Unfair dismissal; being a smart alec does not validate dismissal

It is not a valid reason for dismissal that an employee may be a smart alec.

“Conclusion

[140] In many respects the Applicant has had an unfortunate list of experiences in the workplace over the last two years. Coupled together, the Applicant is of the view that they amount to a vendetta from the Respondent to remove him from the workplace. I do not accept this proposition. I do not believe that Mr Kessell or the CEO were responsible for the anonymous report to CASA in relation to his mental health or the enquiry into the Applicant’s actions when he bravely saved the life of a citizen or the scenario which resulted in the Applicant losing his single-pilot rating. There is no evidence to suggest that these issues were nothing more than an unfortunate set of circumstances. To suggest otherwise would require more than a few managers to be involved in a conspiracy – which eventually led to two of the managers ceasing their employment. Such a scenario is implausible, however, I can understand how any employee with the characteristics of the Applicant could convince himself of such a conspiracy.

[141] There is no doubt that an employee is obligated to follow a reasonable and lawful instruction from their employer. The Applicant believes that he complied with the direction of the CEO. The Applicant does not believe that his correspondence to the Respondent was in breach of the Respondent’s Code of Conduct or Bullying Policy. In accordance with the Bullying Policy, bullying is described as repeated behaviour, which is described as an ‘established pattern’ which may involve a series of diverse incidents. Unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, would see as victimising, humiliating, intimidating or threatening. Mr Kessell reached the conclusion that the Applicant was bullying him based on the correspondence of 19 and 21 December 2020. In my opinion, Mr Kessell arrived at this conclusion a little too hastily. To issue a first and final warning without any discussion with the Applicant is premature. I find that the Applicant’s behaviour could not be described as either repeated or unreasonable.

[142] During the proceedings, I put to Mr Kessell that on the evidence adduced at the Hearing, it was not uncommon for the Applicant to have written and spoken in the manner which Mr Kessell had deemed inappropriate. I asked Mr Kessell, if the Applicant had spoken and behaved in such a manner throughout the course of his employment, why had there been a sudden change of response from the company. Mr Kessell’s evidence was as follows:

“Commissioner, this is the first time I’ve seen Mr Woods put something like this in writing.  You’ve heard over the last few days around other people commenting on his behaviour, it seems, and their interactions with him, but this is – to me, this is the first time he’s put something – anything like that in writing and I found it offensive.” 19

[143] I have closely examined the correspondence from the Applicant to Mr van de Velde on 30 December 2020. There is no adverse or inappropriate language in this correspondence. I find that the Applicant has complied with the direction of Mr van de Velde in this regard. I find that there is no breach of the Respondent’s Code or Policy in the wording contained in this correspondence.

[144] I have closely examined the correspondence from the Applicant to Mr Kessell on 30 December 2020. The Applicant wished Mr Kessell and his family a Happy New Year and included a throw away, half humorous challenge, including a keypad smiley face. I do not accept that this sentence could in any way be identified as bullying, harassment or a breach of the Code or Policy. I also do not regard this sentence as a breach of the direction given to the Applicant by the CEO. If Mr Kessell took offence at this email, then his response belies his alleged experience in industrial relations.

[145] I accept the evidence of a number of witnesses that the Applicant is very arrogant and very confident in his own ability. These traits may be beneficial in a helicopter pilot in the Applicant’s current role and undoubtedly in his former role in the armed services. However, arrogance is not a personality trait that is illegal, even though it may be offensive. After previously working for 6 years in the electrical distribution industry and 24 years as a union official, I do not find the Applicant’s emails on 19 and 21 December 2020 to be offensive or inappropriate at all.

[146] They show that the Applicant is opinionated, in some cases without cause. To put it bluntly, whilst trying to be appropriate, the Applicant is clearly a smart alec.

[147] I find that the Respondent was obligated to consult with the Applicant in relation to the issuing of a JED in accordance with the Act. I find that the Act requires consultation to be in accordance with the definition identified above, ie, a conference for discussion. Consultation does not mean that the parties need to reach an agreement on the subject matter, it simply means that there has to be a discussion. An employer then must consider the views of the employee or their representative before making their decision. It is not possible to have proper or appropriate consultation, except in extremely rare circumstances, by correspondence. Mr Kessell’s excuse that he did not meet with the Applicant to discuss the JED because the Toowoomba Base is a 90-minute drive from Brisbane is not an acceptable reason. The Respondent had an obligation to explain this new legislation, upon which it was seeking to force the Applicant to continue to work the WP2 roster, to him in a meeting. If that was impossible due to operational reasons, then this meeting could have been conducted via a Teams conference or by a telephone call. I note that Alexander Bell patented the telephone in 1876.

[148] It is possible that a face to face meeting, where Mr Kessell or Mr Guthrie explained the reason that the Respondent needed the Applicant to remain on WP2, may have resulted in the Applicant agreeing to perform the role for a further two months. There may also have been the capacity to explore further options at this meeting. The Respondent was the recipient of a large amount of JobKeeper funding. There may have been pilots receiving JobKeeper payments and not working full time, who could have assisted in covering the WP2 shifts by way of a JED. Further, discussions in relation to Mr Guthrie’s recommendation to use two other pilots could have also been beneficial.

[149] No discussion occurred, therefore no ‘Intention to issue a JED’ could occur. On this basis, the Applicant received his first and final warning on a document that was issued in contravention to the Act by the Respondent. As a result, it would be unfair to the Applicant if the Respondent was able to rely on this warning in identifying a valid reason for the Applicant’s termination.

[150] I am also of the view that the Respondent has breached its Code. I agree with the comments of Cambridge C, which were endorsed by Sams DP, that notifying an employee of their termination by email was callous. It is certainly not conduct which could be identified as ‘productive, professional and respectful’.

[151] Further, this principle can be extrapolated to the ongoing operation of the HR Department. In my view, the Applicant’s description of the HR Department engaging in Neanderthal practices is nothing more than an exacerbated and frustrated employees’ complaint. The Respondent submitted that its relationship with the unions was robust and conflict based. The fact that the Agreement expired more than 12 months ago and has been under negotiation for that period of time brings into context the industrial relationship. At a time when organisations are utilising the New Approaches provisions of the Act, the Respondent refuses to meet the Applicant in relation to his disciplinary issues. To suggest that a 90-minute drive was too far when you are discussing an employee’s livelihood and future, whilst utilising a rarely known and brand-new provision of the Act, is unsatisfactory.

[152] Whilst the Commission is not bound by the strict rules of evidence, it was not open to the Respondent to have the views of the CEO relayed by Mr Kessell. If the CEO felt that the Applicant was in breach of the Respondent’s Code and Policy, or that he had failed to follow his legal and reasonable direction, then the CEO was obligated to make himself available for cross-examination by the Applicant.

[153] I am also of the view that the Applicant’s correspondence was toned down after he received his warning. His email to Mr Kessell was an attempt at humour with a genuine gesture wishing Mr Kessell and his family a Happy New Year. It was up to Mr Kessell if he accepted this greeting, as it was for the Applicant when Mr Kessell wished him “sincere best wishes for his future endeavours” and “thanked him for his positive contribution to the Respondent” in his termination letter.

………………………………………………………….. Finally, the lack of consultation throughout the disciplinary process renders the process undertaken by the Respondent as invalid. It is procedurally unfair for there to be absolutely no verbal communication between an employer and an employee in such a situation. Every successful relationship has good communication, conversely, poor communication between the parties invariably leads to a detrimental and deficient process as has occurred in this circumstance.

[156] For the reasons identified above, I find that that Respondent did not have a valid reason to terminate the Applicant. Without a valid reason, any dismissal must be harsh and unfair.

[157] I find that the Applicant was unfairly dismissed.”

Woods v LifeFlight Australia Limited  [2021] FWC 5464 delivered 3 September 2021 per Riordan C