| [2020] FWC 3131 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Clint Verstandig
v
A.C.N 124 136 116 Pty Ltd T/A Sunchip Transport
(U2020/1017)
COMMISSIONER SIMPSON |
BRISBANE, 16 JUNE 2020 |
Application for Unfair dismissal – Applicant summarily dismissed – Alleged misconduct – Misconduct with one exception not made out – Misconduct not a valid reason for dismissal – Failure to afford procedural fairness – Dismissal Unfair – Applicant did not seek reinstatement – Compensation ordered.
[1] On 30 January 2020, Mr Clint Verstandig made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr Verstandig identified his former employer as Sunchip Transport P/L however the Respondent advised in its Form F3 Response that the employer was A.C.N 124 136 116 Pty Ltd T/A Sunchip Transport. Mr Veratandigs’ representative confirmed it accepts A.C.N 124 136 116 Pty Ltd T/A Sunchip Transport was Mr Veratandigs’ employer and I am content in accordance with section 586 of the Act for the application to reflect that A.C.N 124 136 116 Pty Ltd T/A Sunchip Transport is the Respondent.
[2] The matter was allocated to my Chambers on 18 March 2020. On 23 March 2020, correspondence was sent from my Chambers to the parties listing the matter for a directions conference on 31 March 2020. At the directions hearing, directions were settled (and later issued) for the filing of evidence and submissions by the parties and for the matter to heard as a telephone hearing on 13 and 14 May 2020.
[3] The hearing commenced on 13 May 2020 by telephone as programmed. Mr Verstandig was represented by Mr Robert Raiti, a Solicitor of Raiti Lawyers who was granted leave to represent Mr Verstandig, and Mr Dirk Koeppen, the General Manager of the Respondent, appeared on behalf of the Respondent.
[4] Soon after the commencement of the hearing, Mr Koeppen indicated he believed the hearing was going to proceed to Court at a future date. I explained to Mr Koeppen that at the directions hearing on 31 March, and in accordance with directions issued, it was clear the hearing was proceeding on 13 and 14 May 2020 and further, Mr Koeppen had advised my associate prior to the commencement of the hearing that witnesses were available to be contacted by phone.
[5] It was settled that the matter would proceed as programmed and in the event witnesses were unavailable, they could be called the following day if necessary.
[6] Mr Verstandig did not seek reinstatement and is seeking the maximum amount of compensation of 6 months’ pay. Mr Verstandig submitted that he has been unemployed since the date of his dismissal.
[7] According to the Respondents Form F3 response, it had 62 employees at the time of termination and is not a small business employer.
[8] Section 387 of the Act provides:
“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.”
[9] Mr Verstandig filed evidence consisted of a Statutory Declaration of 27 March 2020, 1 a Statutory Declaration dated 14 April 2020, 2 and six separate statutory declarations made in reply admitted as a bundle.3 The bundle of Statutory Declarations were dated 1 May 2020 in reply to Ms Rebecca Cushway and Ms Jana Costello, and 6 May 2020 in reply to Mr Mitchell McLeod, Mr Joshua Shepherd, Mr Daniel Thatcher and Mr Benjamin Rhodes.
[10] Mr Verstandig also filed statutory declarations signed by Mr Timothy Fitzgibbon, 4 Mr Joshua Sheppard, Mr Morgan Sama (dated 23 March 2020), Mr Mitchell Macleod (dated 17 March 2020) and Ms Lesie Wroe5 (dated 3 March 2020), who were all employed by the Respondent, except Ms Wroe who did work experience with the Respondent.
[11] Mr Raiti advised that Mr Sama would not be called as a witness. Given Mr Sama was not available for cross examination, his statutory declaration was not admitted into evidence and I do not intend to afford it significant weight.
[12] Mr Shepherd and Mr McLeod filed subsequent statutory declarations to those filed as part of Mr Verstandig’s case, as part of the Respondents case. I will deal with this issue in more detail below.
[13] Mr Verstandig was employed by the Respondent from 12 March 2015 to 13 January 2020. Prior to this, Mr Verstandig worked on and off for the Respondent for approximately 23 years since 1997. Mr Verstandig has worked for the Respondent as a truck driver and at the time of his dismissal, Mr Verstandig was employed in the role of Fleet Manager. Mr Verstandig said he worked around 110 hours a fortnight.
[14] Mr Verstandig said during the month of December 2019, he was managing both the Tuan and Gladstone Depots as Mr Koeppen and Mr Rhodes were on leave. He said around 20 December 2020, Mr Mark Blackberry, the Owner of the Respondent, phoned him as he did every day to see how things were going. At the end of the conversation, Mr Blackberry said he wanted to catch up with Mr Verstandig because he had been told Mr Verstandig had said some horrible things about Ms Costello the Occupational Health and Safety Officer, and had also apparently done some other disgusting things. Mr Verstandig said Mr Blackberry said he wanted to see Mr Verstandig face to face, man to man.
[15] Mr Verstandig said after that conversation, Mr Blackberry had been in the office on one to two occasions and never mentioned any issues with him until 13 January 2020.
Dismissal on 13 January 2020
[16] Mr Verstandig stated that he received a phone call from Mr Mark Blackberry, at approximately 5:00 pm on 13 January 2020, in which he was summarily dismissed from his employment due to allegations of misconduct.
[17] It is Mr Verstandig’s recollection that during this discussion, Mr Blackberry advised that he had consulted with the company’s solicitor and the Commission, and that he was advised to let Mr Verstandig’s go due to complaints made against him. Mr Verstandig said that Mr Blackberry explained that Mr Verstandig had walked past a workshop employee and had grabbed the employee’s testicles. Mr Verstandig said he told Mr Blackberry this was not true.
[18] Mr Verstandig said that the person in question had come and in seen him that morning and told him that Mr Dirk Koeppen had questioned him about the incident and he had denied it. Mr Verstandig said he explained that he only flicked the other employee on the bottom with a folder as he walked past to perform fuel dips.
[19] Mr Verstandig said that Mr Blackberry raised a further allegation that Mr Verstandig had made inappropriate comments about the Occupational Health and Safety Officer, Ms Jana Costello. Mr Verstandig denied this allegation and stated that he had a good relationship with Ms Costello on a professional basis.
[20] Mr Verstandig said that Mr Blackberry then stated that there were a couple of other complaints that were made, that these people had already made statements, and they might be suing Mr Verstandig. According to Mr Verstandig, he asked Mr Blackberry what this was about, to which Mr Blackberry stated that Mr Verstandig knew what he was talking about. Mr Verstandig denied knowing this and stated that he had no idea what Mr Blackberry was talking about. Mr Verstandig said Mr Blackberry repeated himself and he gave the same reply.
[21] Mr Verstandig said that following this, he said to Mr Blackberry that he had worked on and off for him for 23 years and swore he had no idea what Mr Blackberry was talking about. Mr Verstandig said that Mr Blackberry then said he still had to let him go as he had a new office woman working on the office. Mr Verstandig said Mr Blackberry said to him he couldn’t take any chances because of the “workplace chain of command laws”.
[22] Mr Verstandig said he then asked if Mr Blackberry could put him back in a truck and Mr Blackberry replied it would be best if he were to leave. Mr Verstandig said that Mr Blackberry said to him that it was up to Mr Verstandig if he wanted to take it further, however it could turn ugly for him. Mr Verstandig said he then asked Mr Blackberry where he would get another job with something like this against him, and Mr Blackberry said he would give Mr Verstandig a good referral.
[23] Mr Verstandig claimed he said to Mr Blackberry he knew where this was coming from, and ever since they had a meeting about safety concerns with some of the company trucks early in the year between himself, Mr Blackberry, Mr Koeppen and Mr Ben Rhodes the Maintenance Manager, he had been accused of doing things which are totally untrue.
[24] I invited Mr Koeppen to challenge Mr Verstandig on any of the content of his various statutory declarations. He chose not to, however made the general submission that no woman should be made to feel uncomfortable in the workplace. I explained to Mr Koeppen that if he did not challenge what Mr Verstandig was saying, the statement would come in as they are. He accepted that but indicated he would rely on the evidence of his witnesses.
[25] Mr Koeppen claimed that Mr Verstandig had bullied and harassed people into making statutory declarations to support him. I asked Mr Koeppen to identify who he claimed had been bullied to make a statement. Mr Koeppen said when people give their evidence it will come out.
Raising of safety issues by Mr Verstandig
[26] Mr Verstandig said in his second statutory declaration of 14 April 2020, that during 2019, he raised seven safety concerns about some of the trucks owned by the Respondent and this is what led to his dismissal. In his statutory declaration of 14 April 2020, Mr Verstandig listed the safety concerns that he has recorded in his diary. They are as follows:
“Issue (1) 14/05/2019 T Trailer brakes on trailer LT2 centre axel had been disconnected
Issue (2) 29.05.2019 Service truck Drover was told to disconnect brake lines on service truck than replace booster
Issue (3) 29/05/2016 The company low loader had (2) two of the (3)three axels had the brakes disconnected and been like this for one month
Issue (4) 29/05/2019 Truck TR1 had no park brakes (Mazie Brakes) for a least (1)) Ten weeks I spoke with Ben Rhodes about the issue he said he wasn’t sure what the problem was but was trying to fix it in the mean time the truck park brake wouldn’t work while being loader
Issue (5) 01/07/2019 Truck TR200 went to Gladstone workshop for service and review brakes on the 28th and 29/06/2019. The Driver picked the truck up on the 30/06/2019 when he returned he phoned Ben and told him the Brakes were not working. On the 01/07/2019 the day shift drive had taken the truck TR200 back to Gladstone with the same complaint, brakes not working. Ben Rhodes had a look and found the brakes had been fitted incorrectly. Only one axle had been corrected that day. On 28/07/2019 the worship staff at Maryborough corrected the other set of brakes almost a month later.
Issue (6) 18/07/2019 Truck TR1 still had no ark brake (Maxi Brake).”
[27] The seventh safety concern Mr Verstandig said he raised was on 9 September 2019. This was regarding one of the drivers contacting him advising that he was concerned he drove through a red light. Mr Verstandig submitted that the other driver who drove the same truck on the opposite shift also raised that he drove through a red light because of the issues with brakes on the low loader. Mr Verstandig contacted Mr Dirk Koeppen to advise him of the issue and states that Mr Koeppen had said that Mr Verstandig was the manager and had asked him why it had not been fixed. It is Mr Verstandig’s evidence that he stated to Mr Koeppen that every time he tried to fix things, Mr Koeppen overruled him.
[28] At the time, Mr Koeppen submitted that he said to Mr Verstandig what is he going to do about the safety issues considering he was the manager. In response to a question from me, Mr Koeppen confirmed that from the Respondent’s perspective, the safety issues were not relied upon as a reason for termination. Mr Verstandig said that every time he tried to have the particular truck off the road to have it repaired, Mr Koeppen would not allow it to be done, and he put the phone call on loud speaker because the truck was not safe.
[29] The Respondent provided two reasons for Mr Verstandig’s dismissal in its Form F3 response including, “Clem making sexual advances towards our female staff, Costello and Leslie Wroe” and “Clem pulled down the workshop fitter pants and grabbed his testicles”.
[30] Mr Verstandig said in his first statutory declaration that on the day of the scheduled phone conciliation conference with the FWC, the Respondent advised that it was unable to attend, and the next day Mr Verstandig said he received a phone call from a workshop employee stating that Mr Koeppen had been calling them into the office questioning them about the incident between themselves and Mr Verstandig.
[31] Mr Verstandig said that when the phone conciliation was held on 10 March 2020, a third reason for his dismissal was raised that he had made inappropriate comments about Ms Costello and Ms Wroe to workshop employees, put his finger up a workshop employees bottom, and bullied another workshop mechanic.
[32] In his oral evidence, Mr Verstandig again pointed to what he believed was the inconsistency between the reasons for dismissal at the time of dismissal and the time of the filing of the Form F3 response. At the time of termination, one of the reasons given for termination was things alleged to have been said to Ms Costello, however the Form F3 stated the reasons for dismissal was sexual advances toward Ms Costello and Ms Wroe. Mr Verstandig said however none of the statements filed by the Respondent said anything about him making sexual advances toward Ms Costello or Ms Wroe.
[33] Mr Verstandig stated that his dismissal was unfair as there was no valid reason for his dismissal on the grounds that the Respondent failed to provide evidence of the alleged misconduct.
Mr Fitzgibbons
[34] Mr Fitzgibbons, a mechanic employed by the Respondent, gave evidence stating that “at no time did I ever here (sic) Clem [Mr Verstandig] make any derogatory remarks about any of the female staff or experience girl here at the time”. Mr Koeppen did not wish to challenge Mr Fitzgibbons evidence and on that basis, he was not required to give evidence.
• Wroe
[35] Ms Wroe, who was performing work experience, stated in her statutory declaration as follows:
“I am writing this letter because I totally refute the allegation that I had sexual advances directed at me by Clem [Mr Verstandig] Verstandig who at the time of the allegation was my Supervisor at Sunchip Transport… at no time while I worked there or since was I ever contacted by any management staff and question about any apparent advances towards me by Clem or any else that worked there”.
[36] Mr Verstandig relied on the statutory declaration to advance his argument that there was no evidence of a complaint made against him by an employee of the Respondent. I asked Mr Koeppen if he knew whether Ms Wroe did not commence work experience with the Respondent until school holidays in October 2019, as claimed by Mr Verstandig. Mr Koeppen said he did not remember but accepted that may be right.
[37] Mr Koeppen said he did not wish to challenge the statutory declaration of Ms Wroe, including that she refuted that Mr Verstandig had made sexual advances toward her. On that basis, Ms Wroe was not required to give evidence.
Mr Sama
[38] Mr Sama, who worked in the workshop in 2019, filed a Statutory Declaration in support of Mr Verstandig, to the effect that he did not hear Mr Verstandig make any sexist remarks or play with his testicles. Mr Sama’s evidence was that at one stage early last year, he walked past Mr Sama and pulled his shorts down as a joke. The Statutory Declaration from Mr Sama said he had no issues with this. Mr Sama said only just recently he was asked about the incident by Dirk Koeppen and whether or not Mr Verstandig had done anything else at the time which he denied.
[39] In response to the Mr Verstandig’s outline of submissions, the Respondent filed affidavits of Mr Stuart Macleod (dated 17 April 2020), Mr Daniel Thatcher (dated 22 April 2020), Mr Ben Rhodes, Mr Joshua Sheppard (dated 23 April 2020), Ms Rebecca Cushway and Ms Jana Costello (dated 16 April 2020) to support its position. No submissions as such were filed in accordance with Directions issued on 31 March 2020.
Ms Cushway
[40] Ms Cushway provided an affidavit dated 16 April 2020, 6 stating that Mr Verstandig was rude to office staff on various occasions and that she and Ms Costello would avoid taking calls from him if he had a go at them. Ms Cushway claimed that on at least one occasion, he brought Romana, another member of staff, to tears. Ms Cushway was asked if she could provide any more specific information about this allegation. Ms Cushway did not give specific times and dates but repeated that Mr Verstandig had been rude, had sworn on occasion and had hung up.
[41] Ms Cushway accepted Mr Verstandig had rung up about time sheets and also had told drivers that they did not need to provide a doctor’s certificate if they had a day off which is contrary to the employer’s policy.
[42] Ms Cushway said that Mr Verstandig would try to cause conflict between the office and the staff by telling them one thing and then another. Mr Cushway said Mr Verstandig would provide incorrect payroll information then ring up to have a go at the office staff for not doing what he told the staff to do.
[43] Ms Cushway said that it was well known that Mr Verstandig could be horrible to them if things didn’t go his way. Ms Cushway said that she just tried to avoid him where possible to avoid conflict. Ms Cushway said that Mr Verstandig would call to complain about management if they did things he didn’t agree with. Ms Cushway said it put them in a difficult position as they didn’t want to get involved.
[44] It was put to Ms Cushway Mr Verstandig was always respectful and professional and she rejected that. It appeared from Ms Cushway’s evidence that the instances where she said Mr Verstandig was rude and swore was in the course of conversations about drivers’ pay.
[45] In his statutory declaration of 1 May 2020 in response to Ms Cushway’s statement, Mr Verstandig said that he found it (her evidence) unusual for Ms Cushway as she is known to make such comments. Mr Verstandig said he had nothing but respect for Ms Cushway and Ms Cushway was nothing but professional. Mr Verstandig said the only time he would phone other than the usual work issues was if a driver would come and see him about their pay being docked.
[46] Mr Verstandig said that he would phone to find out why drivers told him Mr Koeppen had changed their time sheets. Mr Verstandig said that the reason was because Mr Koeppen wasn’t going to pay drivers to sit and wait for their truck to finish the shift. He said that, as there are two drivers per truck on a rotating roster, all drivers had a weekly roster of their start times.
[47] Mr Verstandig said as for bringing Romona to tears, he had spoken to Romona and she denied the comments made by Ms Cushway. According to Mr Verstandig, Romona had said she had a good professional relationship with him and at no time did she find him to be rude or abusive. He said Romana had no knowledge that Ms Cushway had used her name in her statement.
[48] Mr Verstandig said he found it strange that if this was the way he was treating the office staff, then why have they waited until now to complain if it was such an issue. He said he thought it would have been brought to senior management last year when it was said to have occurred.
Mr Sheppard
[49] Mr Joshua Sheppard, a mechanic employed by the Respondent, provided an initial Statutory Declaration 7 filed by Mr Verstandig. Mr Sheppard stated that he has been questioned on two occasions by Mr Koeppen about whether or not Mr Verstandig had pulled down his pants and grabbed his testicles, and each time, he has denied the allegation. Mr Sheppard also stated that “I have never herd Clem [Mr Verstandig] say any sexist comments about any of the female office staff”. I asked Mr Sheppard whether he was still prepared to attest to this statutory declaration dated 23 March 2020. Mr Sheppard said, yes but added with the sexist comments he had never heard anything “from the horse’s mouth”.
[50] Mr Sheppard, however filed a later Affidavit dated 23 April 2020 8 as part of the Respondents case stating that in August or September 2019, Mr Verstandig had poked his bottom as a practical joke. Mr Sheppard said no claims or reports were made at the time as he warned Mr Verstandig not to do it again. Mr Sheppard also stated that he has “heard workshop staff say that Clem had said Lesley has big breasts, around the time of August/September 2019”.
[51] Mr Sheppard also said that Mr Verstandig had spoken to Mr Macleod about being late to work on several occasions when he had been out on calls/breakdowns the night before.
[52] Mr Sheppard said in oral evidence that he had worked for the Respondent since July 2019. Mr Sheppard repeated in his oral evidence that he agreed Mr Koeppen had asked him if Mr Verstandig had pulled down his pants and grabbed his testicles and he denied it on both occasions. Mr Sheppard accepted in his oral evidence that he had never heard Mr Verstandig make any sexist comments and had only heard that through third parties.
[53] In relation to his second statement, Mr Sheppard said Mr Verstandig touched him on his bottom – and the mechanic that was working with him at the time (Mitchell Macleod) said that it was with his thumb or hand.
[54] It was put to Mr Sheppard that Mr Verstandig did not put his finger up his bottom and he agreed and said “pants on obviously.” It was put to Mr Sheppard that he didn’t take the matter any further and just told him not to do it again and that’s the end of it. Mr Sheppard agreed with that. It was put to Mr Sheppard that Mr Verstandig denied doing that, and that Mr Sheppard would have been in a pit to change the gearbox. Mr Sheppard said the gearbox would not have been pulled out in the pit. Mr Sheppard said Mr Verstandig did “touch his arse” but he did not see what happened as he was looking down at the time.
[55] Mr Verstandig said in reply to the allegations by Mr Sheppard that they are “total lies” and he disagreed with them all. Mr Verstandig pointed to the inconsistency between Mr Sheppard’s first statement and his second statement.
[56] Mr Sheppard was asked in relation to the work experience person, Ms Wroe, what date she worked there. He said he didn’t know exactly but thought it was September 2019. Mr Sheppard was asked who told him that Mr Verstandig made the remarks about Ms Wroe. Mr Sheppard was not certain but thought it was Mr Mitchell McLeod. Mr Shepard accepted that it is only hearsay. It was put to Mr Sheppard that Ms Wroe did not start until October 2019. Mr Sheppard said the dates he put (in his second affidavit) were just a rough guess.
[57] Mr Sheppard was asked whether he thought Mr McLeod may have made up stories about Mr Verstandig because Mr Verstandig had been disciplining Mr McLeod. Mr Sheppard said he would like to think not and didn’t know.
[58] Mr Sheppard was asked that given he filed an initial statutory declaration and then another one later, if there was any pressure on anyone to change their version and he said no. It was put to Mr Sheppard that he said nothing about the incident (involving Mr Verstandig touching his bottom) in his first statement. He said the first statement was just saying what didn’t happen. He maintained that both statements were the truth.
[59] It was put to Mr Sheppard that when he was asked to make the second statement of 23 April 2020, he refused. He said no, and the reason was he was busy with work at the time. It was put to Mr Sheppard that at the time he made the first statutory declaration, he said to Mr Verstandig that all the allegations against him were lies. Mr Sheppard said he didn’t know if it was a lie or the truth if he didn’t hear it himself. He said he hadn’t heard anything about office staff.
[60] I referred Mr Sheppard to the content of Mr Verstandig’s statutory declaration in reply to his affidavit, where Mr Verstandig said the day after the last affidavits were sent from the Respondent around 15 April 2020, Mr Sheppard phoned him and said that Mr Ben Rhodes had told them this was getting out of hand and Mr Koeppen wanted them to put something in writing. I asked Mr Sheppard whether he rang Mr Verstandig around this time, and he agreed that he had been in touch with Mr Verstandig.
[61] Mr Sheppard agreed that he did make the comments to Mr Verstandig in a phone conversation as claimed by Mr Verstandig in his statutory declaration in reply. I put to Mr Sheppard Mr Verstandig’s claim that Mr Sheppard had told him he had filled out the statement but was not going to sign it. Mr Sheppard’s appeared to evade this question saying it was not signed at the time.
[62] I also asked Mr Sheppard whether he did say to Mr Verstandig, as claimed by Mr Verstandig, that Mr Koeppen had asked him to make the statement juicer. Mr Sheppard replied that “it was just going more in depth”. Mr Sheppard said he didn’t remember the juicer statement, but he said he had to go into a bit more depth. It appeared from this evidence that Mr Koeppen did in fact ask Mr Sheppard to add to an affidavit he had prepared. Mr Sheppard appeared to accept that Mr Verstandig had “touched his arse” and there was no groping.
[63] Mr Verstandig also denied the allegation that he made inappropriate comments about Ms Wroe. Mr Verstandig pointed to the fact that it was alleged he made the inappropriate comments in August or September 2019, however Ms Wroe did not start work experience until the October school holidays.
[64] Mr Verstandig said that he went to Mr Sheppard’s home on 16 April 2020 to drop off a seat for a car he was repairing. At the time, Mr Verstandig’s friend, Mr Tim McMahon, was accompanying him. Mr Verstandig said Mr Sheppard made the same comments again that the accusations from the company are all lies.
[65] It was apparent from Mr Sheppard’s evidence that he confirmed Mr Verstandig’s evidence that they had a telephone call around the time Mr Sheppard was preparing his second statement. Having heard from both of them, I am inclined to accept Mr Verstandig’s version of the conversation. It appears to me that some of Mr Sheppard’s evidence would seem at odds with the general tone of the conversation and the reasons he was likely to have been making contact with Mr Verstandig at this sensitive time.
Mr Thatcher
[66] Mr Thatcher provided an affidavit dated 22 April 2020. 9 He stated that on 10 April 2019, he was about to start his afternoon shift when he walked up to Mr Verstandig, who was standing at the smoking area and talking to drivers. Mr Thatcher said there was four of them, including himself. Mr Thatcher said that Mr Verstandig informed them that Ms Costello was on her way to do safety audits. Mr Thatcher claimed that Mr Verstandig then proceeded to make highly offensive sexually explicit remarks about Ms Costello before she arrived to perform safety audits.
[67] Mr Thatcher agreed that the afternoon shift starts at 4:00 pm or 4:30 pm. Mr Thatcher agreed that Ms Costello would ordinarily travel from Brisbane, however Mr Verstandig did not say where Ms Costello was travelling from. It was put to Mr Thatcher that Mr Verstandig never made the statement as alleged. Mr Thatcher maintained the statements were made and said there were other witnesses, but those persons did not give evidence. It was put to Mr Thatcher that Ms Costello would not come up to do a safety audit in the afternoon. Mr Thatcher said that Mr Verstandig did not state a time or date when Ms Costello was travelling up. The statutory declaration of Mr Thatcher however states that Mr Verstandig said that Ms Costello was “on her way” suggesting that the safety visit was occurring that day.
[68] Mr Thatcher was asked if the date was definitely 10 April 2020, and he said yes because Mr Verstandig was investigating some allegations about a driver that were on Facebook messenger. Mr Thatcher said it was about the media policy of Sunchip and that people are not supposed to be talking to each other on Facebook.
[69] It was put to Mr Thatcher that Mr Verstandig describes him as the company “shit stirrer”. Mr Thatcher said Mr Verstandig had been caught out quite a few times lying, and Mr Verstandig would give employees orders and if it was unsafe he would say “you will do it or you will be sacked”.
[70] Mr Thatcher denied being pressured to make the statement and said he no longer worked for the Respondent.
[71] Mr Thatcher also described a situation following a phone call Mr Verstandig had made to Mr Costello in July 2019. The purpose of the phone call was to organise a time and place for Ms Costello to call Mr Thatcher to organise a resetting of the GPS tracking system on TR 200. Mr Thatcher said that after the phone call ended, Mr Verstandig made further highly offensive and sexually explicit remarks about Ms Costello. It was put to Mr Thatcher that Mr Verstandig denied this and was asked if there were any witnesses to this alleged incident and he said no. Mr Thatcher was asked if he reported the incident at the time and he answered, “No I did not worry about it at the time.” Mr Thatcher claimed that if he did report something, Mr Verstandig would call him into his office and threaten his job. Mr Thatcher accepted there were no other witnesses to this alleged conduct by Mr Verstandig and this was not in his affidavit.
[72] Mr Verstandig said as for him, he found it hard to believe that he had informed drivers that Ms Costello was coming to do audits, as it was 3.30 pm as claimed by Mr Thatcher and Ms Costello wouldn’t usually come to Maryborough at that time as she worked out of the Brisbane office. Ms Costello usually would come up in the morning and do safety audits with the harvesting crews at their work sites. Mr Verstandig said that while there, Ms Costello would also do the trucks as they came in to be loaded.
[73] Mr Verstandig said that as for the alleged comments made by Mr Thatcher about what he had said about Ms Costello, they are total lies. He said he found it unusual that Mr Thatcher never named the four drivers that were alleged to have been present at the time and yet, Mr Thatcher could remember the precise time and date however never made a complaint to management. Mr Verstandig said this was very unusual for Mr Thatcher.
[74] Mr Verstandig said that he found it abhorrent that he would think anyone in his position would be so foul mouthed to say such a thing about any women. He said that anyone that knows him would know he never speaks in such a vile and disgusting way.
[75] Mr Verstandig said he believes that Mr Thatcher was contacted as well as other drivers to try and dig up dirt on him.
Ms Costello
[76] Ms Costello provided an Affidavit dated 16 April 2020. 10 Ms Costello stated that last year, she had been advised by the maintenance manager, Mr Ben Rhodes, to be careful around Mr Verstandig as he had heard Mr Verstandig say explicit things about her. Ms Costello was asked when Mr Rhodes said this to her, and she said she cannot remember dates, but it was the end of last year and she believed it was reported to management around the same time. Ms Costello was asked why no action was taken at time, and Ms Costello said she believed it was discussed at a management level at the time, but she was not involved in that.
[77] Ms Costello was asked if she ever felt uncomfortable with Mr Verstandig and she said after having spoken to Mr Rhodes, she did.
[78] Ms Costello also stated that Mr Verstandig had sent a text message to her following the date of his dismissal, in which he apologies if he had done anything to offend her although he was unaware what it was he was alleged to have said.
[79] Ms Costello accepted during her oral evidence that Mr Verstandig had never made any sexual advances or sexist comments toward her. Ms Costello said she did have arguments with Mr Verstandig about work matters and he was not always polite and respectful, although she had never made a complaint about that.
[80] Mr Verstandig said in response to the affidavit of Ms Costello that he found it unusual that Ms Costello would wait until now to put in an official complaint about his alleged rude comments about her to workshop staff. Mr Verstandig said that the staff in question have already provided statements that state otherwise.
[81] Mr Verstandig said he found it unusual that Ms Costello never mentioned alleged sexual advances that he was alleged to made on her as contained in the Respondent’s Form F3 response.
[82] Mr Verstandig said he found it strange that Ms Costello would find rude comments more important than alleged sexual advances. He said Ms Costello was the Workplace Health and Safety Officer and he would have thought it would be part of her job description to follow up on something as serious as that, rather than hearsay words from workshop staff.
[83] Mr Verstandig said he noticed that the bottom of Ms Costello’s affidavit was written in a different coloured pen and he queried whether this was added after the affidavit was signed.
[84] Mr Verstandig said that he found it strange that if this was brought up to Ms Costello’s attention last year than why was it not taken up with senior management at the time.
Mr Rhodes
[85] Mr Rhodes provided an affidavit dated 23 April 2020. 11 Mr Rhodes stated firstly that Mr Verstandig “excessively bullied Mitchell Macleod after he finished night call outs authorised by myself”.
[86] It was put to Mr Rhodes the allegations of bullying of Mr MacLeod were untrue and Mr MacLeod made no mention of this in either his 17 March or 17 April 2020 Affidavits. Mr Rhodes claimed in his evidence that Mr Verstandig had attempted to pressure Mr MacLeod about what he said in his affidavit. Mr Rhodes said as the Senior Maintenance Manager, he does get calls about issues and he was called about the issue. He did not give any more specific evidence about this allegation.
[87] Mr Verstandig said in reply to the statement of Mr Rhodes’ affidavit that he disagreed with it and that it is a lie. Mr Verstandig said he never bullied Mr Macleod.
[88] Mr Verstandig also said that he knew Mr Macleod was on call outs, as he should have, being the manager of the depot and it was his job to know. Mr Verstandig said the only other time he had reason to have a talk with Mr Macleod was on 24 August 2019. Mr Verstandig said that Mr Macleod had an altercation with another workshop mechanic. Mr Verstandig said that Mr Macleod took to the other employee with an iron bar. However, at the time, another boiler maker by the name of Arron stopped Mr Macleod before Mr Macleod hit the other employee.
[89] Mr Verstandig said that on the same weekend, Mr Macleod had a fire going in a 200-litre drum inside the workshop. Mr Verstandig said that he brought it to the attention of Mr Koeppen and Mr Rhodes, but nothing was done.
[90] Whilst Mr MacLeod did not appear as a witness at the hearing, he completed two statutory declarations which were filed by the parties. It is useful to summarise the content of those statutory declarations for the purpose of dealing with the contested issues as between Mr Rhodes and Mr Verstandig.
[91] Mr MacLeod signed a Statutory Declaration on 17 March 2020. This statutory declaration was filed as part of Mr Verstandig’s material. It stated that Mr MacLeod worked in the workshop in 2019 and “at no time did I ever here (sic) Clem [Mr Verstandig] make any derogatory remarks about any of the female staff or experience girl here at the time I was quested by our general manager and have denied any accusation”. Mr Macleod also said in the Statutory Declaration that he was never bullied by Mr Verstandig.
[92] An affidavit was subsequently filed as part of the Respondent’s material that appeared to be signed by Mr Macleod and dated 17 April 2020. That affidavit stated that it declared Mr Macleod intended to withdraw the affidavit he submitted on 17 March 2020. The Affidavit of 17 April said that at the time he submitted the 17 March 2020 Statutory Declaration, he considered the content was accurate and truthful and he acted in tendering the Affidavit without malice.
[93] The Affidavit of 17 April 2020 said that he made the application for the removal of the signed affidavit for the reasons that a) that information he submitted may not be completely accurate to the situation described; b) that new and additional information has recently come to light that was unavailable to him at the time he made the affidavit and his representations.
[94] Mr Verstandig said in his reply Statutory Declaration to Mr McLeod that he found it unusual that Mr Macleod had withdrawn his Statutory Declaration when Mr Macleod was the one who approached him in early March 2020. He said Mr Macleod phoned him, concerned that Mr Verstandig wasn’t doing good and that he and the other workshop staff were on his side.
[95] Mr Verstandig said they had a short chat and Mr Macleod said he was going to come and see Mr Verstandig. Mr Verstandig said on 17 March 2020, Mr Macleod came to his house and spent a couple of hours talking to him and another friend that was visiting him at the time.
[96] Mr Verstandig said that during this visit, Mr Macleod said all the staff in the workshop were fed up with what was going on and how they were being treated by Mr Koeppen. Mr Verstandig said Mr McLeod said he had not spoken with Mr Rhodes since before Christmas until around 15 April 2020 when Mr Rhodes wanted statements signed.
[97] Secondly, Mr Rhodes also said Mr Verstandig “assaulted John Sheppard by putting his thumb up his backside while Josh was repairing a truck gearbox”.
[98] Mr Rhodes said Mr Sheppard approached him with concerns about the issue. It was put to Mr Rhodes that Mr Sheppard said nothing about being assaulted. Mr Rhodes said the employee said to him he was assaulted. It was put to Mr Rhodes that Mr Sheppard said it was just a touch on the bottom, and Mr Rhodes said he was approached about it and that was why he took action about it.
[99] Mr Verstandig said that the allegation that he put a thumb up the bottom of Mr Sheppard was a lie and he was supported by the evidence of Mr Sheppard. Mr Verstandig said Mr Sheppard was approached about the issue twice by Mr Koeppen, denied it both times, and that Mr Koeppen approached Mr Sama by phone about the incident and Mr Sama denied it.
[100] Thirdly, Mr Rhodes said that the workshop crew had advised him of Mr Verstandig making “unnecessary comments against the female workplace student Leslie Wroe.” It was put to Mr Rhodes that Ms Wroe had provided a statutory declaration that she had not experienced any sexual harassment from Mr Verstandig. Mr Rhodes said employees at the depot brought forward concerns however this evidence was general and of no particular assistance. Mr Rhodes was referring to comments made to him and he was not giving direct evidence in regard to this specific issue.
[101] Mr Verstandig said that as for the alleged comments about Ms Wroe to the workshop staff, this was another lie which he disputes. Mr Verstandig stated the allegation said the event occurred in August or September 2019, and Ms Wroe did not commence work experience until October in the school holidays.
[102] Fourthly, Mr Rhodes stated that Mr Verstandig had exposed himself in the workshop by pulling his pants down. When Rhodes was asked when this happened and where, Mr Rhodes said it was in the workshop. Mr Rhodes accepted the he did not witness the incident himself. He said Mr Macleod, Mr Shepperd and Mr Morgan raised the issue. He said the employees were looking at a crack and Mr Verstandig dropped his pants and said “that a crack”. It was put to Mr Rhodes that none of those persons had filed evidence about that incident.
[103] Mr Verstandig denied this ever occurred. He said if it had gone to senior management, there were cameras in the workshop and management could have looked at the camera footage if they had a concern he did do that. There is no direct evidence from any witness that this occurred.
[104] Fifthly, Mr Rhodes said that Mr Verstandig was causing issues between the workshop and senior management when either Mr Koeppen or himself were away and undermined the authority of senior management.
[105] It was put to Mr Rhodes that when Mr Rhodes could not be contacted, Mr Verstandig would be asked to get parts and when Mr Verstandig got parts, he would refuse to issue purchase orders. Mr Rhodes denied that. Mr Verstandig said he would be asked to authorise parts when Mr Rhodes was away and that was the only issue. Mr Verstandig said that he has never been spoken to by Mr Rhodes or Mr Koeppen about any issues in regard making sexual comments or harassment.
[106] Sixthly, Mr Rhodes said that Mr Thatcher advised him that that Mr Verstandig was escorting a wide/heavy load when Mr Chris Wicks from Bob’s Tyres turned up. Mr Rhodes said Mr Verstandig drove off in Mr Wicks’ vehicle as it was new and left Mr Wicks to escort the load. Mr Rhodes was asked what date he said this occurred and he said he didn’t know.
[107] Mr Verstandig said he never authorised Mr Wick to escort a vehicle. He said just before Christmas, the machines had to shift and he was given authorisation by Mr Koeppen to go out with Mr Thatcher when moving machines and he would have been home at that time because it was on a weekend.
[108] Finally, Mr Rhodes stated that Mr Verstandig had been at a meeting with Ms Costello and walked out of the office to the smoking area where Mr Rhodes, workshop crew and some drivers were. Mr Rhodes said Mr Verstandig then made a highly offensive sexually explicit remark about Ms Costello.
[109] It was put to Mr Rhodes that Mr Verstandig denied this allegation. Mr Rhodes said he can give direct evidence about this allegation. He said Mr Thatcher was also present. I asked Mr Rhodes what date this occurred, and he said he was not positive and didn’t remember the specific day. He thought it was in the month of September or October 2019. Mr Rhodes said it was his personal decision to cease having anything to do with Mr Verstandig and he made other arrangements so that everything flowed.
[110] Mr Verstandig said that he never made the statement as alleged, the versions are inconsistent, and this is a long way from the original allegation that he made sexual advances toward Ms Costello and Ms Wroe and pulled someone’s pants down and played with their testicles.
[111] Mr Verstandig denied the matters raised in the affidavits filed by the Respondent.
s.387(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)
[112] The Respondent must have a valid reason for the dismissal of Mr Verstandig, although it need not be the reason given to him at the time of the dismissal. 12 The reasons should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”13
[113] As described above, the Respondent submitted that Mr Verstandig was dismissed for serious misconduct.
[114] In closing submissions, it was put for Mr Verstandig that the reasons for dismissal given in the Respondents Form F3 were sexual advances against Mr Costello and Ms Wroe and pulling the pants down of another employee and grabbing his testicles. It was submitted that the statutory declarations of Mr Verstandig were not challenged in cross examination, and Mr Verstandig denies making the alleged sexual advances and both Ms Costello and Ms Wroe support Mr Verstandig’s rejection of this allegation. This allegation is clearly not made out.
[115] In relation to the allegation that Mr Verstandig pulled down the pants of a fellow employee and grabbed the employee’s testicles, this was denied and there was no evidence that it happened. Importantly Mr Blackberry, who dismissed Mr Verstandig, did not give evidence in the Respondent’s case so the Commission does not have the benefit of Mr Blackberry’s evidence as to why this allegation was even made at the time of the dismissal.
[116] In relation to the later allegation of Mr Rhodes concerning Mr Verstandig’s conduct toward Mr Shepperd, it was submitted that Mr Verstandig denied it and Mr Shepperd conceded his pants were not pulled down.
[117] In regard to alleged sexual comments about Ms Wroe, this is denied and Mr Fitzgibbons’ evidence was that he had never heard Mr Verstandig make such comments was unchallenged. Mr Verstandig denied making the comments as alleged by Mr Thatcher.
[118] Mr Verstandig denied making Ms Cushway upset. On the basis of the evidence of Ms Cushway and Ms Costello, I am inclined to accept that Mr Verstandig could be aggressive at times in his dealings with office staff. Although it also appeared this was in the context of issues particularly regarding pay issues affecting other employees. It was inappropriate for Mr Verstandig to behave in an aggressive manner and to use strong language when dealing with office staff, however the evidence was generally vague and witnesses did not give specific times or dates in connection with the allegations, none of which were the subject of a formal complaint that was ever made against Mr Verstandig before his discussion with Mr Blackberry during which he was terminated. In the circumstances, I am not satisfied the general allegations about Mr Verstandig being rude or aggressive were a valid reason for termination.
[119] There were no issues raised about Mr Verstandig’s work performance. Despite vague references to previous warnings having been given to Mr Verstandig which were not supported with any specific evidence, the evidence supports the conclusion that Mr Verstandig had no prior disciplinary history before his termination.
[120] I have not been persuaded on the evidence that Mr Verstandig was dismissed because he had raised safety concerns as he has claimed. I am more inclined to the view that the Respondent dismissed Mr Verstandig because it was of the view that a number of incidents had occurred involving the conduct of Mr Verstandig and taken together, they warranted a decision to terminate him.
[121] The allegation that Mr Verstandig had pulled the pants down of an employee and grabbed the testicles relied upon by the Respondent to dismiss him, was never supported with any evidence at the hearing. The only evidence in connection with this issue was the initial evidence of Mr Shepperd that Mr Koeppen had twice asked him if this had occurred to him and he said both times he denied to Mr Koeppen that it did. Importantly, Mr Shepperd continued to attest that his first statutory declaration was factually correct. His second affidavit related a completely different incident where he said Mr Verstandig had touched “his arse” but he did not see what happened as he was looking down at the time.
[122] He said this incident occurred in August or September 2019, and after telling Mr Verstandig not to do it again, he did not feel he needed to take the matter any further by making a complaint. I cannot be satisfied that there is any substance to the allegation that Mr Verstandig grabbed an employee by the testicles as there is no evidence that he did. On that basis, it cannot be a valid reason for dismissal. In regard to the separate issue raised by Mr Shepperd, even though it was never raised or relied upon as a reason for dismissal, even if I accepted it occurred as claimed by Mr Shepperd and denied by Mr Verstandig, I am also not satisfied that it is a valid reason for dismissal.
[123] In relation to the alleged comments about Ms Wroe, Mr Shepperd accepted that his evidence concerning whether Mr Verstandig made an inappropriate sexual comment about Ms Wroe in August or September 2019 was hearsay evidence. Mr Verstandig denied the allegation. Mr Shepperd was not sure but thought it was Mr MacLeod that had said to him that he had heard Mr Verstandig make the offensive comment. Mr MacLeod did not attend the hearing to give evidence and neither of his statements make any reference to this allegation.
[124] It would appear from the evidence of Mr Shepperd that he felt caught between his sympathy for Mr Verstandig and loyalty to his employer. It is my impression from his evidence given that he did not deny he was engaged in discussions with Mr Verstandig around the time that he had been asked to provide a second statement by the Respondent, that he was not entirely comfortable with his employer’s request. It was put to him that he was under pressure from the Respondent, however Mr Shepperd described is as being asked to go “more in depth”. In any event, I am left with the impression that Mr Shepperd did not believe the conduct that Mr Verstandig engaged was of any significant concern to him and it was addressed at the time.
[125] Mr Rhodes also gave hearsay evidence that he had been told that Mr Verstandig had made inappropriate comments about Ms Wroe but could give no direct evidence regarding this allegation. There is in fact no direct evidence that Mr Verstandig made an inappropriate sexual comment about Ms Wroe. Mr Verstandig denied it and was not directly challenged at the hearing about it. I cannot be satisfied on the evidence Mr Verstandig did make the comment about Ms Wroe as alleged and therefore it is not a valid reason for dismissal.
[126] Mr Thatcher claimed that on 10 April 2019 (approximately 9 months before dismissal), Mr Verstandig made highly offensive sexually explicit remarks about Ms Costello before she arrived to perform a safety audit and prior to the commencement of an afternoon shift.
[127] There were no other witnesses to this alleged incident that gave evidence. It was put to Mr Thatcher that Ms Costello would not come up to do a safety audit in the afternoon. There was an apparent inconsistency between the oral evidence and affidavit of Mr Thatcher. In his oral evidence, when challenged that Ms Costello would not travel to the worksite that late in the day given she did not live locally, Mr Thatcher said that Mr Verstandig did not state a time or date when Ms Costello was travelling up. However, in his Affidavit Mr Thatcher states that Mr Verstandig said that Ms Costello was “on her way” suggesting that the safety visit was occurring on the same day.
[128] Mr Thatcher did not give evidence that he raised the alleged inappropriate comment with anyone else at the time or make any form of complaint at the time. Nor did Mr Thatcher make any form of complaint concerning a separate allegation against Mr Verstandig he said occurred in July 2019 when he claimed Mr Verstandig made further highly offensive and sexually explicit remark about Ms Costello. Mr Thatcher said there were no other witnesses to this incident.
[129] Mr Thatcher was asked if he reported the incident at the time and he answered “No he did not worry about it at the time.” This issue comes down to Mr Thatcher’s word against Mr Verstandig, and whilst it is possible that Mr Thatcher heard inappropriate comments made by Mr Verstandig about Ms Costello, in the face of Mr Verstandig’s strong denial which he was not challenged on at the hearing, and the alleged comments dating from April and July 2019 with no complaint being made at the time, and the fact that it seems these allegations were only first aired by Mr Thatcher in April 2020, I am not satisfied on balance that it is probable that they were made as claimed. Even if comments were made, I cannot in all the circumstances be confident given the effluxion of time that they were made as claimed by Mr Thatcher.
[130] Given all of that, I am not satisfied that the allegations of Mr Thatcher provide a valid reason for dismissal.
[131] Turning to Mr Rhodes’ evidence, he firstly claimed that Mr Verstandig bullied Mr MacLeod. This was denied by Mr Verstandig who was not challenged on his denial and there is no direct evidence that the allegation is true. Mr Rhodes’ evidence proceeded on the basis that Mr Macleod had complained to him. There is no reference to such allegations in the two statements of Mr MacLeod himself. This allegation was not relied on as a reason for dismissal at the time of termination and appeared never to have been raised with Mr Verstandig whilst he was employed. I am not satisfied on the evidence this allegation is made out.
[132] Mr Rhodes also alleged Mr Verstandig assaulted Mr Sheppard by putting his thumb up his backside however, for reasons already addressed above, this allegation is not made out on the evidence. Mr Rhodes’ third allegation concerning Ms Wroe has already been addressed above and are also rejected as stated.
[133] Mr Rhodes’ fourth allegation that Mr Verstandig exposed himself in the workshop by pulling his pants down is also rejected. Mr Rhodes accepted the he did not witness the alleged incident himself and whilst he said others did, none of them gave evidence concerning the allegation. Again, Mr Verstandig denied this ever occurred and he was not challenged about it at the hearing.
[134] Mr Rhodes’ fifth allegation that Mr Verstandig was causing issues between the workshop and senior management was vague and not relied upon at the time of termination as a reason for termination. I am not satisfied that the evidence concerning this allegation is made out.
[135] Mr Rhodes’ sixth allegation were again not relied upon at the time of termination as a reason for dismissal and not raised with Mr Verstandig before his dismissal. Mr Verstandig gave a plausible explanation in response to the allegation and was not challenged on it. This issue does not provide a valid reason for dismissal.
[136] Lastly, Mr Rhodes alleged that Mr Verstandig made a highly offensive sexually explicit remark about Ms Costello in front of himself, workshop crew and some drivers. Mr Verstandig denied this allegation. Mr Rhodes said he was not positive of the date or specific day, however he thought it was in the month of September or October 2019. Mr Rhodes said it was his personal decision to cease having anything to do with Mr Verstandig. However, it is also apparent that he took no immediate action at the time despite being a senior manager. If Mr Verstandig did make such sexually gratuitous comments as claimed by Mr Rhodes in front of so many witnesses and a senior manager, it seems implausible that nothing was done about it at the time.
[137] It is also concerning that Mr Rhodes provided an Affidavit making a series of other allegations against Mr Verstandig that on the evidence have been found not to be made out. This can in part be attributed to the fact that much of this material in Mr Rhodes’ statement was simply Mr Rhodes repeating what he heard from others which was later proven to be incorrect.
[138] I am inclined to believe Mr Rhodes probably did hear Mr Verstandig make some form of offensive sexually explicit remark about Ms Costello in September or October 2019, however given Mr Rhodes could not remember specifically when this occurred, I am less inclined to be confident that his recollection of what was said seven months ago is entirely reliable. There is no contemporaneous record of it. Given Mr Rhodes has demonstrated a preparedness to include in his affidavit a number of serious allegations that have been found to be without foundation, I am inclined not to be confident that his recollection of what Mr Verstandig said is accurate and or may be exaggerated.
[139] It is possible Mr Verstandig made some kind of sexually inappropriate comment about Ms Costello in September or October of 2019, as Ms Costello gave evidence which I accept that Mr Rhodes did speak with her around that time about it, and it would seem unusual that he would invent such an allegation.
[140] Despite Mr Rhodes claiming other witnesses heard what Mr Verstandig said in September or October 2019, none of those persons gave evidence about this incident and Mr Rhodes made no record of it and did not raise it with Mr Verstandig at the time. Mr Verstandig strongly denies he made the comments as claimed by Mr Rhodes and only Mr Rhodes and Mr Verstandig gave evidence about the allegation. Again Mr Verstandig was not directly challenged about his evidence on it.
[141] It appears no immediate specific steps were taken in regard to this issue despite a senior manager being present at the time. It appears to me this issue has been taken up at a later stage as one of a number of issues Mr Blackberry alluded to on around 20 December 2019 when he phoned Mr Verstandig without making any specific allegations. Then nothing more appears to have happened until Mr Verstandig received a telephone call from Mr Blackberry at 5:00 pm on 13 January 2020 advising him he is dismissed.
[142] If Mr Verstandig did make offensive sexually explicit remarks about Ms Costello in September or October 2019, Mr Rhodes, as a senior manager, should have dealt with the issue at the time. He could have given Mr Verstandig a stern warning at the time that any repetition of such conduct would not be tolerated. Given Mr Rhodes was a senior manager, if the Respondent was of the view that the conduct warranted termination on 13 January 2020, it seems odd no action was taken when it is now alleged to have occurred in either September or October.
[143] I am inclined to view that Mr Rhodes may have held the view that whatever the conduct of Mr Verstandig that he witnessed in September or October was, it was not so serious as to justify dismissal at that time, however it was on the basis of an accumulation of other allegations (subsequently not made out) that the Respondent decided that when taken together these issues warranted dismissal.
[144] Whilst Mr Verstantig may have made some kind offensive comments in September or October the evidence is inconclusive and given no record was kept, or complaint made at the time and the other allegations in Mr Rhodes evidence against Mr Verstandig have been found not to be made out, and also that Mr Rhodes was uncertain as to when the incident occurred, in all of the circumstances I am not prepared to conclude that it is probable Mr Verstandig said what is alleged against him.
[145] On the evidence, I have not been satisfied that any of the other misconduct has been established.
[146] For all of the reasons set out above, the Respondent did not have a valid reason for termination.
s.387(b) - Whether the person was notified of that reason
[147] In Crozier v Palazzo Corporation Pty Ltd, 14 the Full Bench established the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[148] Whilst Mr Blackberry made a phone call to Mr Verstandig around 20 December 2019 alluding to misconduct, he did not make any specific allegations at the time. Mr Verstandig was not notified of the reasons for dismissal before the telephone discussion at 5.00 pm with Mr Blackberry on 13 January when Mr Verstandig was terminated. Mr Blackberry did not give evidence and the only evidence of the telephone discussion is that of Mr Verstandig. Mr Verstandig said the only two reasons given were those set out already above neither of which have been proven. The array of other issues raised in the evidence of the Respondent were not raised at the time of termination.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity
or conduct of the person
[149] Mr Verstandig was not given an opportunity to respond prior to the decision being made. He was dismissed during a telephone call without notice of the call or the specific issues to be discussed. Further as stated there were a range of additional allegations raised in the course of this matter as set out above that were not raised at the time of termination denying Mr Verstandig any opportunity to respond.
s.387(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
[150] The discussion took place over the phone at 5:00 pm on 13 January 2020. Mr Verstandig did not ask for a support person however it is also apparent he had no notice that the phone call with Mr Blackberry could led to his termination.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[151] Mr Verstandig’s employment was not terminated for unsatisfactory performance and there is a neutral consideration.
s387(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
[152] The Respondent is not a small business stating that it has 62 employees.
s.387(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
[153] The unchallenged evidence of Mr Verstandig was that Mr Blackberry told him that “he had consulted with the company’s solicitor and the Commission”. The reference to the Commission I took to be a reference to the Fair Work Ombudsman. However, it was also apparent that the Respondent did not have an internal human resource management specialist overseeing the process and that is likely to have impacted on the procedures followed.
s387(h) any other matters that FWA considers relevant.
[154] Mr Verstandig is 61 years of age and has been unemployed for some time. Mr Verstandig was also a long standing employee with an no previous disciplinary history.
[155] I have given consideration to each of the matters I am required to in section 387 of the Act. There being no valid reason for dismissal and the procedures followed in effecting the dismissal of Mr Verstandig also being flawed in several respects important respects as outlined above, I conclude the dismissal was harsh, unjust and unreasonable.
[156] Mr Verstandig did not seek reinstatement. Having considered the evidence, I am of the view that there has been an irrevocable breakdown in the working relationship, and therefore reinstatement would be inappropriate in any event. Consideration must now turn to section 392 and whether a remedy of compensation should be ordered.
[157] Section 392 of the Act provides:
“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.”
[158] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket. 15 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;16 Jetstar Airways Pty Ltd v Neeteson-Lemkes17 and McCulloch v Calvary Health Care.18
[159] I have had regard to the authorities above.
The effect of the order on the viability of the employer’s enterprise
[160] The was no issue raised about the viability of the business and the Respondent confirmed it was currently trading.
The length of service
[161] Whilst for Mr Verstandig’s most recent period of employment with the Respondent ran from 12 March 2015 to 13 January 2020, he worked on and off employment over 23 years for the Respondent. There is no basis for a reduced amount of compensation on account of Mr Verstandig’s length of service.
The remuneration would have received, or would have been likely to have been received, if Mr Verstandig had not been dismissed
[162] Mr Verstandig was terminated on 13 January 2020 and was not paid notice. He provided evidence that he enjoyed his work with the Respondent and would have continued in employment for the foreseeable future. I asked Mr Koeppen how long he believed Mr Verstandig would have remained in employment if he was not dismissed and Mr Koeppen said he had no idea. I asked Mr Koeppen if he could provide any information about why Mr Verstandig said he was not given a separation certificate. He said he was trying to provide one but the matter had been before the Commission. Mr Koeppen accepted that one was not provided.
[163] Estimating the length that Mr Verstandig would have remained employed in all the circumstances involves a degree of speculation. There is some evidence that suggests that the relationship was becoming progressively more strained between Mr Verstandig and senior managers, such as Mr Koeppen and Mr Rhodes who gave evidence about this. Mr Verstandig’s own evidence suggested the relationship was strained. I am inclined to the view that given this issue, and also the concerns being openly raised about Mr Verstandig by the office staff such as Ms Costello and Ms Cushway, that there is a real prospect that the relationship was turning increasingly sour and may not have been long lived. I estimate that had Mr Verstandig not been dismissed it is likely that Mr Verstandig would have remained employed for a least another 16 weeks.
[164] Mr Verstandig said he was paid $30.06 per hour and earned $44,925.37 in the period from 1 July 2019 to 13 January 2020. Mr Koeppen accepted that Mr Verstandig was not paid any notice pay and did not dispute the monetary earnings as claimed by Mr Verstandig, including that he sometimes worked 110 hours a fortnight. Assessing the period of $44,925.37 as approximately 28 weeks then that figure divided by 28 equals $1,604.48 per week. Estimating a weekly amount of $1,604.48 from the figures provided by Mr Verstandig, if that weekly figure is multiplied by 16 weeks it equals $25,671.64.
The efforts of Mr Verstandig to mitigate loss suffered because of the dismissal
[165] Mr Verstandig said he was booked in for a stomach band surgery and his doctor didn’t want him to do any other work until he had the operation. He said he is 61 years of age. I asked Mr Verstandig if he was still employed whether he would have taken time off work to have the surgery. He said it was scheduled in June but had to be put off because of COVID 19. He said had he still been employed he would have taken annual leave to have the procedure.
[166] Mr Verstandig said he also had an issue with his knee and is seeing an orthopaedic surgeon about his knee. Mr Verstandig said his doctor had written to Centrelink advising about his stomach band operation. Mr Koeppen submitted that he was aware there were jobs available for truck drivers and Mr Verstandig could get work if he tried but there was no evidence to this effect.
[167] It would appear on the basis of the evidence that if Mr Verstandig continued to work for the Respondent, he intended to have had his planned surgery during a period of annual leave. However, given the surgery was scheduled before his dismissal he has elected to proceed to have the surgery before pursuing other employment.
[168] The surgery is elective surgery. There was no medical evidence called suggesting Mr Verstandig was not capable of working, and it was his own evidence had he not been dismissed he would have continued to work and scheduled the operation to coincide with annual leave. It is appropriate to make some reduction to the amount of compensation on the basis that Mr Verstandig could have made more effort to mitigate his loss however in all of the circumstances including the current COVID 19 epidemic I have determined a reduction of four weeks which equals $6,417.92 is appropriate reducing the amount of compensation to $19,253.72.
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.
[169] Mr Verstandig was not paid notice pay and has received no income other than Centrelink payments which he said were delayed because of the failure of the Respondent to provide him a separation certificate. I make no deduction on account of other remuneration earned.
The amount of any income reasonably likely to be so earned by Mr Verstandig during the period between the making of the order for compensation and the actual compensation
[170] There is no evidence to suggest that Mr Verstandig will earn any other income between the making the order and the actual compensation.
Other relevant matters
[171] There are no other matters I consider relevant to the determination of appropriate compensation as required by section 392 of the Act.
Conclusion
[172] I intend to order that A.C.N 124 136 116 Pty Ltd T/A Sunchip Transport pay Mr Clint Verstandig the amount of $19,253.72 and 9.5% superannuation on that amount gross taxed according to law within 21 days of the date of this decision.
COMMISSIONER
Appearances:
Mr R. Raiti of Raiti Lawyers appearing for the Applicant
Mr Dirk Koeppen appearing for the Respondent
Hearing details:
2020,
Brisbane:
May 13
Printed by authority of the Commonwealth Government Printer
<PR720216>
1 Exhibit 1.
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12 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
13 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
14 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at para. 73, [(2000) 98 IR 137].
15 AIRCFB, Munro J, Duncan DP, Jones C, 24 December 1998) [(1998) 88 IR 21].