Valid reason for dismissal but still unfair

This extract from an unfair dismissal decision of the Fair Work Commission deals with the Commission’s reasoning when concluding that notwithstanding that there was a valid reason for the dismissal it was nonetheless relevantly unfair and qualified for a remedy.

“Findings

 

[96]    I find that the Respondent has a dedicated HR function which was heavily involved in the process of the Applicant’s termination. As such, the factor is neutral in my consideration.

 

What other matters are relevant?

 

[97]    Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.’

 

Submissions

 

[98]    The Applicant made extensive submissions with respect to other matters. In the first instance, he drew my attention to the findings of McHugh and Gummow JJ in Byrne V Australian Airlines Ltd (1995)17 as follows:

 

“…the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

 

The Applicant contended that the concept of termination being disproportionate to the gravity of the misconduct was applicable in the current matter.

[99]    The Applicant also drew my attention to the decision of Vice President Hatcher (as he then was) in Raj Bista v Glad Group Pty Ltd t/a Glad Commercial Cleaning where the Vice President observed as follows:

 

“It is well established that a dismissal for misconduct may be found to be harsh on the basis that the sanction of dismissal is a disproportionate penalty to the gravity of the misconduct. The issue of proportionality is usually considered having regard to all the relevant circumstances of the dismissed employee…” (citations omitted)

 

The Applicant submitted that in the current matter, the relevant circumstances were that at the time of the incident he was feeling overwhelmed, unheard and angry. His feelings were a result of the non-compliance of the PIC, other high stress matters he had been required to handle on

 

 

 

28 April 2023, his concerns regarding inexperienced staff and understaffing and his view that the Respondent had not provided adequate support for its workforce. The Applicant also submitted that the training provided by the Respondent did not adequately prepare him for the rigours of managing his own emotions in tense situations. The Applicant submitted that the Respondent had failed to take any of these issues into consideration when considering his termination.

 

[100]  The Applicant also submitted that the Respondent’s investigative process was procedurally unfair to the Applicant. He submitted that the first meeting held with him post the 28 April 2023 incident had been described in advance as a welfare meeting. Notwithstanding this, the Respondent asked the Applicant to provide his version of the events of 28 April 2023 and at the conclusion of the meeting advised him that he was stood down pending an investigation. The Applicant submitted that the Respondent had thus misled him about the significance and purpose of that meeting.

 

[101]  The Applicant also submitted that the show cause letter made reference to the comment made to Ms Carroll but the Respondent had made no further reference or assessment of that comment. As such, it was submitted that it was unclear as to whether this comment was taken as confirming the Respondent’s views regarding the Applicant’s intent at the time of the head- butt or whether it formed a separate allegation. Given this, it was difficult for the Applicant in considering his response.

 

[102]  The final area of concern in the Applicant’s submissions was a view that he had been subjected to differential treatment by the Respondent. The Applicant submitted that a fellow employee had threatened him with harm and had not been terminated as a result. I note that there was evidence regarding this incident submitted by the Applicant and similar evidence given by Ms Bowman regarding the same individual.

 

[103]  The Respondent submitted that the Applicant’s submissions regarding other matters did not support a conclusion that the dismissal was harsh, unjust or unreasonable. It submitted that it had properly considered the mitigating factors raised by the Applicant but found that they were not able to be used to justify his conduct. It further submitted that it provided appropriate training in de-escalation. The Respondent refuted the claim of differential treatment and outlined the practical differences between the incident noted by the Applicant and his own misconduct. The Respondent also refuted suggestions that its process was improper or misleading and noted that its welfare check meeting was genuine in intent, and that the Applicant was provided with proper process and representation.

 

[104]  The Respondent submitted that the circumstances of this matter ought to be placed in their proper perspective. Particularly, the Applicant’s work regularly involved interaction with persons who are aggressive and behave in an improper manner. Notwithstanding this, COs are required, on behalf of the State of Western Australia, to show proper care and respect for persons in custody at all times. In terms of the gravity of this responsibility, the Respondent cited the decision of the New South Wales Supreme Court in Industrial Relations Secretary v Wattie (Wattie)18 as follows:

 

“While there may be other occupations to which the regulatory context is largely irrelevant, the same cannot be said for the employment of correctional officers. The State

 

 

 

is responsible for every inmate, having either, through its enforcement arm (the police force), arrested and taken an accused person into custody, or through its judicial arm, imposed a sentence, or refused bail. Correctional officers are centrally engaged in the obligations of the State to safeguard all persons who are in custody, either on remand following refusal of bail, or not having applied for bail, awaiting a criminal hearing, or who are serving a custodial sentence imposed by a court. When a correctional officer assaults a prisoner, he or she is doing so in the exercise of the actual or ostensible authority conferred by the State on correctional officers who are its agents…”

 

The Respondent submitted that although the Applicant had not physically assaulted the PIC, his conduct was nevertheless inappropriate and inconsistent with the corrective services role of the State. It submitted that for the Applicant to have engaged in a verbal altercation and escalate that matter with physical aggression and intimidation is, as per Wattie:

 

“…antithetical to that context and to the integrity of the criminal justice system.”

[105]  Finally, the Respondent submitted that the Applicant in fact did not need to intervene in the situation with the PIC or engage in the conduct, and he could simply have removed himself and regained his composure.

 

Consideration

 

[106]  I will deal in the first instance with the Applicant’s contentions regarding fair process. I am not persuaded that there were any serious flaws in the process used by the Respondent that could be said to warrant consideration regarding the fairness or otherwise of the termination. I find that the welfare meeting was in the first instance to speak to the Applicant regarding the incident and do not have any concerns that it was improper to use the information given by the Applicant in that meeting to form a view about whether the Applicant’s behaviour ought to be further investigated. It might be said that calling a meeting a welfare meeting might somehow confer on it the status attracting the sort of privilege found in conversations with one’s doctor, lawyer or possibly priest in a confessional. However, I am not sure that any meetings between an employee and his or her employer have that sort of status and while employers should not seek to suggest that it is otherwise, employees would be well-advised to be mindful that what they say may have consequences.

 

[107]  I am also not persuaded that the language used by the Respondent in its various documents is such that the Applicant was misled. It seems clear to me that the central issue, being the head-butt, was clearly articulated as being a matter of concern and one on which the investigations were focused. While the Applicant seeks to pursue the matter of the comment to Ms Carroll, as noted above I do not find that that comment forms any part of a valid reason and so any confusion or lack of attention to that matter does not prejudice the Applicant’s case before the FWC.

 

[108]  On the issue of the differential treatment, I find on balance of probabilities that the punishment meted out to the employee who threatened the Applicant was less serious than that given to the Applicant in this matter. However, as always, each case must be weighed up on its merits and I am not persuaded that, on its face, the differential treatment weighs against the Respondent in this particular matter. However, while I note that the Respondent has distinguished the circumstances of that matter from the matter at hand, I find that the distinction

 

 

 

is unlikely to be compelling to the employees involved or indeed its employees at large. The Respondent has made much of its Code of Conduct and its witnesses before the FWC placed great stock in its words. Given that, and the stated expectations of the Respondent, it will be particularly galling for employees if they are, essentially, asked to maintain a standard of behaviour towards persons – that is to say PICs and POIs – who are insulting and threatening them that they cannot then expect from their own colleagues.

 

[109]  I then turn to the matter of the mitigating circumstances that arise directly from the Applicant’s role at the FJC. In the first instance, I find that the interaction with the POI on 28 April 2023 was a factor that contributed to the Applicant’s behaviour. I find that on balance of probability the Applicant, being a larger male and one of the most experienced COs at the FJC was likely called upon to deal with a greater share of the difficult POIs and PICs and his interaction with the POI on 28 April 2023 was such that while he was not called upon to physically intervene, he would have nonetheless been “on edge”. The POI had tried to get a weapon of sorts into the FJC and had been difficult when asked to surrender it. The unchallenged evidence is that the POI then moved through the FJC behaving in an inappropriate manner and causing disruption. It is reasonable to infer that this was stressful for the Applicant. While the Respondent may say that COs deal with such people every day, I think it unlikely that they become so inoculated that they have no emotional reaction to the sorts of behaviours they experience and certainly the Applicant’s largely unchallenged evidence is that his interactions with the POI had put him in a heightened state.

 

[110]  As to difficulties in getting extra staff I find, on balance of probability, that there were occasions where the COs at the FJC did not get the extra staff that they wanted. While I suspect that on some occasions this was due to an objective assessment of need by the Respondent rather than unavailability, it would appear that, given the events of 4 April 2023, there were times when extra staff simply could not be provided. While I understand the practical issues facing the Respondent, particularly in the current job market, it is nonetheless the case that the perception of staff at the FJC was that it was difficult to get extra staff. I also accept that the Applicant had been raising the issue of staffing with the Respondent for some time and he was becoming increasingly frustrated by what he saw – albeit through the lens available to him – of the Respondent’s efforts to address the matter. I further find that, based on the evidence presented, it is likely that there were at least some inexperienced staff regularly working on the roster at the FJC, and further, that these COs may have been hesitant and less confident than the more experienced COs, leading to an increase in incidents of POIs and PICs behaving aggressively.

 

[111]  I then turn to the issue of the alleged under-staffing per se. It is clear that perhaps the most significant factor in the Applicant’s mind more broadly was the issue of under-staffing and its associated issues, albeit that on this particular occasion it was exacerbated by his dealings with the POI. Contemplation of this issue presents a significant challenge to the FWC. Clearly, the Applicant and his former colleagues who gave evidence are unanimous in their view that the FJC is under-staffed. The Respondent on the other hand, while perhaps conceding that there may be times – such as 4 April 2023 – where under-staffing is a problem, seems to be of the view that its staffing protocols are reasonably robust and staffing levels are usually appropriate. The question is whether or not from an objective viewpoint the FJC is understaffed. Determining this is an exercise far beyond the scope of this unfair dismissal claim. I would, however, make some observations.

 

 

 

 

[112]  In the first instance, I suspect that in many if not most workplaces in Australia, there will be employees who take the view that their workplace is under-staffed. Many of these views will no doubt be valid – perhaps in some cases for some parts of the working week, perhaps in other cases for all parts. Determining the ideal staffing level is in most cases a very difficult exercise, constrained by many factors such as budget and predictability of workload. As such, it is probably rare to find a workplace where both the employees and the people who oversee labour budgets are both happy at all times and I suspect that the latter are more often happy than the former.

 

[113]  In some workplaces a modest level of understaffing might cause inconvenience and a low level of dissatisfaction. However, I suspect that in the Respondent’s workplace, which is routinely dangerous and stressful, a modest level of understaffing could have serious safety ramifications and lead to significant dissatisfaction and potentially distress amongst employees. It does not fall to me to judge the appropriate level of staffing for the Respondent, but I am mindful that of those persons who have been on the front line of the Respondent’s activities at FJC and who gave evidence in this matter, there does appear to be a strong feeling that there is an understaffing problem. I note that in some cases, such as Mr Sturgeon, those staff have witnessed a reduction in staffing levels from those of the previous contractor without a concomitant reduction in workload. I note further as I set out above that there is a perception that getting additional staff when needed is difficult and that turnover and inexperienced staff are, on balance of probability, real issues and issues that impact on the understaffing concerns at the FJC. I note also the unchallenged evidence of Ms Bowman and Mr Sturgeon that the Applicant was stressed and frustrated by what he regarded as an understaffing issue that was not, in his view, being effectively addressed.

 

[114]  The recent focus on psychosocial health in the workplace is to be welcomed, but something that presents a significant challenge for workplaces like the FJC. As I put to Mr Snow, the Respondent’s employees are routinely subjected to abuse from PICs and POIs that could not be tolerated if directed by an employee towards a fellow worker in the Respondent’s or any other workplace. The Respondent’s employees are routinely subjected to comments that would be unlawful if made to a person walking past on the street. Further, all of this goes on with, in many instances, the underlying threat of physical violence.

 

[115]  While I accept that the Respondent has some measures in place via its training programs to provide its employees with tools to deal with the realities of their workplace and to guide them at times when they feel they may be unable to maintain their composure, such tools are imprecise instruments. They cannot realistically be otherwise as they are trying to cope with human emotions which are incredibly complex. This is not to suggest that the Respondent does not genuinely wish to equip its employees to deal with the very real issues they face at work, nor is it to suggest that the Respondent has fallen short in its duties. What it is to suggest is that it may be unfair to apply the standards expected of angels to mere humans and in keeping with that sentiment, it may be necessary to take a very nuanced view of punishment for those employees who break the rules.

 

[116]  In this instance, I think it is appropriate to consider that the Applicant has no prior history of this behaviour, there is evidence that he was very stressed and frustrated about what he genuinely perceived to be an understaffing problem that created genuine issues for him and

 

 

 

his colleagues, and that he did not commit an assault on a person. I also note that he accepted responsibility and apologised. On the other hand, I accept that he was frustrated and angry and exasperated and vented his frustrations in contravention of his training. I also accept that he should not have done what he did and that his actions did not de-escalate a difficult situation but rather inflamed it. I further accept the difficult position in which the Respondent finds itself with regards to not setting precedent and any perception that it can be seen to in any way condone or accept inappropriate behaviour towards PICs. However, such a black and white position is, in my view, problematic.

 

[117]  Put simply, adopting such an approach leaves the Respondent with no ability to properly consider whether the outcome in a particular case can be said to be a just outcome in all of the circumstances. To be steadfastly opposed to making any allowance for genuine human frailties in very difficult circumstances where those frailties are routinely put to the test appears to me to leave no room for fairness in those – possibly rare – circumstances that may warrant a more considered approach.

 

[118]  In addition to the cases cited by the Applicant, I am also mindful of the decision in

Qantas Airways Ltd v Cornwall19 where the Full Court of the Federal Court of Australia said:

 

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

 

I am particularly persuaded by the notion that conduct is not committed in a vacuum but rather in the course of the interaction of persons and circumstances. In the matter before me, I find that looking at those interactions and circumstances leads me to the conclusion that the mitigating circumstances highlighted by the Applicant are such that they weigh in favour of a finding that the dismissal was harsh.

 

[119]  I should make two further comments. The first is regarding the Respondent’s submission that the fact that the Applicant did not physically assault the PIC ought not weigh in his favour. I find that this proposition cannot be accepted. To do so seems to suggest that proportionality is irrelevant. This does not seem to leave much room for the concept of a “fair go all round” which is a fundamental consideration for the FWC. I find that the fact that the Applicant did not commit any act of violence to the person of the PIC is relevant, as is the fact that later in the day he had a further opportunity to harm the PIC but did not do so. I find on balance that the Applicant was probably showing frustration rather than trying to intimidate the PIC and he took this frustration out on the cell door rather than the Applicant. I further find that a distinction must be drawn between physical assault on a person and expressing frustration upon an inanimate object. This then leads to my second comment.

 

[120]  The Respondent made much of the duties of a CO and the responsibility to represent, as it were, the State of Western Australia. Further, it cited case precedent about COs and the integrity of the criminal justice system. To that I say that firstly, the case cited (Wattie) involved physical assault and I therefore draw a distinction between that matter and the current matter. Secondly, in the Wattie case, the employee was an employee of the government. The State of

 

 

 

Western Australia has chosen to outsource its responsibilities for at least part of the criminal justice system in Western Australia – as it is perfectly entitled to do. In doing so however, it has largely absolved itself of the responsibility, particularly given the new Western Australian legislation dealing with psychosocial welfare at work, of dealing with the WHS issues in a very difficult workplace. As such, I find the Respondent’s appeals to the integrity of the State criminal justice system in support of a what appears to me to be, in effect, a rigid “one strike and you’re out” approach to employee misconduct are not particularly compelling.

 

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

 

[121]  In making this decision, I am mindful of the decision of the Full Bench of the FWC in

B, C and D v Australian Postal Corporation T/A Australia Post20 where the Bench said:

“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh: (i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable; against (ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

 

It is in that weighing that the Commission gives effect to a ‘fair go all round.’”

 

[122]  I have made findings in relation to each matter specified in section 387 as relevant and I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.21

 

[123]  I find that notwithstanding the Respondent had a valid reason to terminate the Applicant, notified the Applicant of that reason and gave him an opportunity to respond, the dismissal was harsh in the circumstances. I find that the gravity of the misconduct, taken together with the mitigating circumstances discussed above, are such that termination of the Applicant’s employment was an excessive punishment.

 

Conclusion

 

[124]  I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.

 

Remedy

 

[125]  Being satisfied that the Applicant:

 

  • made an application for an order granting a remedy under section 394;
  • was a person protected from unfair dismissal; and
  • was unfairly dismissed within the meaning of section 385 of the FW Act,

 

 

 

 

I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.

 

[126]  Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:

 

(a)      I am satisfied that reinstatement of the Applicant is inappropriate; and

 

(b)     I consider an order for payment of compensation is appropriate in all the circumstances of the case.

 

[127]  Following the hearing, I directed the parties to make submissions on remedy and I have relied upon those submissions in my consideration of an appropriate remedy in this case.”

Rodney-Hansen v Ventia Australia Pty Ltd (2024) FWC 615 delivered 13 March 2024 per O’Keeffe DP