Allen & New Horizons Enterprises Ltd [2005] NSWIRComm 1179 (7 November 2005)

Last Updated: 8 December 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Allen & New Horizons Enterprises Ltd [2005] NSWIRComm 1179

FILE NUMBER(S): IRC 823

HEARING DATE(S): 25/07/2005

DECISION DATE: 07/11/2005

PARTIES:

APPLICANT

Mr Trevor Paul Allen

RESPONDENT

New Horizons Enterprises Limited

JUDGMENT OF: Stanton C

LEGAL REPRESENTATIVES

APPLICANT

Mr J Wormington of Counsel

RESPONDENT

Mr Hellyer, Solicitor

Workplace Relations Consulting Pty Ltd

CASES CITED: Antonakopoulos v State Bank (1999) 91 IR 385

Bankstown City Council v Paris (1999) 93 IR 209

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Franklins Ltd v Webb (1996) 72 IR 257 at 262

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: STANTON C

7 November 2005

Matter No IRC 823 of 2005

Trevor Paul Allen and New Horizons Enterprises Limited

Application by Trevor Paul Allen re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

DECISION

[2005] NSWIRComm 1179

1 This is an application pursuant to section 84 of the Industrial Relations Act 1996 (the Act) by Mr Trevor Allen (the “applicant”) seeking relief from his alleged unfair dismissal on the grounds of unsatisfactory work performance from New Horizons Enterprises Limited (the “respondent”) on 31 January 2005.

2 The applicant, aged 37 years, commenced employment with the respondent on 1 December 2000 as a Residential Support Worker. At the time of dismissal, the applicant was located at the respondent's St James Road facility in Newcastle and reported to Ms Pat Waugh, the then Acting Hunter Support Service Manager.

3 The applicant was dismissed following a disciplinary interview conducted by the respondent on 31 January 2005. On Friday, 28 January, the applicant received a letter from Ms Waugh dated 27 January requiring him to attend a meeting the following Monday, 31 January. The letter stated:

This letter is to advise that you are required to attend a meeting with New Horizons management and Phil Amos (New Horizons advisor) on Monday 31 January 2005 at 3pm. This meeting will be at the office of Phil Amos, Level 2, 7 Newcomen Street Newcastle.

The reason for the interview is to discuss issues related to your work performance.

You may, if you wish, have a representative of your choice to attend the meeting as an observer.

4 The applicant attended the meeting as requested where Mr Amos put a series of allegations and complaints made against him. He was unable to arrange a suitable support person. He was subsequently terminated because he would not respond to the allegations.

5 On 1 February, the applicant received confirmation that his employment had been terminated. The termination letter from Ms Waugh dated 31 January stated, amongst other things:

Following a full investigation regarding continual complaints from employees regarding your work performance and further to disciplinary interviews held on various dates during your employment and disciplinary interview held on 31 January 2005 the Company has determined that your work performance is not to the standard required.

As a consequence of that investigation it is with regret that your service as a Residential Support Worker with the Company will be terminated at the close of business on 21 February, which is inclusive of a three (3) week notice period in accordance with the Award covering your calling and relevant legislation with the effective date of termination being 31 January 2005. You will not be required to work out your notice period in which case a payment will be made in lieu of notice. The termination is due to:

“Unsatisfactory work performance”.

6 The applicant received 3 weeks pay in lieu of notice. In his application, he sought reinstatement and in the event the Commission rendered that primary remedy impracticable, monetary compensation.

7 The application was filed on 17 February 2005 and Ritchie C conducted a conciliation conference on 10 March 2005. Directions for filing of evidence were issued. A hearing scheduled for 16 May 2005 before McLeay C was vacated. The matter was allocated to the Commission, as presently constituted on 29 June 2005 to bring the matter to hearing.

8 The matter was subject to arbitration on 27 July 2005. Mr J Wormington of Counsel appeared for the applicant. Mr G Hellyer, solicitor appeared for the respondent.

9 Mr Wormington relied upon an affidavit filed by the applicant on 4 April 2005 and an affidavit in reply filed on 20 May 2005. Mr Hellyer relied upon affidavits filed on 26 April 2005 by:

Mr Stephen Kinkead, Chief Executive Officer;

Ms Lisa Marshall, Human Resources Officer;

Ms Pat Waugh, Case Manager; and

Mr Phillip Amos, Industrial Advocate, Workplace Relations Consulting.

No evidence was lead from the complainants whose allegations and complaints gave rise to the meeting on 31 January and the applicant's subsequent dismissal

EVIDENCE

For the Applicant

Mr Trevor Allen

10 In the affidavit that formed the basis of his evidence in this matter, the applicant outlined he was rostered to provide residential care, including assistance to dress, shower and prepare food for a number of psychiatric and intellectually disabled residents living in accommodation operated by the respondent.

11 The applicant believed his dismissal was unexpected and without notice or warning. With the exception of a single verbal warning in February 2004 for alleged swearing at a resident, the applicant maintained he had not received any other verbal or written warnings concerning his conduct or performance while employed by the respondent.

12 It was the applicant’s evidence that none of allegations or alleged complaints concerning his work performance and set out in the affidavits filed in support of the respondent’s case had been put to him prior to the meeting on 31 January. He maintained there was no substance to, nor was he afforded a proper opportunity to participate in, or respond to, the “full investigation” referred to in the respondent's letter of termination. He also maintained the discussions at the meeting were of a general rather than specific nature. Simply put, the respondent’s investigation was flawed:

“I cannot understand how the organization conducted a full investigation when I knew nothing about it. If indeed the concerns had a basis of fact, and I was not consulted, how could I respond to the allegations”.

13 The applicant stated his work performance was subject to formal appraisal by the respondent on 11 June 2003 and 16 September 2004 and, no adverse matters related to his performance were identified. Ms Waugh conducted the most recent performance appraisal.

14 The applicant was unable to arrange support person representation through his Union, local organiser or delegate at short notice over the weekend of 29 and 30 January. He advised the Acting Manager, Ms Waugh of this difficulty on the morning of 31 January. He also dismissed as gossip, rumours circulating at the time suggesting that he was going to be sacked. The applicant expressed this view to Ms Waugh.

15 The Acting Manager, Ms Waugh, Human Resources Officer, Ms Lisa Marshall, and Mr Amos represented the respondent at the meeting. The

16 applicant recalled the meeting commenced with Mr Amos shaking his hand and asking him words to the effect:

“Do you know why you are here?"

The applicant replied:

"No".

Mr Amos said words to the effect:

"It is to do with your work performance and complaints received".

The applicant stated he was shocked by such remarks and replied words to the effect:

"I have no representation and I am not going to answer anything at this time".

Mr Amos subsequently asked:

"Why?”

The applicant replied words to the effect:

"I want to be represented, you have two other management staff, I have no one to support me."

17 The applicant stated Mr Amos alleged that an unnamed worker had complained that he had breached the Disability Service Standards and subsequently asked him:

"What do you have to say?"

The applicant said he was shocked and replied:

"I don't have anything to say because apart from having no representation I don't know what you are talking about."

The applicant said Mr Amos asked Ms Marshall to document the fact that he was making no comment because he had no representation. The applicant stated that he then said to Mr Amos:

"What proof have you got that I have done anything wrong?”

Mr Amos replied:

"You have been investigated and your services are no longer required as of today."

18 It was the applicant's evidence that he neither knew of the complaints, their nature nor the respondent’s purported "investigation". Simply put, the reference in the termination letter concerning "disciplinary interviews held on various dates during your employment" was in his view a total fabrication.

19 The applicant stated that in September 2004, he was physically assaulted by a fellow member of staff, Mr Clive Johnson, one of the complainants who worked at St James Road. There were a number of resident witnesses to the incident which he had reported to the respondent. Ms Marshall was involved in the subsequent investigation and witnessed some of the abusive conduct rendered against him by Mr Johnson. Counselling and conflict resolution training for the applicant and Mr Johnson was subsequently arranged with Relationships Australia by the respondent. The applicant did not attend because he believed that he was the victim of the assault and further, he did not like the provider.

20 A complaint by Mr Johnson alleged the applicant breached disability standards “on every shift”. In his complaint, Mr Johnson had stated:

“I only work with this worker for 4 hrs per month, but would like to make this complaint because of my concern of the welfare of clients and the morale of staff at the St James Rd property”.

The applicant vigorously defended himself against this allegation and seriously doubted its reliability, on the basis of motive, against the backdrop of the previous alleged physical assault and, the few hours Mr Johnson worked with him each month.

21 The applicant seriously questioned why some of the complainants referred to in Mr Kinkead’s affidavit had suggested that he would work “well” if transferred to the Broadmeadow facility “given the allegations made against me”.

For the Respondent

Mr Stephen Kinkead

22 In the affidavit that formed the basis of his evidence in this matter, Mr Kinkead deposed he had been the Chief Executive Officer for the duration of the applicant’s employment and he personally involved himself in staff issues when required to do so, particularly in relation to issues such as workers compensation and complaints from staff or clients. In this regard, during November 2001, he had recommended the applicant be transferred to a less stressful workplace following an absence due to stress.

23 Mr Kinkead stated his concern about the applicant’s behaviour heightened in January this year when he received 3 written employee complaints made between 22 and 24 January and, 6 records of conversation dated between 18 and 23 January, from staff concerning the applicant's behaviour. This concern prompted him “to order an immediate review of the situation and a meeting with Trevor” that subsequently took place on 31 January.

24 It was Mr Kinkead's evidence that Ms Waugh had received complaints from 3 employees employed at the St James Road facility, including Mr Clive Johnson and the complainants had sought the applicant's transfer from St James Road to the Broadmeadow facility on a permanent basis.

25 In cross examination Mr Kinkead stated Mr Amos and "particularly" Ms Waugh together with Ms Mathews, the Sydney based Human Resources Manager and Ms Marshall undertook the investigation and provided reports concerning the allegations to him. He agreed that the complaints made contained no specific or major allegations of poor performance. Mr Kinkead confirmed no issues related to the applicant’s misconduct or poor performance had been raised in the performance appraisals undertaken in June 2003 and September 2005.

26 Further, Mr Kinkead affirmed he had instructed Mr Amos to conduct an investigation and arrange the meeting on 31 January. He could not recall whether Mr Amos had met with any of the complainants or whether the allegations were put to the applicant as part of that investigation. He did recall, under cross examination, the express instruction to Mr Amos that he was to dismiss the applicant unless he could provide reasons to those present at that meeting why he should not be terminated.

27 Mr Kinkead agreed it was normal practice for the respondent to afford staff an opportunity to respond to allegations made against them. With reference to a case involving serious allegations, he agreed that it would be open to the respondent to stand an employee down with pay, pending an investigation of the allegations raised. He also agreed that given the applicant was unable to secure union representation or arrange a support person at short notice, the meeting on 31 January could have been delayed a few days - or in the alternative, the respondent could have put the allegations to the applicant in writing and allowed him time for a written response.

28 Mr Kinkead confirmed Mr Amos' instructions to dismiss the applicant were grounded in the fact that a large number of issues had surfaced over one week and there were various reports on file concerning the applicant's language and past poor performance in dealing with people.

29 In re-examination, Mr Kinkead stated he was not aware whether Mr Amos prepared a formal report of the investigation nor whether a formal report existed.

Ms Lisa Marshall

30 Ms Marshall, the respondent’s Human Resource Officer, deposed an incident occurred at the respondent’s St James Road facility on 12 September 2004 between the applicant and another employee, Mr Johnson. The applicant had claimed Mr Johnson physically assaulted him and Mr Johnson counter claimed the applicant was verbally aggressive towards a client and himself. Due to a lack of evidence, no disciplinary action was taken. Both staff were directed to undertake company sponsored counselling and conflict resolution training.

31 As a result of the applicant's work stress, his roster was varied in February 2004 to allow him to rotate shifts to give him to spend more time with his family.

32 Ms Marshall stated three formal complaints were received in January concerning the applicant’s attitude to residents and staff. In cross examination, she recalled that it was Ms Waugh who asked the three complainants to put their complaints in writing if they sought a formal investigation. Additionally, seven records of conversation were made by staff who did not wish to make a formal complaint, as they were, according to Ms Marshall, “anxious of the repercussions”.

33 Ms Marshall affirmed it was Mr Kinkead who had directed Mr Amos investigate the various complaints and records of conversation.

34 In cross examination, Ms Marshall stated that prior to January 2005, the only complaint she had received concerning the applicant's conduct, other than the assault incident in September 2004, related to a swearing incident in February 2004 that resulted in a verbal warning. Otherwise, the only other time she had cause to meet the applicant in a formal sense was the meeting at Mr Amos' office. It was Ms Marshall’s recollection that no other warnings had been given to the applicant.

35 Ms Marshall stated she was not personally involved in any form of investigation. She simply did not know if anyone from the respondent had spoken to the applicant. Her involvement was limited to advising management that complaints had been received and forwarding them to the Human Resources Department in Sydney. Ms Marshall denied that she herself had conducted a formal investigation and reported her findings to Mr Kinkead.

36 Ms Marshall believed the Human Resources Manager, Ms Matthews was the person who would have been in charge of the investigation in liaison with Mr Kinkead. She did not know whether Ms Matthews had spoken to the complainants or whether the allegations had been put to the applicant. Ms Marshall understood Ms Mathews had briefed Mr Amos prior to the 31 January meeting.

37 Ms Marshall confirmed that when the applicant arrived for the meeting at Mr Amos’ office on 31 January, he clearly stated that he did not wish to answer any questions without a support person in attendance. She said despite this statement, Mr Amos proceeded to put the complaints and allegations to the applicant.

Ms Patricia Waugh

38 Ms Waugh deposed she was the Acting Support Services Manager at the time of the applicant’s dismissal and had worked with him during his period of employment with the respondent to improve and better manage his approach to client care. Prior to the incident involving Mr Johnson, staff had made a number of complaints concerning the applicant’s behaviour and subsequently, the applicant’s work colleagues began to lodge "more formal and serious complaints" about his behaviour and attitude towards clients and other staff. She believed the level of complaints was escalating and those complaints:

“...contained information on behaviours that Trevor had not been displaying while I was in attendance at his particular workplace”.

39 In cross examination, it was Ms Waugh's evidence that a series of formal and serious complaints from staff concerning the applicant's attitude and behaviour were lodged between 18 and 24 January 2004. The complainants sought to have the applicant transferred to the respondent's Broadmeadow facility. Ms Waugh stated she had informed the relevant staff that if their complaints were formal, rather than verbal, the respondent's Sydney based human resources department would be required to formally investigate and validate the allegations.

40 Ms Waugh said it was not within her level of responsibility to know whether the respondent, or its advisor, Mr Amos, had undertaken a formal investigation. She agreed that the complaints subject to the investigation contained no specific allegations of poor performance or misconduct. Moreover, there were no references to dates or times the alleged behaviour occurred. Ms Waugh also stated that it was not her role to determine the validity of complaints. That responsibility rested with human resources in Sydney and she refused to name the relevant and responsible employee.

41 Ms Waugh agreed that prior to the meeting on 31 January, she informed the applicant to state at the commencement of the meeting that he did not wish to respond without the presence of a support person. She recalled Mr Amos subsequently put the allegations to the applicant who protested he would not respond due to the absence of a support person.

42 Ms Waugh said Mr Amos dismissed the applicant because he did not provide a reasonable explanation to the allegations put. Neither she nor Ms Marshall instructed Mr Amos to dismiss the applicant. Ms Waugh did not know who had issued that instruction.

43 Ms Waugh also confirmed she undertook the applicant's September 2004 performance review and that review did not identify any negative conduct or performance. Ms Waugh also confirmed that employee files were not normally reviewed as part of the appraisal process.

Mr Phillip Amos

44 Mr Amos deposed he had acted for the respondent in the capacity of advisor for many years and shortly prior to the 31 January meeting, he was instructed by Mr Kinkead to conduct a disciplinary meeting with the applicant in the presence of Ms Marshall and Ms Waugh.

45 Mr Amos confirmed his instructions from the respondent were to interview and obtain a response from the applicant concerning certain allegations and complaints made against him. In the event there was no response from the applicant, Mr Amos said his instructions were to dismiss him. Mr Amos subsequently informed the applicant that the allegations were similar to others that had previously been raised with him over the term of his employment.

46 Mr Amos stated the applicant had received written advice inviting him to bring a support person to the meeting and he had ample notice to arrange someone to attend. He confirmed that the applicant had stated at the commencement of the meeting that he was unable to secure a support person at short notice. Mr Amos was unaware that the applicant was only advised of the proposed meeting on Friday, 28 January. He was also unaware that the applicant had sought a support person through his union, local organiser and union delegate over the preceding weekend.

47 Mr Amos stated he had advised the respondent to undertake an investigation to validate the allegations. He was unaware who initiated the investigation. It was Mr Amos' evidence that he was instructed that the respondent had conducted an investigation and concluded the allegations had a factual basis. He was surprised that the respondent had not conducted an investigation.

48 In cross examination, the following exchange took place;

Q: So you didn't go to New Horizons and carry out the investigation?

A: No.

Q: You just advised to carry one out?

A: I wasn't advised to carry one out.

Q: Okay. Who did Mr Kinkead say carried out the investigation?

A: I don't recall him ever telling me that - it was just New Horizons carried out the investigation.

Q: What did Mr Kinkead say were the results of the investigation?

A: The results were that there was enough - the allegations were substantiated enough to warrant Mr Kinkead to do something about it and one of those outcomes was the termination of his employment.

49 Mr Amos agreed the respondent's instructions were definite and when the applicant declined to respond to the allegations put to him, he had no alternative pursuant to those instructions other than to terminate the applicant:

“...the instructions were quite clear...if there was no acceptable response to the allegations then we were to terminate his employment and I made the decision on the day that no response is not an acceptable response.”

50 Mr Amos denied the meeting was convened to dismiss the applicant irrespective of whether he provided a response to the allegations.

51 Mr Amos was unaware of evidence before the Commission that the only warning on the applicant’s employment record was a verbal warning for swearing, Mr Amos confirmed he had not been personally involved in the investigation:

Q: ...can you recall what investigation had taken place in relation to the last lot of complaints?

A: I wasn’t involved in that investigation to the extent that I advised my client that they should carry out an investigation and validate the information that was contained in the written complaints were correct.

52 In re-examination, Mr Amos said that in the event the applicant did respond to the allegations, his instructions were that any counter evidence or comments from the applicant would be referred back to the respondent for further investigation.

SUBMISSIONS

For the Applicant

53 Mr Wormington submitted there was no valid reason for termination and the dismissal was clearly harsh, unjust and unreasonable. On the evidence, a swearing incident in February 2004 was the only complaint ever brought to the applicant's attention. The identity of the complainant and, the time and place of the complaint were kept confidential from the applicant. A complaint that he swore in the workplace was merely put to the applicant and in response, he admitted that sometimes he did swear in the workplace. The applicant subsequently received a verbal warning.

54 The applicant had received two performance appraisals since commencing employment with the respondent and both, including the most recent in September 2004, did not conclude his conduct or performance was problematic.

55 Ms Waugh had given the complainants a choice of making an informal verbal complaint or a formal written complaint that would require investigation. Mr Wormington contended Mr Johnson had a motive to have the applicant either terminated or transferred from the St James Road facility and an inference could be drawn that Mr Johnson was seeking revenge upon the applicant for reporting him for the assault. The other complainants had told Ms Waugh that they wanted the applicant transferred to Broadmeadow.

56 The respondent failed to inform the applicant of the complaints made against him or, that he was under investigation. Nor was the applicant included in any facet of the "investigation" prior to the meeting on 31 January.

57 The respondent's "investigation" that it considered justified the applicant's dismissal was flawed. There was no investigation. First, it was Mr Kinkead's evidence that an investigation had been undertaken and the findings reported to him. Second, it was Ms Marshall's evidence that she never conducted a formal investigation and she was unaware that one was undertaken. She simply forwarded the complaint details to Ms Mathews, As for Mr Amos, Mr Kinkead had informed him that an investigation had been undertaken and the allegations had been substantiated enough to warrant the respondent to do something about it. Mr Amos simply accepted Mr Kinkead's instructions on their face. Fourth and for her part, Ms Waugh did not know whether an investigation had been undertaken.

58 The applicant had made three attempts to contact an appropriate trade union related support person at short notice without success and he told Ms Waugh prior to the meeting, who advised him to state his concern at the commencement of the meeting.

59 The nature of the complaints put to the applicant by Mr Amos were general and contain no specific allegations of misconduct. Mr Wormington submitted it was unreasonable for the respondent to expect the applicant to respond without the presence of a support person.

60 The applicant no longer sought re-instatement and accordingly, his claim was for monetary compensation only. The applicant had sought alternative work and remained unemployed.

For the Respondent

61 In a brief submission, Mr Hellyer stated the respondent provides residential care and assistance to people with a psychiatric or intellectual disability. The applicant had a history of aggressive and abusive behaviour towards residents and staff. He had received one verbal warning and had been directed to undertake conflict resolution training. He had also been directed to take stress leave on workers compensation on two occasions in addition to two absences on account of stress. Nevertheless, staff have continued to make complaints concerning the applicant’s language and aggressive behaviour in the workplace.

62 Mr Hellyer stated the 31 January meeting took place following three written complaints and seven "records of interview" made against the applicant in January 2005. Mr Amos was “engaged to carry out the investigation along with the acting manager and human resource officer.” The applicant refused to co-operate and was given notice of termination on the grounds of the respondent's duty to protect its residents.

CONSIDERATION

63 This case turns on the evidence before the Commission concerning the various allegations levelled against the applicant and their supposed investigation. Put simply, there was no investigation.

64 In cross examination, Mr Kinkead stated the respondent had raised a number of performance related matters with the applicant over the four year's of the applicant's employment. The respondent was entitled to have regard to, and take account of, the applicant's past performance and any formal warnings. It failed to do so. The performance review process was the appropriate forum to deal with such issues in a rational and orderly way. I turn then to the facts and circumstances of this particular case.

65 Mr Kinkead's evidence was that Mr Amos had conducted the "investigation" on behalf of the respondent. Mr Amos denied this. It was Mr Amos' evidence that he had advised the respondent to undertake an investigation and he thought that an investigation had been carried out.

66 The specific allegations of poor performance were not put to the applicant in any form before to the meeting on 31 January and at all times prior, the applicant was unaware of the allegations and, the fact that he was under “investigation”. Mr Hellyer's submission concerning Mr Amos' role "to carry out the investigation" sits at odds with the evidence.

67 There is no evidence in this matter that the applicant had been warned his position was in jeopardy. Indeed, having regard to the performance reviews that he had received and the lack of unfavourable comments therein, he was entitled to believe his position was perfectly safe, until he received the letter from Ms Waugh on Friday, 28 January 2005.

68 The applicant was unable to arrange representation at short notice and in this regard, had provided a reasonable explanation to the respondent. The presence of a "support person" is frequently a feature of "best practice" in the case of dismissals on the grounds of performance or misconduct. Given Mr Kinkead's firm instructions, it was manifestly unfair for the meeting to proceed in the absence of a support person of the applicant's choice when the respondent had three representatives in attendance. In my view, the applicant felt ambushed and in all the circumstances, the scales were well and truly tipped against him. Such was the situation the applicant found himself in. The meeting could simply have been deferred a few days without causing prejudice to the respondent.

69 While neither Mr Wormington nor Mr Hellyer referred to any authorities of the Commission in support of their respective cases, it is relevant for the Commission to consider the applicant's dismissal in an appropriate legal context gleaned from the following authorities.

Onus to Investigate

70 In Franklins Ltd v Webb (1996) 72 IR 257 at 262 the Full Bench observed that employers:

...need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.

While that case dealt with summary dismissal for alleged theft, it is illustrative of the heavy onus upon an employer to ensure allegations in respect to an employee's conduct or performance are investigated in a diligent and procedurally fair manner and, support the ultimate sanction of dismissal. That onus was not discharged by the respondent in this matter.

Procedural Fairness

71 Procedural fairness is a factor the Commission may take into account when assessing whether a particular dismissal can be characterised as "harsh, unreasonable or unjust." In Antonakopoulos v State Bank (1999) 91 IR 385, the Full Bench considered the basis upon which procedural issues might be considered in the context of an alleged unfair dismissal. The Commission said at p389:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

and later, at page 390:

...the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust .

72 The Commission's statutory basis for considering procedural issues lies in section 88 of the Act:

88 In determining the applicant's claim, the Commission may, if appropriate, take into account:

a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and

c) whether a warning of unsatisfactory performance was given before the dismissal, and

d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

e) whether or not the applicant requested reinstatement or re-employment with the employer, and

f) such other matters as the Commission considers relevant.

It is pertinent to note that these matters are discretionary and the Commission may take other relevant matters into account (s88(f)).

Was the dismissal harsh, unreasonable or unjust?

73 In Byrne v Australian Airlines Ltd (1995) 185 CLR 410, the High Court dealt with a federal award provision that prohibited "harsh, unreasonable or unjust dismissal". In their joint judgment, McHugh and Gummow JJ observed at 465:

... 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.

Their Honours went on at 468 to say:

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable.

74 A Full Bench authority reaffirming the distinction between the words, 'harsh, unreasonable or unjust' and requiring the Commission to make a positive and specific finding on a dismissal is to be found in Bankstown City Council v Paris (1999) 93 IR 209 at 212:

The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them.

This is such a case.

CONCLUSION

75 The evidence before the Commission does not justify the applicant's dismissal on the grounds of unsatisfactory work performance. The various complainant's allegations were not put to him in any detailed or formal sense, other than generally during the interview on 31 January. The complainants were not called to give evidence. As there were no other written warnings or formal counselling records in respect of his alleged behaviour over the course of his employment with the respondent, other than one verbal warning, it is axiomatic that a dismissal, where no issue of poor performance or misconduct is made out , must be unfair.

76 Clearly, this case is supportive of the need for employers to pursue performance and conduct issues with employees diligently. As a minimum, if there was evidence concerning the applicant's past performance or conduct at St James Road, the nature of those complaints or issues should have been investigated and brought to the attention of Ms Waugh for the purposes of the September 2004 performance review.

77 In the absence of a proper investigation, the respondent is unable to discharge its evidentiary onus that the applicant is guilty of the allegations concerning his conduct and performance that lead to his dismissal. The decision to dismiss the applicant was made on the false premise that the allegations had been investigated and there was substance to them. That was certainly the clear view of Mr Amos, an experienced industrial relations advisor to the respondent, on his instructions from Mr Kinkead.

78 There was clearly an opportunity for the respondent to defer the meeting to allow the applicant to arrange a support person or, in the alternative, put the allegations in writing to the applicant and request a written response within a reasonable time frame.

79 Having considered all the evidence and submissions of the parties put before the Commission, I find the applicant was not afforded procedural fairness and there was no investigation of the alleged complaints undertaken by the respondent.. The applicant's dismissal was procedurally unfair and in all the circumstances "harsh, unjust, and unreasonable" within the meaning of the Act.

REMEDY

80 The applicant does not seek reinstatement. The statutory emphasis and policy intent of the Act is directed towards reinstatement as a primary remedy. Other remedies may only be ordered if reinstatement is considered to be impracticable.

81 Having weighed up the factors evident in this case, including the nature of the respondent’s operations, I find that reinstatement is not practical and determine that compensation is the appropriate remedy. I assess compensation at $18460.00 based on twenty weeks pay at the rate of $923.00 per week.

82 I so order.

83 Matter No IRC 823 of 2005 is so concluded.

ooOoo

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: STANTON C

7 November 2005

Matter No IRC 823 of 2005

Trevor Paul Allen and New Horizons Enterprises Limited

Application by Trevor Paul Allen re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

ORDER

Pursuant to section 89(5) of the Industrial Relations Act 1996 New Horizons Enterprises Limited shall pay to the applicant an amount of $18460.00 (eighteen thousand four hundred and sixty dollars) within 21 days of the date of this decision.

I so order.

J D Stanton

Commissioner

LAST UPDATED: 07/12/2005