McCouaig and tell him “the meeting would proceed in his absence and that there would be serious repercussions if he failed to attend”39.

[85] Mr Podnar telephoned Mr McCouaig at 9.15am. He was asked to explain his non-attendance. In an agitated tone, Mr McCouaig said that he had declined because of short notice, would meet on 14 August and that there was no ‘incident’ to discuss, repeating his view that Mr Podnar knew of the fire incident before he did and that Mr Podnar knew that from their discussion the previous Monday morning.

[86] Mr Podnar reported this response to Ms Narkiewicz She decided that the meeting would proceed. Mr Young and Mr Podnar assembled in the meeting room with Ms Narkiewicz in attendance by interstate phone link.

[87] Mr McCouaig’s non-attendance was discussed. All present considered Mr McCouaig’s explanation for non-attendance unsatisfactory. Mr Podnar was asked to again phone Mr McCouaig and reiterate that the meeting would proceed in his absence.

[88] Mr Podnar again rang Mr McCouaig at approximately 9.35am. By then, Mr McCouaig had spoken to his wife, who had advised him to see a doctor given his agitated state. In this further call Mr McCouaig declined a second time to attend and told Mr Podnar that he was on the way to see his doctor and that he would be going on stress leave.

[89] The meeting proceeded, as scheduled. There was discussion but no disagreement. Ms Narkiewicz and Mr Podnar each expressed the view that Mr McCouaig’s non-attendance was unacceptable. Both said that Mr McCouaig had failed to escalate-up the fire incident on the Sunday night and that this was a serious failure. Mr Podnar was satisfied that Mr McCouaig had known of the incident on the Sunday night, based on the MFS Incident Report. He said so. Ms Narkiewicz referred to the previous warnings for alleged lack of communication. Mr Podnar said that Mr McCouaig’s employment should be terminated. Ms Narkiewicz expressed the same view. Both recommended this course to Mr Young. Mr Young agreed with the views expressed. Ms Narkiewicz suggested that before a final decision, she would consult her senior HR manager Ms Beagley. The meeting paused while Ms Narkiewicz called Ms Beagley. Ms Beagley agreed that grounds to terminate existed. Ms Narkiewicz reported back to the meeting. Mr Young gave his consent to the termination. It was agreed that he would phone Mr McCouaig and tell him that he was dismissed. In the presence of the others, at 10.30am Mr Young phoned Mr McCouaig. The call was not answered. Mr Young left a voicemail message with words to the effect that the meeting had taken place in his absence and the result was that Colliers had terminated his employment with immediate effect. Mr Young then sent Mr McCouaig an email to the same effect. The meeting concluded.

[90] In advance of seeing his doctor, Mr McCouaig briefly returned to the office. He collected his belongings, adjusted his ‘out of office’ email settings in anticipation of not being at work for an “indefinite period”, and left. From a distance, Mr Podnar saw him. Nothing was said. Mr McCouaig made a swift exit.

[91] At Ms Narkiewicz’s instigation, Mr McCouaig’s IT credentials and email account were closed down by Colliers at 12.17pm that day. Ms Narkiewicz expressed the view that once Mr Young had agreed to the dismissal, her role was to “offboard the individual” 40.

[92] Although the evidence of Ms Narkiewicz, Mr Young and Mr Podnar on this point is vague, evasive and contradictory I am satisfied that at least at some point on 9 August (either at the meeting or subsequently) Ms Narkiewicz made it known to Mr Young that she believed that Mr McCouaig had admitted to Mr Podnar earlier that week that he (Mr McCouaig) had known about the fire incident on the Sunday night. In an email to Ms Narkiewicz at 2.25pm on 9 August (four hours after dismissal), Mr Young said: 41

“Kate – FYI. To be clear, Andrew did not admit to not reacting on the fire incident during this meeting. That is, we didn’t talk about it.”

[93] I accept Mr Young’s evidence that the “meeting” he was referring to in this email was the mediation meeting he chaired on the Monday afternoon, 6 August.

[94] Ms Narkiewicz proceeded to make file notes of the 9 August meeting and draft a termination letter for Mr Young’s signature. By post on Monday 13 August, Mr McCouaig received that letter dated 9 August. 42 It read in part:

“The Company considers the actions and attitude you have demonstrated this morning to be unacceptable workplace behaviour. Further, our review of the incident that occurred at Wyatt House on 5 August 2018 found that you failed to follow due process; specifically, that you failed to communicate the critical incident to your Manager (Nik Podnar) and/or the relevant Property Manager.

Your performance in relation to following due process, communication, attitude and dismissive behaviour have been under review through your recent Performance Improvement Plan; during which you were issued a First Warning (dated 6 June 2018), and Second & Final Warning (dated 31 July 2018). These warnings explained that any further instance of unsatisfactory performance or conduct may result in further disciplinary action, up to and including termination of your employment which we have effected today.”

[95] The letter also indicated that Mr McCouaig was terminated on one month’s notice from 9 August, to be paid in lieu.

[96] Mr McCouaig commenced these proceedings on 28 August.

Consideration

[97] The issue for determination is simply put: was Mr McCouaig’s dismissal “harsh, unjust or unreasonable” having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?

[98] Section 387 of the FW Act provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

[99] I am under a duty to consider each of the criteria in section 387 of the FW Act,⁴³ and now do so. In so doing, I take into account all of the evidence and submissions before me. Given the breadth of issues raised over many hearing days, in this decision I specifically deal with evidence that is most material to arriving at a decision in this matter. Some evidence is not referenced, not because I have not considered it, but because I do not need to make specific reference to it. Similarly, I have dealt with each primary submission but not every angle of each submission, not because they have not been considered but because doing so would add excessive length to these reasons.

Valid reason

[100] A valid reason is one that is sound, defensible and well founded. It should not be capricious, fanciful, spiteful or prejudiced. 44

[101] It is relevant to note that in respect of conduct matters (other than in small businesses) the Commission’s role is not to consider whether an employer had reasonable grounds for concluding that a dismissed employee had committed acts of misconduct. It is the Commission’s role to consider whether the conduct itself occurred, and whether it constituted a breach of duty and a valid reason for dismissal 45. The Commission is tasked to consider whether, to a reasonable degree of satisfaction on the evidence before it, misconduct occurred on the balance of probabilities. The more serious the alleged misconduct, the more stringent the civil burden of proof46.

[102] Mr McCouaig was dismissed on notice. His letter of dismissal 47 does not condense the reason into a single proposition. Colliers refers to “unacceptable workplace behaviour”. Its response to the unfair dismissal application48 invokes similar language.

[103] I am satisfied that the reason for dismissal was an alleged failure of duty involving two alleged conduct breaches in the context of a performance management process that was well advanced and which had included two warnings. The conduct breaches were firstly, an alleged failure to inform his managers of a fire incident at Wyatt House on Sunday evening 5 August; and secondly, an alleged failure to attend a meeting on 9 August which had been called to discuss the matter. The performance failures were summarised in the termination letter as alleged failures to follow “due process, communication, attitude and dismissive behaviour”.

[104] It is necessary to consider whether either or both of the alleged conduct breaches were a valid reason for dismissal, and whether the alleged performance failures were valid reasons for dismissal. It is also necessary to consider whether individually or in combination these provided a valid reason for dismissal.

Alleged failure of duty: the fire incident

[105] Did Mr McCouaig fail to inform his managers of a fire incident at Wyatt House on Sunday evening 5 August 2018?

[106] This allegation can only be sustained if it can be established that Mr McCouaig was informed of the fire incident on the evening of 5 August. Self-evidently, an employee cannot ‘escalate-up’ something they do not know about.

[107] Colliers submit that Mr McCouaig was informed about the fire incident by the fire authority (MFS) on the Sunday evening. Colliers submit that a fire officer attending (Waller) called Mr McCouaig on his mobile phone at about 7.45pm. Initially Colliers submitted (relying on Mr Podnar’s evidence which under cross examination he retracted 49) that fire officer Waller left a voicemail message for Mr McCouaig. In final submissions Colliers submitted that in all probability a call made was answered and the fire officer spoke directly to Mr McCouaig.

[108] Mr McCouaig denies that he was so informed on the Sunday evening by either an answered call or a voicemail. He says that his first knowledge of the fire incident was when he received a phone call from the fire authority on his work phone whilst in the Colliers office the following day, Monday morning 6 August. He says that he then turned to Mr Podnar and Ms Laird and asked them what if anything they knew about it.

[109] Colliers did not call fire officer Waller or any MFS officer to give evidence. It produced an MFS Incident Report that had been sent on the Monday afternoon by the fire authority to Mr Podnar in response to his inquiries. That Incident Report records “Andrew McCouaig advised of attendance”. Colliers also relies on the evidence of Mr Podnar 50 who said that during the Monday he telephoned the MFS and was told that they had phoned Mr McCouaig the previous evening, that the call had not been answered and that they had left a voicemail message.

[110] Mr McCouaig produced into evidence his Vodafone account for the period 51. The Vodafone account records whether an incoming call has been diverted to voicemail, whether voicemail messages have been retrieved, and details of outgoing calls. It does not record incoming calls that were taken. The Vodafone account shows that no voicemail was left on Mr McCouaig’s phone at any time on Sunday 5 August. That, coupled with Mr McCouaig’s evidence that he did not receive a voicemail message from the MFS leads me to find that no such message about the fire incident was left on his voicemail.

[111] I reject Mr Podnar’s evidence in his witness statement that he was told by the MFS on Monday 6 August that a voicemail had been left for Mr McCouaig. His evidence shifted on multiple occasions about what he knew about the fire incident, when and from whom. I accept that Mr Podnar did make a call to the MFS on Monday 6 August but beyond that his evidence is unreliable. It is possible that he was told by the MFS in general terms only that a call had been made the evening prior just as it is possible the communications officer was more specific. The Incident Report he received made no mention of voicemail.

[112] Was a call made to Mr McCouaig and was a discussion held between Mr McCouaig and a fire officer on the Sunday evening?

[113] In the absence of contrary direct evidence from fire officer Waller or the MFS, I accept Mr McCouaig’s denials. They are plausible and consistent with his conduct the following day.

[114] The evidence of Mr McCouaig is that on the Monday morning he was genuinely surprised at being told about by the MFS of a fire incident at Wyatt House the previous evening. I accept his evidence, corroborated as it was by Ms Laird, that (after the MFS call to him) he instinctively turned around and asked whether anyone knew about the incident. This is not the conduct of a person concealing knowledge or elaborately creating an artifice to cover up knowledge. I do not accept Mr Podnar’s evidence that it was Mr Podnar who opened that conversation. It was Mr McCouaig. Just as instinctively Mr Podnar and Ms Laird said they knew of the fire, and Ms Laird then made reference to the email that she and Mr Podnar had received from their client (Mr Trezise) the previous evening. Mr McCouaig said he knew of no such email, so she then forwarded it to him. As a matter of fact, and even though he was facilities manager for the building, Mr McCouaig had not been a recipient of Mr Trezise’s email nor copied into it.

[115] What then is to be made of the MFS statement in the Incident Report “Andrew McCouaig advised of attendance”? I am satisfied that in all probability this is an error by the MFS insofar as it refers to “Andrew McCouaig” instead of Markus Trezise. Mr McCouaig sought and tendered into evidence a signed statement from Mr Trezise. Colliers agreed to the admission of this statement without cross examination. The statement of Mr Trezise is that he (Mr Trezise) is chief fire warden for the Wyatt House building and that he (Mr Trezise) received and took a phone call from the MFS at “approximately 7.50pm on Sunday 5 August advising of the fire. Mr Trezise’s evidence 52 is also that he (Mr Trezise) told the fire officer that he (Mr Trezise) was going on leave the following day and would arrange another contact person. Mr Trezise then sent his email of 7.57pm to certain officers of both Gallagher Bassett and Colliers (Mr Podnar and Ms Laird). Relevantly, in his email exchange with Mr Podnar that evening, Mr Trezise also advised Mr Podnar that he (Mr Trezise) was going on leave “from tomorrow until 3 September”.

[116] Clearly then, it is the uncontroverted evidence that the MFS made a phone call to Mr Trezise at about 7.45pm/7.50pm on Sunday 5 August. The Incident Report makes no reference to Markus Trezise, nor does it indicate that any more than one contact was made that night by fire officer Waller.

[117] In the lead-up to the hearing Mr McCouaig sought information from the MFS about their records of the call made on the Sunday evening as noted in the Incident Report 53. In the MFS reply, which was admitted into evidence by consent, the Assistant Chief Fire Officer (Mr Thompson) says as follows:

“An internal investigation has revealed that the 1st arrival Station Officer used the contact notification information for this fire alarm to notify Andrew McCouaig by the mobile phone on the fire appliance at 19:45 hours on 05/08/2018 to inform him that there had been a fire adjacent to the premises that had activated the fire alarm. The Officer recalled speaking to 'Andrew' who had suggested he was either having a day off tomorrow or going on leave....but he would handle it.

The MFS Fire Alarms Officer also contacted Andrew the following morning to advise of our attendance as part of the follow up from alarm calls over the weekend. Neither of these phone calls are recorded or records kept as only ‘000’ and emergency calls are recorded automatically.”

[118] This explanation repeats a belief that Andrew McCouaig was called at 7.45pm on the Sunday evening and that the officer “spoke” to ‘Andrew’. Relevantly though, the MFS indicate that the same ‘Andrew’ told the officer that he was going on leave the next day. The evidence before me is that Mr Trezise was going on leave the next day, not Mr McCouaig. Mr Trezise’s evidence is that he told the officer exactly that, at around the very time the MFS say the officer made the call that evening.

[119] Though I need not make a finding in this regard (given that I accept the evidence of Mr McCouaig’s denials) it is open to draw an inference that the MFS spoke to Mr Trezise on the Sunday evening and not Mr McCouaig, and only spoke to Mr McCouaig on the Monday morning. For reasons unknown, the Incident Report has incorrectly referred to Andrew McCouaig when it was in fact Markus Trezise’s number that was called. Mr Trezise’s evidence was that the MFS obtained his number from a board in the fire room of Wyatt House given that he was chief fire warden 54.

[120] There is no evidence before me that establishes on the balance of probabilities that Mr McCouaig was in fact advised by the fire authorities of the Wyatt House fire on the evening of Sunday 5 August.

[121] Not having been so informed, he was not in breach of failing to escalate-up the fire incident.

[122] Mr Podnar was sceptical of Mr McCouaig’s denial on the Monday morning that he did not know of the fire incident until that time. I accept this was Mr Podnar’s suspicion. However, Mr Podnar wrongly jumped to the conclusion that his facilities manager would have or should have known about it. His judgment was unduly affected by his previous concerns about Mr McCouaig’s lack of communication and his annoyance that he had been informed by a client, not his facilities manager. Be that as it may, those were the facts. If Mr Podnar had looked closely at Mr Trezise’s email on the Sunday evening, he would have noticed that Mr Trezise did not send the email to Mr McCouaig, nor copy him in, nor make any mention about Mr McCouaig. Nor did Mr Podnar copy Mr McCouaig into his email exchange with Mr Trezise that evening. Mr Podnar made an assumption on the Monday that Mr McCouaig was not telling the truth. When he received the Incident Report later that afternoon he believed his suspicion to be proven correct and thereafter was fully satisfied that Mr McCouaig had failed in his duty and had falsely disclaimed knowledge that morning. He (Mr Podnar) then put in train the events that led to Mr McCouaig’s dismissal. He told Ms. Narkiewicz. He told Ms Gray. He agreed to a 9 August meeting to confront Mr McCouaig. He allowed a notice of meeting to be sent out on 8 August, knowing his facilities manager was on leave that day. He recommended dismissal.

[123] Yet, at no stage between the very brief discussion (initiated by Mr McCouaig) on the Monday morning until dismissal did Mr Podnar ask Mr McCouaig to explain his denial in the wake of the MFS Incident Report. In fact, Mr McCouaig was never provided the MFS Incident Report. It was withheld from him with the effect of ambushing him. The first he saw of it was when it was produced in the lead-up to this hearing, four months after dismissal. Only then was Mr McCouaig in a position to know that the MFS was saying that he (Mr McCouaig) had been contacted on the Sunday night. Only then was Mr McCouaig able to test that proposition against his Vodafone account and seek details from the MFS.

[124] There are two other matters concerning the fire incident and its subsequent events that are troubling. Mr Podnar claimed in his written statement of 14 November 2018 that he did not know of the incident until the Monday morning 55, but when giving oral evidence on 22 January 2019 (the day after he started giving oral evidence and having on 21 January deposed to the accuracy of his written statement) he corrected his evidence to indicate that he knew of it on the Sunday night. By then, the email exchange between he and Markus Trezise had been produced by Colliers after Mr McCouaig had applied for an order for discovery. Plainly, that email exchange established that Mr Podnar knew of the fire incident on the Sunday evening.

[125] The evidence of Mr Young 56 was to the effect that Mr Podnar indicated to him that he (Mr Podnar) did not know of the incident until the Monday morning. There is sufficient evidence to draw an inference that, in order to highlight what he considered Mr McCouaig’s failure, Mr Podnar at the very least initially downplayed to his superiors that he knew of the fire incident that Sunday evening. There is also sufficient evidence57 to draw an inference that he either conveyed or allowed Ms Narkiewicz to form a view that Mr McCouaig had admitted to knowing about the incident on the Sunday night. I find that Ms Narkiewicz recommended dismissal under that false impression; one Mr Podnar had allowed to form and not corrected58. It was Mr Young who, in his email hours after dismissal59, acted honourably in making sure that Ms Narkiewicz’s incorrect view was not based on anything that Mr Young had said about his meeting with Mr McCouaig the previous Monday afternoon. Mr Podnar took no such action to correct the record.

Alleged failure of duty: non-attendance at 9 August meeting

[126] Mr McCouaig was provided an opportunity to attend the 9 August meeting but I do not consider that it was a reasonable opportunity in terms of notice, nor were the allegations against him specified in that notice. The notice of meeting was issued on 8 August some 20 hours before the scheduled meeting and on a day when Mr McCouaig was not at work because the employer had granted him pre-arranged leave. It was not unreasonable for Mr McCouaig to not check his work emails or work outlook calendar on that day. He was, after all, on leave. Mr McCouaig’s agreed work hours commenced at around 8.30am weekdays. Given that he was scheduled to return to the office from leave at 8.30am on 9 August, in effect Mr McCouaig was provided only one hour’s notice.

[127] As to the opportunity to respond to the allegations about the fire incident, Colliers email of 8 August indicated that the company had “concerns with your communication of the (fire) incident” and his “performance in relation to the incident” 60. However, none of those concerns were specified. The MFS Incident Report was not mentioned. Colliers were holding it up its sleeve. Colliers expected him to attend and provide responses then and there to unknown questions.

[128] Relevantly, at no stage in advance of his dismissal was Mr McCouaig advised by Colliers that the company believed that he had been notified of the fire incident on the Sunday evening 5 August or that Ms Narkiewicz believed that he had made admissions to that effect.

[129] Further, the calendar invite and email on 8 August made no direct reference to dismissal as a possible consequence of the meeting. It said: 61

“At the conclusion of the meeting, a decision will be made as to what action is appropriate in the circumstances. This may include a written warning or further training. Alternatively it may be decided that no further action is necessary.”

[130] Whilst the first sentence of this notification indirectly includes an (unstated) option of dismissal, the second and third sentences particularised three possible responses, all of lesser sanction or no sanction. Upon reading this email Mr McCouaig was put on notice that his employer had general concerns at his alleged conduct or performance relating to the fire incident and that disciplinary action was possible. However, given the specificity of the possible future steps outlined he was not put on notice that dismissal was being contemplated. Moreover, I find that at that very time at least two Colliers officers (Mr Podnar 62 and Ms Narkiewicz63) were contemplating his dismissal as a possible sanction given how seriously they viewed Mr McCouaig’s alleged failure to escalate the fire incident. This is primarily why Mr Young was asked to attend. I conclude that this email notification misled Mr McCouaig as to possible sanction.

[131] There was no reasonable basis for Colliers to decide not to defer the meeting to 14 August (the next performance meeting) especially once Ms Narkiewicz was informed that Mr McCouaig had declined to attend on one hour’s notice. Colliers failed to do so because by the morning of 9 August all objectivity had been lost. The proper role of a human resources department is to sit between impulsive managers baying for dismissal and the obligation of an employer to ensure procedural fairness. This role was cast aside. The human resources department had organised a meeting, had arranged the attendance of a busy State Chief Executive with power to dismiss, and didn’t want to deviate from the course of confronting Mr McCouaig with what it considered indisputable proof of serious failure of duty. The die had been cast and it was to be rolled. Not even advice from Mr McCouaig to Mr Podnar that he was seeing his doctor in light of the anxiety attributable to the unreasonably short meeting notice and his fear of ambush was sufficient to change that course. The meeting went ahead and a decision to dismiss was made without the employer ever informing the manager of the specific allegations against him, without the employer knowing the manager’s version of events and without the employer producing to the manager the supposed evidence on which it had made a wrongly formed assumption. Ms Narkiewicz recommended dismissal for alleged failure of duty without having ever spoken to Mr McCouaig about the fire incident. Her evidence that from 6 August there were “no matters I needed clarification” 64 was prejudgment and patently unreasonable.

[132] There was a refusal by Mr McCouaig to meet on 9 August but it was not an unreasonable refusal. The instruction to meet at that date and time, whilst lawful, was not reasonable. Persisting with that demand in the wake of the manager’s reasonable objections compounded the unreasonableness. It was not a valid reason for dismissal.

Alleged performance failures

[133] Collier’s criticisms of Mr McCouaig’s performance centred largely an alleged failure to communicate, and bringing a negative attitude to the workplace.

[134] There were legitimate concerns held by Colliers with some aspects of Mr McCouaig’s performance. Those had become the subject of its performance management of Mr McCouaig. In particular some (but not all) of the criticisms of Mr McCouaig’s failure to adequately communicate and take initiative in keeping others informed were matters properly the subject of counselling and performance review.

[135] The criticisms of Mr McCouaig’s ‘negative attitude’ in the workplace were much more subjectively based and are less sustainable on objective analysis. They were largely the consequence of Mr McCouaig becoming frustrated and demotivated by criticism of his performance and the intensity of his performance management. It also reflected tension between he and Ms Gray and then the making and rejection of his bullying complaint.

[136] Mr McCouaig was placed on intensive performance management in his final ten weeks of employment. I am satisfied that the scrutiny of his performance from late May 2018 was initially warranted but, in the final analysis, it was excessive and lacked objectivity. Mr McCouaig did fail on occasions to adequately communicate to other managers in a timely manner. He was an employee who tended to ‘watch the clock’ and leave for the day when he was scheduled to knock-off. He was not a bubbly personality nor was he a natural communicator. There was some casualness about his comings and goings. That notwithstanding, clients did not dislike him. He met his KPI’s. He made this point to Mr Podnar in his My Plan self-assessment in July 2018. Mr Podnar agreed without demur. Mr McCouaig did on occasions start earlier than his scheduled commencement time (8.30am) and did attend (albeit with some frustration due to having a young family 65) to matters out of hours. He did, when confronted with criticisms in May 2018, use foul language when defending his position. For this he was rightly criticised although his frustration over Ms Gray’s scrutiny of him (rather than his immediate line manager Mr Podnar) was the context. He was somewhat inflexible in approach but Mr Podnar’s evidence66 that he (Mr Podnar) expected his managers to be responsive to Colliers or clients 24 hours a day seven days a week whether awake or asleep was, when taken to the extremes he suggested, unreasonable.

[137] The first warning Mr McCouaig received on 6 June 2018 was a culmination of concerns built up over a number of months. I am satisfied that it was reasonably based. After receiving that warning his performance did improve but he later became understandably negative in approach when he learnt that his bullying complaint against Ms Gray was rejected by the human resources department. The second warning he received on 31 July 2018 was in part unreasonable. By that stage contradictory and mixed messages were being communicated to Mr McCouaig about his performance. His email of 26 July to the HR department is telling. In it he specifically and justifiably refers to that “contradiction”. His performance over the final ten weeks of employment was not a constant deterioration. It ebbed and flowed. He was told on more than one occasion that he was meeting his KPI’s and had picked up his approach and attitude to acceptable standards. The 31 July warning about his failure to escalate-up information about the partial CBD blackout and return the tenant’s subsequent calls had some foundation although the fact that Mr McCouaig did action an urgent work order at Sunday lunchtime suggests that he was not entirely indifferent to his obligations. The second warning was also based on an alleged failure to communicate about a handover. Mr Podnar in evidence 67 accepted that this was not, on reflection, a sustainable criticism. Nor was the second warning carried out in a reasonable manner. It came out of the blue after a performance management meeting where the HR department had not given any indication that a warning was imminent68.

Conclusion on valid reason

[138] Colliers did not submit at the hearing that (absent the conduct matters) Mr McCouaig’s dismissal was warranted on performance grounds alone. I agree. There were some performance deficiencies warranting counselling and warning but no valid reason on 9 August to dismiss on performance grounds.

[139] Having regard to my findings about the alleged conduct breaches and the alleged performance deficiencies I conclude that there was no valid reason for dismissal individually or in combination.

[140] Mr McCouaig did not fail to escalate-up a fire incident on Sunday 5 August 2018 because he was not informed about the incident at that time. There was no misconduct in this respect.

[141] Mr McCouaig had reasonable grounds for not attending the meeting on 9 August. He failed to follow an instruction to do so but in all the circumstances it was an unreasonable instruction. There was no misconduct in this respect.

[142] There were some performance deficiencies warranting counselling and warning but others were overstated and lacked objectivity. Mr McCouaig’s fluctuation in attitude and performance was in part a consequence of a flawed performance management system that sent mixed messages about his overall performance against KPIs. It was also infected by the mutual dislike between he and Ms Gray especially in the wake of his bullying complaint and its follow-up. The second warning of 31 July was based in part on unfair criticism. It was not reasonable to conclude on 9 August that Mr McCouaig was failing to perform the duties of a facilities manager. Dismissal on performance grounds was not warranted.

Notification

[143] Mr McCouaig was notified by a phone call from the State Chief Executive minutes after the decision to dismiss was made, which (when not answered) went to voicemail. A voicemail message was left advising of dismissal. Mr McCouaig was then notified by a confirming email.

[144] Mr McCouaig was formally advised by a letter of termination (dated 9 August) received by post on 13 August.

Opportunity to respond

[145] Mr McCouaig was provided multiple opportunities to respond to criticism of his performance. Those opportunities were in informal discussions with his line manager (Mr Podnar), at least two informal counselling sessions (including one over coffee) and during formal performance management meetings. In general, Mr McCouaig knew of the criticisms being levelled at him, though on occasions those criticisms were not known in advance and added by the employer during meetings to its list of concerns.

[146] Mr McCouaig did not however consider that these opportunities were provided in a reasonable manner. He considered that the performance management of him was excessive and his responses (in meetings or by email) were not seriously considered by the human resources department especially once he lodged a bullying complaint against Ms Gray.

[147] Although Mr McCouaig received two formal performance warnings (6 June and 31 July), on neither occasion was he provided prior notification that warnings would be issued, notwithstanding performance meetings being conducted by his managers in the days immediately prior. He was unable to respond to warnings in advance of them being issued although he was able to respond in advance to the issues that gave rise to those warnings.

[148] With respect to the fire incident, Mr McCouaig was provided no reasonable opportunity to respond. Colliers were certainly justified in seeking a response from its facilities manager especially once Mr Podnar received the MFS Incident Report that named Mr McCouaig as having been contacted on the Sunday night by the fire authority. Whilst in the wake of the Incident Report it was understandable for Mr Podnar to have doubts over the accuracy of Mr McCouaig’s expressed lack of knowledge, Colliers acted unreasonably in jumping to a conclusion of wrongdoing, in the time frame it required Mr McCouaig’s attendance, in the lack of specificity of its allegations, in withholding from him the Incident Report and in the misleading way it couched its possible sanction. It also acted unreasonably in not deferring the meeting once it became aware of Mr McCouaig’s decision to decline attendance and the reasons why.

[149] In these circumstances, rather than being provided a real opportunity to respond Mr McCouaig was being provided an opportunity in name only; one in which he was being summonsed to participate in an ambush of his employment.

Support person

[150] In its email to Mr McCouaig on 8 August notifying him of a meeting on 9 August Colliers said as follows: 69

“You are welcome to bring a support person along to the meeting. The role of a support person is to provide you with emotional support. They are not there to act as an advocate on your behalf.”

[151] Collier’s invitation to bring a support person was made in conjunction with a meeting notice which was, for reasons already mentioned, unfair and misleading. Being invited to bring a support person to an ill-timed meeting where serious allegations had not been outlined and Mr McCouaig misled over possible sanctions compromised not just the rights of the employee but the utility of his potential support person. To the extent an employee is in the dark about allegations and misled about possible sanctions, so too would be that person’s support person.

[152] Colliers had already scheduled a performance management meeting for five days later (14 August) and the employer had provided Mr McCouaig an opportunity to bring a support person to that meeting (as with previous PMP meetings). On this occasion, albeit unknown to Colliers, Mr McCouaig had arranged (quite reasonably) for his father to attend as his support person. Compelling his attendance at a meeting with no more than one hour’s notice made it nigh impossible for Mr McCouaig to secure a support person of his choice.

[153] Colliers (both Ms Narkiewicz and Mr Podnar) knew by at least by 3 August that Mr McCouaig was fearing that he was being set-up for dismissal when he told both by email “that he would hate there to be any surprises” on 14 August. In these circumstances Colliers ought to have recognised that Mr McCouaig’s attendance at further performance or disciplinary meetings with a support person was a real possibility. Colliers was required to make reasonable provision for that right to be exercised as a minimum measure of fairness. It failed to do so.

[154] Collier’s email of 8 August advised Mr McCouaig that any support person could provide “emotional support” but was “not acting as an advocate”. Generally speaking, a support person is not an advocate. Support however takes a variety of forms and may include a support person needing to speak to the employee they are supporting or, in appropriate circumstances, to the employer – for example to seek clarification or request a pause to a meeting. In its communication to Mr McCouaig, Colliers risked unreasonably limiting the role of a support person to that of emotional support. Whilst a support person is not a substitute for direct accountability by an employee to an employer, they perform a role beyond that of a shoulder to cry on 70.

[155] In the circumstances of this case, and notwithstanding the intimation in Ms Narkiewicz’s email of 8 August, I find that Colliers unreasonably refused to allow Mr McCouaig to have a support person present because it gave him no reasonable time-frame to access one.

Performance warnings

[156] Mr McCouaig was notified on multiple occasions of Collier’s criticisms of his performance and knew that he had been placed on a performance management plan in the ten weeks prior to dismissal.

[157] He received two formal performance warnings; one on 6 June (first warning) and 31 July (second and final warning). On neither occasion was he given prior notification that these warnings would be issued, notwithstanding performance meetings with managers immediately prior.

[158] Two informal counselling meetings had been held prior to the performance management plan process, and three formal performance management meetings followed.

[159] A separate performance appraisal meeting was held with his immediate manager in July 2018 and another had been held six months prior.

[160] A mediation meeting was also held with the State Chief Executive (6 August) to discuss communication issues between he and Ms Gray.

[161] On some but not all of these meetings Mr McCouaig’s performance was criticised. On others he was advised that his performance had met standards and expectations.

[162] In respect of Colliers criticisms of Mr McCouaig’s conduct relating to the 5 August fire incident and his failure to attend the meeting on 9 August, Mr McCouaig learnt of the meeting scheduled for 9 August when he opened his outlook calendar one hour before its commencement. Mr McCouaig was notified by Mr Podnar fifteen minutes before the scheduled meeting that Colliers required him to attend notwithstanding his decision to decline. At the time of the scheduled meeting this was reiterated to Mr McCouaig as well as the Company’s view that his reasons for declining were unacceptable.

Size of employer’s business

[163] Colliers is a substantial international business enterprise in the property sector. In Australia it operates nationwide. Its size requires the business to operate multiple divisions. These have established management structures, well developed systems and lines of accountability.

Human resource specialists

[164] Colliers has an established national human resources department based in Melbourne. It administers human resources protocols, policies and procedures. The human resource department provides corporate human resource support and advice to its Australian operations, including to South Australian managers. That resource also conducts workplace investigations, including those into bullying complaints and alleged employee misconduct.

Other matters

[165] Mr McCouaig was 42 years of age at the time of his dismissal. He has a young family. There are no other relevant matters that have not been otherwise considered.

Conclusion on merits

[166] I have found that there was no valid reason for Mr McCouaig’s dismissal by reference to the fire incident or by reference to his failure to attend the meeting on 9 August.

[167] I have found that although there were some legitimate concerns held by Colliers with Mr McCouaig’s performance not all were reasonably held. I have found that an overly negative view of his performance had been formed in the very period that he lodged a bullying complaint against Ms Gray, and this coloured assessments made by Mr Podnar and Collier’s HR department about his overall performance.

[168] I have also found that Mr McCouaig’s performance in the final ten weeks of employment ebbed and flowed but included the not insignificant occasions when he was advised that he was meeting expectations and meeting his KPI’s. There were some legitimate performance concerns warranting review and ongoing management but none were a valid reason for dismissal.

[169] I have also found that the process of performance management was initially warranted but ultimately excessive and lacked objectivity. At least the second formal warning issued by Colliers was based in part on unreasonable grounds.

[170] As to the decision to dismiss, I have found that it was fundamentally flawed. Assumptions were made that Mr McCouaig had failed in his duty in the fire incident which turned out to be wrong. An assumption, at least on the part of Ms Narkiewicz that Mr McCouaig had admitted to Colliers that he had knowledge of the fire incident on the evening it occurred was also wrong.

[171] It was also unreasonable for Colliers to conclude that Mr McCouaig had failed in his duty when declining to meet on 9 August. He had justifiable reasons for doing so and was willing to meet five days later, as had been scheduled.

[172] I have also found that Colliers denied Mr McCouaig a real opportunity to respond to the allegations which formed the basis of its decision to dismiss. In the time frames demanded, it denied him an effective opportunity to access a support person of his choice. It misled him. It only advised Mr McCouaig that sanctions short of dismissal were under contemplation when in fact the dismissal sanction was on the table. Claims by Colliers that the subject of Mr McCouaig’s bulling complaint (Ms Gray) had no influence in events leading to dismissal were also misleading. In the days leading to dismissal, Mr Podnar relayed his concerns and suspicions about Mr McCouaig to Ms Gray. She made it clear that summonsing Mr McCouaig to answer the allegations could not wait until 14 August.

[173] What is apparent is that, armed with an increasingly jaundiced view about Mr McCouaig given his bullying complaint against Ms Gray and given his performance management and resistance to performance criticism, the fire incident report was a god-send to those of his managers who wanted him out (Ms Gray) or those who (even with some reluctance) saw it as necessary to have him out (Mr Podnar), and a human resource department (Ms Narkiewicz) that considered him an ongoing management problem.

[174] This lack of objectively explains not only why it was concluded, wrongly, that Mr McCouaig knew of the fire incident on the Sunday evening but also why the 9 August meeting was to occur then and there, come what may.

[175] These events provide a sobering reminder why human resource departments need to maintain appropriate detachment from operational staff and not jump to conclusions. While Colliers cannot be criticised for taking on face value what the fire authorities recorded on their Incident Report, the very reason why procedural fairness is required to be offered to an employee is to guard against managers baying for dismissal or making incorrect assumptions based on a report by a third party that may or may not be mistaken. Mr McCouaig was denied that procedural fairness.

[176] For these reasons, the evidence overwhelmingly warrants a conclusion that Mr McCouaig’s dismissal was harsh, unjust and unreasonable.

Remedy

[177] Mr McCouaig indicated in his evidence that he was primarily litigating this matter out of a genuine sense of having been treated unfairly and not for monetary gain. He seeks to remedy an injustice and correct a false accusation of wrongdoing. He believes that a finding of unfair dismissal has real and tangible value. I have made my findings. I have found that Mr McCouaig was not derelict in his duty concerning the fire incident. I have found that Colliers, in part for understandable reasons but without objectivity and due process, wrongly jumped to that conclusion.

[178] I consider it appropriate to order a remedy. The circumstances giving rise to the employment relationship ceasing are real and substantive. It would not be in the interests of justice for an employee, in light of those findings, to be denied a remedy at least for identifiable and compensable economic loss, within statutory limits.

[179] I do not consider that reinstatement in the same or an alternate role to be appropriate. It was apparent from the proceedings that the relationship between Mr McCouaig and Colliers has broken down irretrievably such that reinstatement is inappropriate.

[180] In these circumstances I consider that a remedy in the form of compensation as provided by statute is appropriate.

[181] Section 392 of the FW Act provides as follows:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[182] I note that the discretion to award compensation is not at large; it is a discretion guided by statute. I adopt the approach and principles governing the exercise of this guided discretion in Sprigg v Paul Licensed Festival Supermarket 71 which sets out a well-established, structured and transparent methodology for the assessment of compensation.

[183] I now consider each of the criteria in section 392 of the FW Act.

Viability: section 392(2)(a)

[184] I am satisfied that a compensation order even to the maximum statutory limit will not adversely affect the viability of Colliers.

Length of service: section (section 392(2)(b))

[185] Mr McCouaig worked for Colliers for two years and two months.

Remuneration that would have been received: section 392(2)(c)

[186] But for the tensions that emerged in his relationship with Ms Gray from February 2018, Mr McCouaig had a reasonable expectation of ongoing full time employment with a medium to long term future in the business. Until then, he was doing his job without complaint, was liked by his managers (past and present) and was working well alongside Mr Podnar.

[187] Even given the events of his final two months of employment (PIP, bullying complaint, fire incident) Mr McCouaig was not a non-performer. Although his performance waxed and waned, and Mr Podnar considered that he worked to the clock, he largely met his KPI’s and was appraised and acknowledged as having done so.

[188] However, as his relationship with Ms Gray became one of mutual dislike, his relationship with Mr Podnar also became affected by that tension given that Mr Podnar (upon his promotion) reported to Ms Gray and had become Mr McCouaig’s manager. Given the areas in which Mr McCouaig’s performance waxed and waned, and given the ongoing presence of Ms Gray, it is likely that further management review of his performance through the PIP would have occurred even had he not been dismissed. This would have continued to frustrate Mr McCouaig and if pushed too far, he may have again looked elsewhere for work and if something suitable arose, resign. In May 2018, when placed on the PIP, he contemplated doing so.

[189] However, with a young family, in all probability Mr McCouaig would have continued to dig in unless and until something more suitable became available. That may have been months down the track. Quite possibly the stressful workplace environment would have seen Mr McCouaig’s mental health deteriorate with a potential period of work-related absence on personal leave.

[190] In these circumstances, I consider that Mr McCouaig in all probability would have been employed by Colliers for at least a further six months.

Mitigating efforts: section 392(2)(d)

[191] Mr McCouaig moved quickly after 9 August to seek alternative work. He mitigated his loss as best able. I make no discount to the compensation payable on that account.

Remuneration earned: section 392(2)(e)

[192] Mr McCouaig received one month’s pay in lieu of notice.

[193] Mr McCouaig found alternative work from 12 September 2018 with Smallacombe Building Group as a works estimator, albeit and at a lesser rate of pay. At Colliers he received an all up annual salary of $81,666 (being $73,908 plus 9.5% superannuation). At Smallacombe he is receiving approximately $55,723 per annum plus 9.5% superannuation ($5,824) totalling $61,547). Although it is agreed that the difference in earnings between Mr McCouaig’s employment at Colliers and his employment at Smallacombe is $277 per week, the amount is in fact higher ($350 per week 72) on account that Mr McCouaig is paid allowances (car, telephone) and overtime at Smallacombe whereas at Colliers he was paid an all up rate.

[194] I will make a deduction from compensation payable on account of Mr McCouaig’s earnings at Smallacombe from 12 September 2018. This will be based on a differential of $350 per week. I do not consider it appropriate to make a deduction for overtime earned in the new role, nor allowances in the nature of reimbursement of expenses.

Income likely to be earned: section 392(2)(f)

[195] Mr McCouaig’s work at Smallacombe is full time but not certain to be ongoing. He was initially placed on a two month trial and has continued beyond that period. Smallacombe is “happy with (his) work” but “should the work of the business drop off it would be difficult to support (his) continued employment.” 73 Given its short duration, Mr McCouaig’s employment at Smallacombe may be less secure than had he been employed at Colliers. However, having been so employed for just over five months, it is likely that Mr McCouaig will be employed by Smallacombe for at least the six month period relevant to determining compensation under the FW Act.

Other matters: section 392(2)(g)

[196] Mr McCouaig has taken six days of annual leave from his work at Smallacombe in order to give evidence in his unfair dismissal hearing and attend the hearing. He seeks that any discount for actual earnings at Smallacombe to not include those six days of paid annual leave. In other words, he seeks that the compensation order re-credit payment for those six days.

[197] In the circumstances of this matter, where relevant evidence only emerged in the lead-up to the hearing and during the hearing, I consider that a reasonable position. Having taken annual leave, Mr McCouaig has not been able to use that period as recreation. It has been litigation, not recreation. He has attentively and actively provided instructions to his father during hearing days. In the exercise of my discretion under section 392(2)(g) of the FW Act I will factor those six days into my compensation determination.

[198] There are no other matters or contingencies that need to be provided for.

Misconduct: section 392(3)

[199] I have found no reasonable basis for Colliers to have concluded that Mr McCouaig engaged in misconduct. No discount is to be applied on this ground.

Shock, Distress: section 392(4)

[200] Given his dismissal, Mr McCouaig is concerned about his chances of obtaining employment in the property management sector where he had worked for the past nine years. He considers that his reputation has been tarnished with a false accusation of wrongdoing. Be that as it may, the amount of compensation allowable by the statute does not include a component for shock, humiliation or distress, or other analogous hurt. Nor does it include any basis for punitive damages. Reputational damage is an analogous hurt which cannot be compensated in this jurisdiction 74. This decision may have some curing effect in that regard.

[201] My compensation order will make no provision for such alleged losses.

Compensation cap: section 392(5)

[202] The amount of compensation I will order does not exceed the six-month compensation cap.

Conclusion on compensation

[203] The compensation order I will make will be six month’s pay less the one month in lieu of notice paid by Colliers and the five months of earnings (and projected earnings) at Smallacombe. I do not accept Mr McCouaig’s submission that the one month in lieu not be discounted. That it was legally required to be paid is not to the point. This sum was paid by his then employer in lieu of the obligation he otherwise had to work for those earnings.

[204] The compensation order equates to five month’s remuneration (twenty two weeks) at the base salary differential between Mr McCouaig’s earnings at Colliers and his earnings at Smallacombe, plus superannuation. I do not consider it appropriate to include in this discount overtime earned by Mr McCouaig at Smallacombe.

[205] I calculate this differential as $7,700 (22 weeks at $350 per week salary differential per week). In the particular circumstances of this case I consider it in the interests of fairness to re-credit the amount attributable to the six days of annual leave used by Mr McCouaig to prosecute his claim. This equates to $915.60. 75

[206] I will also order that the employer pay (in addition) superannuation on this amount at the applicable rate of Mr McCouaig’s contract of employment (9.5%) into the superannuation fund the employer was contributing on Mr McCouaig’s behalf whilst he was employed.

[207] Thus, the amount of compensation I will order is $8,615.60 plus 9.5% superannuation ($818.48). I will order that this be paid within 14 days (by close of business 22 March 2019).

Conclusion

[208] I find that Mr Andrew McCouaig was dismissed by Colliers within the meaning of the FW Act.

[209] I find that Mr McCouaig’s dismissal was harsh, unjust and unreasonable. It was based on a mistaken allegation of wrongdoing and a decision-making process that lacked procedural fairness.

[210] I consider that a remedy of reinstatement is inappropriate.

[211] I consider that a remedy of compensation is appropriate. In conjunction with the publication of this decision I issue an order granting Mr McCouaig’s application and ordering that by 11.59pm on 22 March 2019 Colliers:

1. pay Andrew McCouaig the sum of $8,615.60 gross to be taxed according to law; and

2. pay the amount of $818.48 into the superannuation fund in respect of which Colliers was making contributions on behalf of Andrew McCouaig whilst he was in their employ.

DEPUTY PRESIDENT

Appearances:

R. McCouaig, for the Applicant

R. Wall, for the Respondent

Hearing details:

4 and 5 December 2018

22 and 23 January 2019

26 and 27 February 2019

Adelaide.

Printed by authority of the Commonwealth Government Printer

<PR705644>

 1   Audio transcript 5 December 2018 4.46pm

 2   Applicant’s Written Closing Submission Part 3 ‘The Proceedings’

 3   Audio transcript 27 February 2019 2.23pm

 4   R5 Narkiewicz Statement Attachment 10

 5   Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509

 6   R4

 7   R1 Gray Statement paragraph 9

 8   R1 Gray Statement paragraph 10

 9   R1 Gray Statement paragraph 7; R6 Podnar Statement paragraph 6

 10   R3 Young Statement paragraph 6

 11   A2 McCouaig Statement page 2

 12   A2 McCouaig Statement page 4 - 5

 13   A10 document 1

 14   A10 document 2

 15   R7

 16   R6 Podnar Statement paragraph 12

 17   R6 Podnar Statement paragraph 13

 18   R9 and R8

 19   A2 McCouaig Statement page 8

 20   R10

 21   A10 Letter 18 July 2018

 22   A10 Email Fischer-White to McCouaig 18 July 2018 3.13pm

 23   A21 My Plan 2018

 24   Mr Podnar Audio transcript 26 February 2019 12.30pm

 25   A10 Emails McCouaig to Beagley 26 July 2018 9.59am and 10.29am; Email Beagley to McCouaig 26 July 2018 3.13pm

 26   R5 Narkiewicz Statement Attachment 2

 27   A5 Trezise Statement

 28   A15 and A16. A16 refers to the time of it being sent as 8.27pm not 7.57pm. A15 and Mr Trezise’s evidence is 7.57pm. The 30 minute differential may be a consequence of interstate time differences.

 29   Ms Laird Audio transcript 5 December 2018 11.46am to 12.05pm

 30   Mr Podnar Audio transcript 23 January 2019 11.05am

 31   R13

 32   A13

 33   R5 Statement of Narkiewicz paragraph 16

 34   Ms Gray Audio transcript 5 December 2018 at 10.54am

 35   Mr Podnar Audio transcript 26 February 2019 11.40am

 36   R4

 37   R5 Narkiewicz Statement Attachment 9

 38   R5 Narkiewicz Statement paragraph 18

 39   R5 Narkiewicz Statement paragraph 20

 40   Ms Narkiewicz Audio transcript 21 January 2019 11.06am

 41   A14

 42   A8

43 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

 44   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373

 45   King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]

 46   Edwards v Guidice (1999) 94 FCR 561 [6]-[7]

 47   A8

 48   F3 21 September 2018 (Attachment)

 49   Mr Podnar Audio transcript 23 January 2019 10.23am “I was incorrect, I can’t validate it, that’s all, sorry”

 50   R6 Podnar Statement paragraph 19

 51   A9

 52   A5 Trezise Statement paragraph 5

 53   A7

 54   A5 Trezise Statement paragraph 6

 55   R6 Podnar Statement paragraph 18

 56   Mr Young Audio transcript 5 December 2019 2.10pm

 57   Ms Narkiewicz Audio transcript 22 January 2019 11.25am “my recollection is that Andrew admitted or acknowledged that he was aware that the fire had taken place” and at 11.28am “Nik conveyed to me that Andrew had admitted to knowing about the fire”

 58   Mr Podnar Audio transcript 26 February 2019 10.16am to 10.18am

 59   A14

 60   R5 Narkiewicz Statement Attachment 8 paragraphs 1 and 2

 61   R5 Narkiewicz Statement Attachment 8 paragraph 4

 62   Mr Podnar Audio transcript 23 January 2019 9.42am

 63   R5 Narkiewicz Statement paragraph 16; Ms Narkiewicz Audio transcript 21 January 2019 14.55pm

 64   Ms Narkiewicz Audio transcript 21 January 2019 14.55pm

 65   R7 for example Mr McCouaig’s responses during the first formal performance meeting” “I have three children under five, I don’t know if you know what that’s like having them hanging off you…”

 66   Mr Podnar Audio transcript 26 February 2019 10.52am

 67   Mr Podnar Audio transcript 26 February 2019 14.49pm

 68   Mr Podnar Audio transcript 26 February 2019 15.04pm

 69   R5 Narkiewicz Statement Attachment 8 paragraph 3

 70   KB v The Agency [2018] FWC 6937 at [66]; Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613 at [52]; Nemcic v Australian Electoral Commission [2018] FWC 5645 at [383] – [384]

 71   Print R0235, (1998) 88 IR 21, since updated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages [2013] FWCFB 431; 229 IR 6

 72   $81,666 per annum at Colliers (including superannuation); $61,547 per annum at Smallacombe (including superannuation): see final written submissions of McCouaig, Excluding superannuation, the annual remuneration was $73,908 at Colliers and is $55,700 at Smallacombe. The annual difference in salary excluding superannuation ($18,208) equates to $350 per week

 73   A22

 74   Guorgi v Transdev Queensland Pty Ltd [2019] FWCFB 898 at [46]

 75   Daily base rate of $152.60 per day ($55,700 divided by 365 days) x 6 days = $915.60