| [2019] FWC 7622 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Risyad Chileshe
v
EnergyAustralia Pty Ltd
(U2019/5919)
DEPUTY PRESIDENT MILLHOUSE |
MELBOURNE, 7 NOVEMBER 2019 |
Application for an unfair dismissal remedy – first and final warning – code of conduct – diversity and inclusion policy – racial stereotyping – discrimination – lawful and reasonable direction.
[1] Mr Chileshe was employed by EnergyAustralia as a customer save consultant for almost two and a half years. His employment ended on 16 May 2019 for three reasons:
(1) for making a comment to a work colleague which EnergyAustralia said was of a racially-stereotyping nature, in breach of its code of conduct and the diversity and inclusion policy (diversity policy);
(2) for making a comment to a work colleague which EnergyAustralia said was discriminatory due to the person’s sexual orientation, in breach of the code of conduct and the diversity policy; and
(3) for failing to follow a lawful and reasonable direction by discussing the investigation with witnesses or the complainants.
[2] Mr Chileshe contends that he was unfairly dismissed and seeks reinstatement pursuant to the Fair Work Act 2009 (Cth) (Act).
[3] For the reasons that follow, I am satisfied that Mr Chileshe was not unfairly dismissed within the meaning of s.385(b) of the Act. The application for relief from unfair dismissal is dismissed.
[4] Mr Chileshe attended a “team huddle” with other members of his work group on 15 March 2019. Mr Ravishankar Vincent was one of Mr Chileshe’s work colleagues and was present at the huddle. Mr Vincent is of Indian decent. 1 During the huddle, each employee was invited to share with their colleagues a piece of information personal to themselves. Before Mr Vincent had an opportunity to share any information about himself, Mr Chileshe said words to the effect of, “What, don’t tell us you’re related to Deepak Chopra?” Mr Vincent responded with words to the effect of, “That’s racist, Richard.” Mr Chileshe replied, “Oh, sorry.”
[5] EnergyAustralia submitted that Deepak Chopra is an Indian actor. However, Mr Chileshe gave evidence that Mr Chopra is a physician in alternative medicine. 2
[6] An employee who was present at the team huddle made a complaint to EnergyAustralia concerning Mr Chileshe’s statement to Mr Vincent. EnergyAustralia commenced an investigation into the matter. The People Advisor, Ms Suzanne Chen, met with seven employees who were present at the team huddle. Five of these employees advised Ms Chen of another workplace incident involving Mr Chileshe in December 2018.
[7] The incident in December 2018 involved a colleague named Ms Kathryn Leon. Ms Leon was speaking with a female colleague about the recent breakdown of her relationship. The topic moved to the subject of wanting children. Mr Chileshe said to Ms Leon, on his own evidence, words to the effect of, “You can’t have a baby.” This upset Ms Leon. She understood Mr Chileshe’s statement to mean that she was unable to bear children on account of her sexual orientation.
[8] Upon learning about Mr Chileshe’s statement to Ms Leon, the Customer Loyalty Leader, Mr David Jackson, determined that there should be an investigation into Mr Chileshe’s conduct concerning both incidents.
[9] Mr Chileshe was absent from work for approximately seven weeks due to a combination of illness, annual leave and a workers compensation claim. Following his return, on 6 May 2019, Mr Chileshe was provided with a “formal inquiry” email, which set out the allegations against him and invited him to a meeting the following day. Mr Chileshe was directed not to disclose any detail related to the investigation to any party that may be involved, and to treat all matters with confidence. 3
[10] Upon receipt of the formal inquiry email, Mr Chileshe spoke with Mr Vincent about the incident involving him. 4 Such action was contrary to EnergyAustralia’s instruction to treat the matters with confidence.
[11] Mr Chileshe attended the meeting on 7 May 2019 with his support person, Mr Jean Rosse. During the meeting, Mr Chileshe said that:
(1) he said to Ms Leon, “You can’t have a baby” 5 in December 2018. He said that his statement was not regarding her sexual orientation, but about her emotional state noting that she had just broken up with her girlfriend;6 and
(2) he said to Mr Vincent words to the effect of, “Come on Ravi, what don’t tell us you’re related to Deepak Chopra?” However, he denied that the statement was offensive.
[12] Mr Chileshe was invited to provide a written response to the allegations. 7 He did so in an email to Ms Chen on 8 May 2019. His response also addressed his concerns about the way he was treated at work.8 In relation to the incident involving Ms Leon, Mr Chileshe said:
“…Kathrine was telling me about the break up with her girlfriend. And how upset this break had made her. 5 minutes later she talks about really wanting a baby. I was shocked that someone who distraught and who just broke up with their partner was saying she wanted a baby. May be in that state of shock I said ‘you can’t have a baby…’ She instantly became dramatic, and was talking to every body else about what I said. She gave me no time to clarify or apologise, but next thing I knew, I saw her walking into a meeting room with a manager from another team, and her leaving early that day.” 9 [sic]
[13] In relation to the incident involving Mr Vincent, Mr Chileshe said:
“With respect to my comment I made to Ravi during a huddle. I want to say that in the Huddle we were all asked to tell something that no one at work knows about you. When it came to Ravi’s turn, it seemed, that he was having difficulty saying something. Even after some time I could see that he wanted to say something but the words wasn’t coming out. I said to Ravi “What? Don’t tell us your related to Depak Chopra?” To which he said to me “Richard…That’s racist”, and I said to him “oh sorry”…Again I didn’t hear anything more until Yesterday, even though the comment was made in the middle of March. I spoke to Ravi yesterday as I was shocked at the accusation, and I didn’t read the E-mail all the way through before I spoke to him. When I spoke to him, I asked if he was offended by my comment, and he told me ‘No.’ He told me after this that it was not him that made the complaint, and that he was angry that someone would take what I said to him as offensive. He also told me that when he said ‘Richard… That’s racist” we was joking...” 10 [sic]
[14] With respect to his concerns regarding his workplace treatment, Mr Chileshe said:
(1) The basis for his first and final warning in May 2018 was “suspicious” and he found it “extremely hard to believe” that anyone had been offended by what he had said (the first and final warning is discussed in detail below).
(2) There was a practice of offensive language being used in the workplace that EnergyAustralia had not addressed, and he had lodged a complaint about it.
(3) He was being targeted by management because he had stood up against compliance fails and had queried a new sales role.
[15] On 8 May 2019, Mr Chileshe was suspended from his duties (with pay) while the investigation continued. 11
[16] Mr Chileshe sent a further email to Ms Chen on 9 May 2019. 12 In summary, Mr Chileshe said:
(1) What he said to Mr Vincent was hyperbole and not a stereotype, and not meant to be taken literally. It was not said in a racist way.
(2) It was not in his best interests to keep the matter confidential. He was offended that he was forbidden to speak with Mr Vincent in particular.
(3) The comment to Ms Leon was not regarding her sexual orientation but about her emotional state.
(4) Ms Chen’s accusations were extremely bigoted towards him.
(5) He was dubious about Ms Chen’s desire to properly investigate the complaints.
(6) He wants his experience to be discussed and used as an example for others.
[17] The next meeting took place on 13 May 2019 with Mr Chileshe and his support person. Mr Chileshe was advised that his statements to Mr Vincent and Ms Leon breached EnergyAustralia’s code of conduct and the diversity policy. He was also told of EnergyAustralia’s concern that he had breached its direction to keep these matters confidential.
[18] Mr Chileshe was then provided with a “show cause” letter in which he was advised that EnergyAustralia was considering terminating his employment. He was invited to provide any further information, including whether there were any significant changes to his circumstances or other mitigating factors that were relevant to take into account. 13
[19] In his response to the show cause letter, 14 Mr Chileshe said that:
(1) At no point were his comments “insulting, disrespectful, condescending, racially, or homophobic, malice in its intensions [sic].”
(2) He felt “a familiarity” with Ms Leon and felt comfortable in making the comment to her.
(3) Mr Vincent did not take offence to what was said to him.
(4) He preferred to keep his health private as he did not want to use that as any excuse for his behaviour.
[20] A third meeting was held with Mr Chileshe and his support person on 16 May 2019. Mr Chileshe was advised that a decision had been made to terminate his employment on account of his breaches of the code of conduct and the diversity policy. It was said that EnergyAustralia had regard to the first and final written warning that Mr Chileshe had received 12 months prior. Mr Chileshe was also advised that had demonstrated a failure to follow a lawful and reasonable direction. He was provided with a termination letter which confirmed the dismissal and provided him with two weeks’ pay in lieu of notice. 15
[21] In May 2018, Mr Chileshe received a first and final written warning following a training session that he attended with his colleagues. Mr Chileshe participated in an exercise which was designed to assist the attendees with identifying a customer’s concern by telephone. The training involved diagnosing a customer’s issue as if one was a doctor.
[22] Mr Chileshe said that the group asked the trainer a lot of questions without diagnosing the issue. Mr Chileshe was frustrated by the exercise. He gave the following evidence about what next occurred:
“In my frustration with the trainer I said, ‘Then ask these guys (the three Indians sitting next to me).’ The trainer then asked, ‘why these guys?’ at which I replied “Their Indians, and all Indians are doctors.” 16 [sic]
[23] It was also found by EnergyAustralia that when one of the three employees to whom Mr Chileshe’s comment was directed stated that he or she was not Indian, Mr Chileshe stated words to the effect of, “You can be a taxi driver then.” 17
[24] An attendee at the training session made a complaint about Mr Chileshe’s statements. An investigation was conducted. On 24 May 2018, EnergyAustralia issued Mr Chileshe with a first and final warning having concluded that his statements breached its code of conduct, values and the diversity policy. 18 The warning letter stated that any further stereotypical or discriminatory comments could result in termination of employment.19
[25] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. There was no dispute and I find that the application was made within the 21 day period required by s.394(2); Mr Chileshe was protected from unfair dismissal within the meaning of s.382; the Small Business Fair Dismissal Code is inapplicable; and the dismissal was not a case of genuine redundancy.
[26] Section 385 of the Act sets out when a person has been unfairly dismissed. The issue in contention is whether the dismissal was “harsh, unjust or unreasonable” (s.385(b)). The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are contained in s.387 of the Act. Each of these matters is considered below.
[27] The consideration prescribed by s.387(a) of the Act is whether there was a valid reason for the dismissal. The Commission must satisfy itself of the validity of the reason and its factual underpinning. 20 In the context of a dismissal related to an employee’s conduct, the Commission must make a finding as to whether the conduct in question occurred.21
[28] EnergyAustralia has established a code of conduct which requires employees to be courteous and respectful to all persons encountered in the course of business. It confirms the expectation that employees comply with EnergyAustralia’s policies and procedures. 22
[29] EnergyAustralia also has a diversity policy. It contains a commitment to provide an inclusive work environment that is safe, respectful, flexible, fair, culturally appropriate, professional and free from inappropriate behaviour and discrimination. It contains an “inclusion commitment” through which EnergyAustralia confirms its pledge to create a supportive and inclusive internal community, set appropriate behavioural standards and create a workplace free of discrimination, adverse action, bullying and harassment. 23 The policy requires employees to avoid stereotyping others and treat everyone with dignity, courtesy and respect.
[30] It is not in dispute that Mr Chileshe attended training on EnergyAustralia’s code of conduct and diversity policy in February 2018. 24 He undertook remedial training on the code of conduct in May 2018 following receipt of the first and final warning.25
[31] Mr Chileshe said that he “confirmed” making the statements to Mr Vincent and Ms Leon which founded his dismissal. 26 It is not in dispute that the statements were made (although the precise content of Mr Chileshe’s statement to Ms Leon is a contested fact, which I consider further below).
[32] Mr Chileshe said that the following matters provide context for his statement to Ms Leon. He contends that these factors support his argument that the statement was not offensive.
[33] Mr Chileshe said that Ms Leon was talking personally to him about her relationship breakdown and said that she wanted a baby. 27 He said, “Kathrine had engaged me in a conversation, about her break up, and I interned replied [sic].”28 It was in this context that Mr Chileshe said to Ms Leon, “You can’t have a baby.”
[34] Mr Chileshe said he felt comfortable saying this to Ms Leon as they had spoken “on many things in the past about her health and private life.” 29 He said that he and Ms Leon “could joke around and be free to say anything to each other.”30 Mr Chileshe said that Ms Leon had previously called him “sexy,” “handsome” and was “extremely flirty towards him.”31 He said that she was comfortable in speaking about “a lot of private things that would embarrass a normal person.”32 However, he also said that he was unreceptive to Ms Leon’s greetings and responded with “a fake smile.”33
[35] In stark contrast to this, Ms Leon gave evidence that her relationship with Mr Chileshe was “non-existent” and that they did not interact at the workplace. 34 She denied acting in a flirtatious way or referring to Mr Chileshe as “sexy” or “handsome.”35
[36] While cross examining Ms Leon, Mr Chileshe conceded that the two did not have a lot to do with each other at the workplace, although occasionally they would “banter.” 36 In light of this concession, I accept that Mr Chileshe and Ms Leon had limited interaction in the workplace.
[37] Ms Leon explained the December 2018 incident in the following way:
“A few days prior to the Christmas break in December 2018, I was speaking with a colleague about a breakup I recently had with my female partner and returned to my desk. The Applicant overhead our conversation, and approached my desk and asked me words, or words to the effect of: ‘Did you break up with your boyfriend?’ I replied with words or words to the effect of: ‘No, I broke up with my girlfriend.’ The Applicant responded, ‘I didn’t know you were that way.’
I didn’t respond to the Applicant; I felt uncomfortable and I walked away from my desk.
Later the same afternoon, I was walking towards my desk with a colleague and we were discussing amongst ourselves how we were looking forward to one day being pregnant and having children. When I returned to my desk and sat down, the Applicant turned around from his desk and explained with words or words to the effect of: ‘When you get pregnant? You can’t get pregnant because you’re a lesbian!’
I immediately began to cry as I had never felt so dehumanised and left my desk.” 37
[38] I observed Ms Leon to be highly emotional when recalling the incident and describing how it affected her. She said that she was distraught by Mr Chileshe’s unsolicited comment and felt belittled by it. 38 She restated that she felt “dehumanised.”39 She visibly recoiled when Mr Chileshe asked her personal questions.40 She explained that she had not raised the incident with EnergyAustralia in December 2018 because the business was going through a restructure and she held concerns that a complaint may negatively affect her job security.41
[39] Ms Kayla Rozenboom was the colleague with whom Ms Leon discussed having children. Ms Rozenboom attended the Commission to give evidence. She said as follows:
“...So me and Kathryn were walking back from the Lolly Jar and we – I’m fairly sure we sat back at my desk which is opposite Risyad’s desk, and we were just joking around and saying, like, ‘We’re going to eat all these lollies’, like, and then we said something silly along the lines of,’ Oh, when we get pregnant we can just eat as many lollies as we want’. We were just joking around because we’re both, like, really conscious about our diet. And then Risyad made a comment which I don’t think it was meant to be malicious but I guess somebody is going to take it the wrong way, but he said something along the lines of, ‘People like you can’t get pregnant’, and Kathryn was a bit, like, ‘What did you just say?’ and then I think I just kind of – I might’ve like, just gone a bit awkward and didn’t know what to say, and I didn’t think Kathryn took it the wrong way, but then I saw that she was really upset, so – yes, but it obviously upset her. I didn’t know what to say.” 42
[40] Ms Rozenboom said that Mr Chileshe did not use the word “lesbian” when he made the statement, as contended by Ms Leon. 43 However, Ms Rozenboom said Ms Leon’s sexual orientation “was obviously insinuated in that comment that he made.”44
[41] There are inconsistencies in Mr Chileshe’s evidence. Contrary to Mr Chileshe’s response during the investigation, 45 and his evidence in these proceedings,46 Ms Leon was not talking personally to Mr Chileshe about her relationship breakdown and the fact that she wanted children. The evidence reveals that Ms Leon was having this conversation with Ms Rozenboom as they walked back from the lolly jar. Mr Chileshe was not a part of this conversation.
[42] Further, Mr Chileshe departed from his earlier evidence that he felt a familiarity with Ms Leon and they freely said anything to each other. He conceded that he had little to do with Ms Leon at work. This is at odds with his earlier expressed view of their relationship.
[43] The precise content of Mr Chileshe’s statement to Ms Leon is a contested fact.
(1) Ms Leon gave evidence that Mr Chileshe said, “You can’t get pregnant because you’re a lesbian.” Mr Chileshe challenged Ms Leon’s recollection to the extent that he is alleged to have said “…because you’re a lesbian.” 47
(2) Ms Rozenboom gave evidence that Mr Chileshe said words to the effect of, “People like you can’t get pregnant.” She said that Mr Chileshe did not use the word “lesbian.” Mr Chileshe did not challenge Ms Rozenboom’s recollection at all. 48
(3) Mr Chileshe gave evidence that he said, “You can’t have a baby.”
[44] I accept Mr Chileshe’s contention that he did not use the word “lesbian” when he made the statement. Ms Rozenboom’s evidence confirms this and I found Ms Rozenboom to be a credible witness. She was unequivocal about what she heard Mr Chileshe say. She responded to questions succinctly and without delay.
[45] The inconsistencies in Mr Chileshe’s evidence reduce the weight that I am able to attribute to his recollection of the statement. Accordingly, I prefer the evidence of Ms Rozenboom that Mr Chileshe said words to the effect of, “People like you can’t get pregnant.” In support of this conclusion, I also note that Ms Leon recalled Mr Chileshe using the words “You can’t get pregnant…” This differs to Mr Chileshe’s evidence that he said, “You can’t have a baby.”
[46] Shortly before Mr Chileshe made this statement, he had learned of Ms Leon’s sexuality. It is not in dispute that Mr Chileshe asked Ms Leon if she had broken up with her boyfriend. Ms Leon responded that she had broken up with her girlfriend. Mr Chileshe said that he did not know that she was “that way.”
[47] Having regard to the above findings, I do not accept Mr Chileshe’s contention that he made the statement on account of Ms Leon’s emotional state. I am satisfied that his comment to the effect of, “People like you can’t get pregnant” intimated that Ms Leon was unable to have children on account of her sexuality. The comment was taken this way by both Ms Leon and Ms Rozenboom. I also do not accept Mr Chileshe’s argument that the statement was not offensive on account of his relationship with Ms Leon. Ms Leon gave evidence that the statement offended her and made her feel dehumanised.
[48] On an objective view, I find that the statement was offensive and discriminatory. Mr Chileshe breached the diversity policy by failing to maintain an environment free from inappropriate behaviour and discrimination. He thereby breached the code of conduct.
[49] Mr Chileshe advanced three matters that he says provides context for his statement to Mr Vincent. He contends that these factors support his argument that the statement was not offensive.
[50] Firstly, Mr Chileshe submitted that there was a running joke at the workplace which involved his colleagues saying, “That’s racist, Richard” (even when nothing was said that could constitute racism). 49 He said that this practice had commenced after he was issued with the first and final warning. Mr Chileshe contended that Mr Vincent was participating in the running joke when he said, “That’s racist, Richard.” However, Mr Vincent this. He said that the first time he was told about the running joke was at the hearing. Mr Vincent also said that he did not recall any of his colleagues mentioning such a joke.50 I accept Mr Vincent’s evidence that his response was not in keeping with a running joke in the workplace. There is no other material before me which evidences the running joke.
[51] Secondly, Mr Chileshe said that Mr Vincent did not find his comment to be offensive. Mr Vincent confirmed this position and I accept his evidence. He said that he viewed the statement to be “stereotyping” but he “did not take it as an offensive statement.” 51 Mr Vincent said he had informed EnergyAustralia during the investigation that he had not taken offence.52 He said that he understood that the statement was intended as a joke.53 There is some evidence that Mr Vincent was responding in kind when he said, “That’s racist, Richard.”54 I have taken Mr Vincent’s response to this effect into consideration and weighed this against Mr Oswald’s evidence that Mr Vincent said to him after the team huddle that he was “a little shocked” by the statement.55
[52] Thirdly, Mr Chileshe said that the motivation behind the statement was not intended to cause offence. He said:
“Deepak Chopra is a world-renowned physician in alternative medicine and Ravi is studying his doctorate in medicine and it was meant to be light-hearted because they both clash in their ideals of alternate and normal medicine, or scientific medicine, and that’s when he replied back, ‘That’s racist, Richard.’ It never occurred to me that what I was saying was offensive, so I apologised, I said, ‘Oh, I’m really sorry.’” 56
[53] In its investigation, EnergyAustralia concluded that Mr Chopra is an Indian actor. 57 How it arrived at this finding is not clear on the evidence. However, in his 8 May 2019 response, Mr Chileshe said, “In fact, who wouldn’t want to be related to someone famous, or be a doctor?”58 I am therefore satisfied that EnergyAustralia’s misunderstanding did not affect the integrity of the investigation or compromise Mr Chileshe’s capacity to understand the allegations or respond to them (and nor was this contended).
[54] During the investigation, Mr Chileshe said that “the truth is that Ravi looks very similar to Deepak Chopra.” 59 Mr Chileshe explained that his remark was a compliment.60 He drew other comparisons between his colleagues and prominent figures with reference to similarities he saw in their appearances.61
[55] Having regard to the above matters, I consider that Mr Chileshe made the statement to Mr Vincent based on his view that:
(1) Mr Vincent is similar in appearance to Mr Chopra; and
(2) Mr Vincent and Mr Chopra share a commonality on account of their medical background.
[56] The issue for me to determine is whether the statement gave rise to a valid reason for the dismissal. In order to determine this, I first consider whether the statement breached the code of conduct and the diversity policy.
[57] While Mr Vincent said he did not take offence to the statement and may have been light-hearted in his response to it, this is not solely determinative of whether the statement constitutes a breach. Irrespective of his reaction to it, Mr Vincent gave evidence that he understood the statement to be a stereotype. His response was such that it drew an immediate apology from Mr Chileshe. The diversity policy requires that employees avoid stereotyping others.
[58] The term “stereotype” carries more than one meaning. For relevant purposes, the Macquarie Dictionary defines the term as:
(1) (noun) a set form; convention; standardised idea or concept.
(2) (verb) (stereotyped, stereotyping)
a. to make a stereotype of.
b. to give a fixed form to.
c. to characterise according to a conventional idea or concept.
[59] The term “racial” means:
(1) relating to or characteristic of race or extraction, or a race or races.
(2) relating to the relations between people of different races.
[60] The fact that Mr Vincent and Mr Chopra may be similar in appearance does not, of itself, persuade me that Mr Chileshe’s statement was a racial stereotype. However, on Mr Chileshe’s own evidence, the statement reflected Mr Chopra’s status as a physician and Mr Vincent’s doctorate in medicine. In light of this view, and against the backdrop of his earlier statement that “all Indians are doctors,” I find that the statement is a characterisation of Mr Vincent according to a conventional idea or concept (that all Indians are doctors), based upon his race.
[61] Accordingly, I find that Mr Chileshe did not observe the behaviours of the diversity policy to avoid stereotyping others. His statement, in the context of his conduct history, is a further example of stereotyping on account of race. Mr Chileshe thereby breached the code of conduct.
[62] An employee’s failure to follow a lawful and reasonable direction can constitute a valid reason for dismissal. 62
[63] On 6 May 2019, EnergyAustralia sent an email to Mr Chileshe setting out the allegations against him and instructing him not to disclose details with any person who may be involved with the investigation. 63 This instruction was given to preserve the integrity of the investigation and I accept that it was a lawful and reasonable direction.
[64] Mr Chileshe’s evidence is that he did not read to the end of the email and therefore did not appreciate the instruction given. He said that he just wanted to know if he had upset Mr Vincent. 64 I accept Mr Chileshe’s evidence that he was shocked to have received the email65 and reacted by approaching Mr Vincent without regard to the direction contained within it.
[65] Mr Chileshe spoke with Mr Oswald, in his capacity as acting team manager, and asked if he could speak with Mr Vincent about the allegation. Mr Chileshe said that Mr Oswald approved the discussion and advised him to set his status to “personal.” 66 Mr Oswald then contacted Ms Chen to inform her of this. Mr Oswald was advised that Mr Chileshe “shouldn’t have been doing that”67 and was instructed to interject to end the conversation, which he did.68
[66] It is not in dispute that by speaking with Mr Vincent, Mr Chileshe had contravened the direction that he had been given that day.
[67] Following this, Mr Oswald had a private discussion with Mr Chileshe. Mr Chileshe said that he often heard comments in the workplace that offended him. He said that, moving forward, he would make formal complaints about these matters. 69 Another employee, Mr Nicholas Velevski, also gave evidence that Mr Chileshe had made a similar statement to him to the effect that, “So from now on, I’m just letting you know that if I hear things that I don’t like I will then make a formal complaint. I’m warning you now.”70
[68] EnergyAustralia viewed Mr Chileshe’s conduct as a threat to lodge complaints against other employees due to their involvement with the investigation. 71 However, this contention has not been made out.
[69] The evidence discloses that Mr Chileshe’s “threat” related to his own concerns, which pre-dated the incidents with Mr Vincent and Ms Leon. These concerns are identified in Mr Chileshe’s evidentiary material and include matters such as swearing in the workplace and other behavioural issues. 72 There is no evidence that Mr Chileshe’s warning was a threat to make complaints in retribution for any employees’ involvement with the investigation. Indeed, it is not apparent on the evidence that Mr Chileshe had any knowledge at that time of whether Mr Oswald or Mr Velevski were even involved in the investigation.
[70] Mr Chileshe informed EnergyAustralia at the 7 May 2019 meeting that he had spoken with Mr Vincent. He was verbally advised by Ms Chen that he was not to engage with or speak to any of the parties involved in the investigation or encourage them to retract their statement. 73
[71] EnergyAustralia subsequently suspended Mr Chileshe from his duties and gave him a further written direction to the same effect on 8 May 2019. There is no evidence before me of any further breach after 6 May 2019.
[72] I find that EnergyAustralia had a valid reason for the dismissal based on the statements made to Mr Vincent and Ms Leon by Mr Chileshe, which breached the code of conduct and diversity policy. The breaches followed a first and final written warning that was issued 12 months prior for stereotyping colleagues (whom he believed to be Indian) as doctors or a taxi driver. My conclusion weighs against a finding that the dismissal was harsh, unjust or unreasonable.
[73] While it is not in dispute that Mr Chileshe failed to follow a lawful and reasonable direction on 6 May 2019, I am not satisfied that this gives rise to a valid reason for the dismissal on account. Mr Chileshe was misinformed by Mr Oswald that he was able to have a discussion with Mr Vincent. That discussion ended immediately upon Mr Oswald interjecting. The subsequent discussion with Mr Oswald (and later, Mr Velevski) concerned matters unrelated to the allegations themselves. Any contention that there was a subsequent breach by Mr Chileshe after 6 May 2019, including on 13 May 2019, has not been made out. 74
[74] I am satisfied that Mr Chileshe was notified of the reason for the dismissal prior to the decision to terminate his employment. 75
[75] It is not in dispute that Mr Chileshe was informed on 13 May 2019 that the allegations were substantiated and constituted a breach of the code of conduct and the diversity policy. Mr Chileshe was invited to show cause as to why his employment should not be terminated.
[76] A termination meeting was held on 16 May 2019. EnergyAustralia notified Mr Chileshe that his employment was terminated on account of the substantiated breaches. These matters were confirmed in a termination letter.
[77] This matter weighs against a finding that the dismissal was harsh, unjust or unreasonable.
[78] I am satisfied that Mr Chileshe was given an opportunity to respond to the reasons for the dismissal. 76
[79] The evidence discloses that EnergyAustralia set out its concerns regarding Mr Chileshe’s conduct both orally and in writing and provided him with opportunities to respond orally and in writing. This process included the provision of a show cause letter to which Mr Chileshe responded on 14 May 2019.
[80] Mr Chileshe has raised a concern that EnergyAustralia did not advise him of the identities of the complainants. 77 I do not consider that this had any bearing upon Mr Chileshe’s capacity to respond to the allegations. The identity of each complainant is immaterial in circumstances where it is not in contest that the statements were made by him.
[81] This matter weighs against a finding that the dismissal was harsh, unjust or unreasonable.
[82] There is no dispute that Mr Chileshe attended meetings to discuss the conduct concerns, with Mr Rosse as his support person. I find that the issue of an unreasonable refusal does not arise.
[83] This matter weighs against a finding that the dismissal was harsh, unjust or unreasonable.
[84] Mr Chileshe submitted that performance issues formed a basis for the termination of his employment. 78 He said that EnergyAustralia’s decision to dismiss him was because of performance issues such as falsifying saves, for which he received a performance warning on 30 October 2018.79 Mr Chileshe contended that he was singled out and treated differently to other employees80 and that the performance warning he received was unfair.81
[85] Mr Chileshe also said that his compliance fails were relied upon to strengthen the reasons for termination. 82 He said that his compliance fails increased after he received the first and final warning in May 2018. He said that this was in retaliation for an email he wrote to EnergyAustralia complaining about the removal of bonuses83 and for other concerns he had expressed in writing to management about the requirements for compliance.84 Mr Chileshe said that he was observed more closely by EnergyAustralia in relation to compliance than other employees.85
[86] Mr Chileshe said that the termination letter supports his argument. It contains a disciplinary summary, which lists the performance-based warnings he received during his employment. The termination letter states that, “In all of the circumstances, EnergyAustralia has decided to terminate your employment…” 86 Mr Chileshe submitted that “all of the circumstances” included the performance history summarised in the termination letter.
[87] EnergyAustralia said that the dismissal was unrelated to Mr Chileshe’s performance concerns. It accepted that the termination letter listed all of Mr Chileshe’s previous performance warnings and disciplinary sanctions. However, it said that this reflected its approach to summarising an employee’s employment history in such letters.
[88] I am satisfied on the evidence before me that the dismissal grounds did not include Mr Chileshe’s performance issues. I have reached this conclusion having regard to the following:
(1) Mr Jackson determined that an investigation should occur in respect of the statements that Mr Chileshe made to Mr Vincent and Ms Leon. The “formal inquiry” email provided to Mr Chileshe on 6 May 2019 referred only to these two incidents. It did not extend to performance-based concerns. 87
(2) The notes of the 7 May 2019 meeting evidence that the discussions were confined to the two conduct related allegations and the first and final warning from May 2018. 88 This was confirmed in writing to Mr Chileshe the following day. There is no reference to Mr Chileshe’s performance in this material.89
(3) The meeting on 13 May 2019 was for the purpose of confirming that the allegations were substantiated and breached the code of conduct and the diversity policy. Mr Chileshe was invited to show cause as to why his employment should not be terminated on account of his “conduct at work” arising from the substantiated breaches and the first and final warning previously received. 90
(4) A discussion occurred at the 13 May 2019 meeting in which it appears that EnergyAustralia sought to clarify the subject matter of the show cause letter. Mr Chileshe asked, “How does my compliance fails have anything to do with this?” The meeting notes reveal that Mr Chileshe was told that, “This is a summary of disciplinary actions. Your show cause letter is in relation to having had a first and final warning for racially stereotypical comments and your repeated behaviours.”
(5) Mr Jackson was a decision maker in respect of Mr Chileshe’s dismissal. He gave evidence that Mr Chileshe’s “disciplinary/performance matters did not form part of the Respondent’s decision to terminate the Applicant’s employment” and confirmed this evidence at the hearing. 91
[89] It is clear that the termination letter lists Mr Chileshe’s performance warnings. I accept that this may have led to some confusion on Mr Chileshe’s part concerning the reason for the dismissal. However, the termination letter must be read as a whole and against the backdrop of the investigation process, meetings and correspondence that preceded it.
[90] The termination letter confirms that the dismissal was for the substantiated breaches of the code of conduct and diversity policy regarding the statements to Mr Vincent and Ms Leon, having regard to the first and final warning. 92 EnergyAustralia described this conduct as “unacceptable.” These matters squarely reflect the subject matter of the investigation into Mr Chileshe’s conduct that preceded the termination letter.
[91] I am satisfied on the evidence before me that Mr Chileshe’s dismissal did not relate to unsatisfactory performance. It is therefore unnecessary for me to consider whether Mr Chileshe was warned about any unsatisfactory performance before the dismissal. It follows that the consideration at s.387(e) is a neutral factor in determining whether the dismissal of Mr Chileshe was harsh, unjust or unreasonable.
[92] EnergyAustralia is a large employer. There is no evidence that its size, in and of itself, affected the procedures adopted in effecting the dismissal. There was no absence of a dedicated human resources function. I consider these matters to be a neutral factors in determining whether the dismissal was harsh, unjust or unreasonable.
[93] Section 387(h) provides the Commission with broad scope to consider any other relevant matters. I have had regard to the following issues in considering whether the dismissal of Mr Chileshe was harsh, unjust or unreasonable.
[94] Mr Chileshe raised concerns about the fairness of the May 2018 investigation. 93 He said that he spoke with many of the attendees at the training session, including the three staff that he had directed his comments to, and no one had indicated to him that they had taken offence.94 Notwithstanding this, the evidence is that a complaint was made and Mr Chileshe admitted to having made the statements complained of. This formed the basis for the first and final warning.95 Given Mr Chileshe’s concession at that time, I do not make any further findings about the May 2018 investigation.
[95] Following receipt of the first and final warning, Mr Chileshe was required to undertake remedial training on the code of conduct. Mr Chileshe contends that the training module did not expressly deal with stereotyping. 96 However, this submission fails to take into account the evidence before me that:
(1) Mr Chileshe was trained on the diversity policy in February 2018, which refers to stereotyping. This was not in dispute.
(2) Mr Chileshe accepted that the first and final warning summarised his obligations under the diversity policy not to stereotype others. 97
(3) Mr Chileshe also accepted that the People Advisory Leader had met with him in May 2018 to provide specific coaching about the content of the first and final warning and the expectations of him moving forward. 98
(4) The code of conduct requires employees to behave with courtesy and respect.
[96] In these circumstances, I find it improbable that Mr Chileshe did not understand EnergyAustralia’s conduct expectations. Any concerns on Mr Chileshe’s part as to the gap in the training module is mitigated by the one on one coaching he received from the People Advisory Leader.
[97] Mr Chileshe raised concerns that the statement to Mr Vincent was not brought to his attention until two months after it was made. 99 However, the evidence is that Mr Chileshe was absent from work for approximately seven weeks due to a combination of illness, annual leave and a workers compensation claim.100 Following his return to work, Mr Chileshe was invited to the first investigation meeting. Accordingly, no issues of procedural fairness arise from the short delay occasioned by Mr Chileshe’s absence.
[98] Mr Chileshe submits that EnergyAustralia relied upon a five-month old complaint concerning Ms Leon in its pursuit to terminate his employment. 101 However, this is not an accurate reflection of the evidence before me. Ms Leon explained why she did not make a complaint to EnergyAustralia in December 2018. Accordingly, the issue was not known to EnergyAustralia until a number of employees informed Ms Chen during their witness interviews regarding Mr Chileshe’s statement to Mr Vincent. As soon as EnergyAustralia learned of the incident concerning Ms Leon, it took steps to investigate the conduct.
[99] Mr Chileshe said that he had made complaints about inappropriate conduct and language used by Ms Leon and others in the workplace, but this had not attracted a sufficient (in his view) disciplinary response from EnergyAustralia. 102 Mr Chileshe contends that EnergyAustralia did not enforce its code of conduct consistently. He reported his concerns regarding offensive language in late 2018.103 However, the evidence is that Mr Chileshe’s manager responded to the concerns and cautioned staff that using offensive language contravened the code of conduct.104
[100] On 1 February 2019, Mr Chileshe emailed his manager advising that the offensive language was “slowly becoming bad again.” 105 He was dissatisfied with EnergyAustralia’s response to this, including that Ms Leon and Mr Velevski had not been given a warning for their respective conduct.106 Mr Chileshe made a further complaint on 7 May 2019 regarding conduct he said he observed Mr Velevski engage in, which he contended was worse than his statement to Mr Vincent.107 He also restated concerns he held with Ms Leon’s language at work.
[101] I am not persuaded that these matters support a finding of differential and unequal treatment. The conduct that Mr Chileshe alleges of Ms Leon and Mr Velevski is different in its nature to the matters that founded his dismissal. EnergyAustralia is entitled to adopt different disciplinary responses according to the workplace conduct it seeks to address. Further, there is no evidence before me as to the way EnergyAustralia has responded to Mr Chileshe’s most recent complaint of 7 May 2019. The evidence does not support a finding that that there has been an inconsistent application of the code of conduct, as contended.
[102] Mr Chileshe said that the investigation was a targeted attack to end his employment for emailing Mr Jackson about a company restructure that he said occurred without proper consultation. 108 The 2 May 2019 email to Mr Jackson raised concerns about the impact the restructure would have on Level 3 consultants.109 In addition, Mr Chileshe said that he had questioned a new sales role in early May 2019.110 I do not accept Mr Chileshe’s contention that the investigation was retribution for these emails. By early May 2019, the incidents concerning Mr Vincent and Ms Leon had already occurred. The complaints had been made to EnergyAustralia and the investigation was set to commence, subject only to Mr Chileshe’s return to work. I accept that the matters concerning Mr Vincent and Ms Leon would have been investigated irrespective of Mr Chileshe’s emails regarding these matters.
[103] I have taken into account Mr Chileshe’s concern that his dismissal took effect shortly after submitting a stress claim form. 111 However, the weight of the evidence does not support a finding that the decision to terminate the employment was for, or for reasons that included, the stress claim form.
[104] In the show cause letter, Mr Chileshe was invited to advance any additional matters that he wished EnergyAustralia to take into consideration. His response was that his health, including the symptoms of stress which he now contends affected him from approximately October 2018 to May 2019, 112 was private. He said that he did not want to rely on his health as an excuse for his behaviour.113 I am therefore satisfied that EnergyAustralia gave Mr Chileshe an opportunity to discuss his health issues and the weight that should be attached to them as part of the show cause process. Mr Chileshe chose not to share this information with EnergyAustralia. The facts before me do not disclose any matters sufficient to otherwise render the termination of employment harsh in this respect.
[105] Having considered each of the matters set out above, none weigh in favour of Mr Chileshe so as to render the dismissal harsh, unjust or unreasonable. There are no other matters that would lead me to reach this conclusion.
[106] Having considered each of the matters specified in s.387 of the Act, I am satisfied that Mr Chileshe’s dismissal was not harsh, unjust or unreasonable. Accordingly, I find that Mr Chileshe was not unfairly dismissed within the meaning of s.385(b) of the Act.
[107] The application is dismissed.
[108] On 11 September 2019, Mr Chileshe sent correspondence to my chambers and to EnergyAustralia advising that a statement made by Ms Leon during the hearing about his previous employment was untrue. In response, EnergyAustralia said that Ms Leon’s personal view partly informed her decision not to interact with Mr Chileshe in the workplace. 114 It was not necessary for me to consider this material further as it was not relevant to the issues before me to determine.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR714026>
Appearances:
R. Chileshe, Applicant
E. Henley, Respondent
Hearing details:
2019.
Melbourne.
September 10.
1 Witness statement of David Jackson (Exhibit 23) at p.3.
2 Transcript of proceedings dated 10 September 2019 (Transcript) [149].
3 Exhibit 18; Exhibit 23.
4 Exhibit 1 at [3].
5 Ibid at [16].
6 Exhibit 1 at [27] and Appendix 6; Exhibit 19.
7 Exhibit 19.
8 Exhibit 1 at [25] and Appendix 5.
9 Exhibit 7.
10 Appendix 5 to Exhibit 1; Exhibit 7.
11 Exhibit 8.
12 Exhibit 1 at [27] and Appendix 6 to Exhibit 1.
13 Exhibit 10.
14 Exhibit 11.
15 Exhibit 12.
16 Exhibit 1 at [52].
17 Exhibit 4.
18 Ibid.
19 See also Exhibit 19 at [3].
20 Robert Etienne v FMG Personnel Services Pty Ltd [2017] FWCFB 3864 at [46].
21 Ibid at [44].
22 Exhibit 14.
23 Exhibit 15.
24 Transcript [97]; Exhibit 5.
25 Exhibit 5.
26 Transcript [208].
27 Exhibit 7.
28 Exhibit 2 at [31].
29 Exhibit 11; Exhibit 1 at [30]-[31], [100] and Appendix 8.
30 Exhibit 1 at Appendix 4.
31 Exhibit 1 at [30]; Exhibit 2 at [13].
32 Ibid.
33 Exhibit 2 at [17].
34 Transcript [403].
35 Transcript [404]-[407].
36 Transcript [429].
37 Witness statement of Kathryn Leon (Exhibit 22) at [7]-[10].
38 Transcript [415].
39 Transcript [415].
40 Transcript [459]; Exhibit 1 at [30] and [100].
41 Exhibit 22 at [6].
42 Transcript [1079].
43 Transcript [1094].
44 Transcript [1081].
45 Exhibit 7.
46 Exhibit 2 at [31].
47 Transcript [425].
48 Transcript [1093]-[1100].
49 Exhibit 1 at [8]; Exhibit 2 at [7].
50 Transcript [281].
51 Transcript [247].
52 Transcript [283]. See also Exhibit 2 at [96].
53 Transcript [247] and [283].
54 Transcript [291]-[292].
55 Transcript [766].
56 Transcript [149].
57 See Exhibit 8.
58 Appendix 4 to Exhibit 1.
59 Exhibit 7.
60 Exhibit 2 at [6].
61 Appendix 4 to Exhibit 1; Exhibit 2 at [6].
62 Mr Raymond Briggs v AWH Pty Ltd [2013] FWCFB 3316 at [8].
63 Exhibit 19.
64 Exhibit 19 at [2]; Exhibit 1 at [3].
65 Exhibit 1 at [2].
66 Transcript [168] and [704].
67 Transcript [706].
68 Exhibit 1 at [10]; Exhibit 2 at [39].
69 Exhibit 24 at [5]-[6]; Transcript [184], [710]-[711]; Exhibit 2 at [41].
70 Witness statement of Nicholas Velevski dated 16 August 2019 (Exhibit 25) at [4].
71 Transcript [92].
72 Appendix 4 to Exhibit 1; Exhibit 2 at [44]-[48], [50] and Appendix 18.
73 Exhibit 19 at [2], [5] and the final (unnumbered) paragraph.
74 Exhibit 12.
75 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at pp.150-15; Previsic v Australian Quarantine Inspection Services Print Q3730.
76 RMIT v Asher (2010) 194 IR 1, pp.14-15 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at p.7.
77 Exhibit 2 at [62].
78 Transcript [1013]-[1014].
79 Exhibit 1 at [61].
80 Ibid at [63]-[65] and [107].
81 Ibid at [69].
82 Ibid at [71].
83 Ibid at [71]-[73] and [110]-[113].
84 Ibid at [73]-[79], [83]-[84] and Appendices 11, 12, 13, 14 and 16.
85 Exhibit 1 at [104]-[106]; Exhibit 2 at [71].
86 Exhibit 12.
87 Exhibit 18.
88 Exhibit 19.
89 Exhibit 8.
90 Exhibit 10.
91 Exhibit 23; Transcript [529]-[530].
92 Exhibit 12.
93 Exhibit 2 at [70].
94 Exhibit 7; Appendix 4 to Exhibit 2.
95 Exhibit 4.
96 Exhibit 1 at [60], [99] and [123]; Exhibit 7.
97 Transcript [137]-[138].
98 Transcript [135]-[136].
99 Exhibit 1 at [22].
100 Ibid at [94].
101 Ibid at [14], [97] and [126].
102 Ibid at [23], [98]-[99], [127] and Appendix 4; Exhibit 2 at [19]; Transcript [66].
103 Appendix 17 to Exhibit 2.
104 Exhibit 2 at [20]-[21].
105 Appendix 18 to Exhibit 2.
106 Ibid at Appendix 19.
107 Exhibit 2 at [53].
108 Exhibit 1 at [21] and [114]-[122].
109 Appendix 20 to Exhibit 1.
110 Exhibit 7; Appendix 4 to Exhibit 1.
111 Exhibit 1 at [21], [109], Appendices 3 and 20; Exhibit 2 at [96]-[97].
112 Exhibit 2 at [99] and [105].
113 Appendix 8 to Exhibit 1.
114 See also Transcript [405].