CITATION : 2012 WAIRC 01106 CORAM : COMMISSIONER J L HARRISON HEARD : THURSDAY, 13 SEPTEMBER 2012, FRIDAY, 14 SEPTEMBER 2012, FRIDAY, 2 NOVEMBER 2012 DELIVERED : TUESDAY, 18 DECEMBER 2012 FILE NO. : U 50 OF 2012 BETWEEN : DAVID HARDS Applicant AND TOWN OF BASSENDEAN Respondent Catchwords : Termination of employment - Claim of harsh, oppressive or unfair dismissal - Applicant on probation - Applicant terminated for unacceptable and disrespectful communications and insubordination - Principles considered - Applicant not harshly, oppressively or unfairly dismissed - Application dismissed Legislation : Industrial Relations Act 1979 (WA) s 29(1)(b)(i) Result : Dismissed Representation: Applicant : In person Respondent : Mr S Roffey (as agent) Case(s) referred to in reasons: Byrne v Australian Airlines (1995) 61 IR 32 East v Picton Press Pty Ltd (2001) 81 WAIG 1367 Shire of Esperance v Mouritz (1991) 71 WAIG 891 Undercliffe Nursing Home v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 Reasons for Decision Background 1 Mr David Hards (the applicant) was employed by the Town of Bassendean (the respondent) between 23 November 2011 and 28 February 2012 as a truck driver/general hand. He previously worked with the respondent on a casual basis for approximately three weeks in October 2011. The applicant worked in the respondent’s parks and gardens section. At the time of the applicant’s termination he was subject to a probationary period which had been extended by the respondent for up to a 34 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. further three months on 10 February 2012 after complaints were made about the applicant’s conduct and attitude by the respondent’s workshop supervisor Mr Bill McCracken. 2 Mr McCracken made two written complaints about the applicant, one dated 1 February 2012 and the other dated 2 February 2012. After being notified of these complaints the applicant wrote to the respondent’s Chief Executive Officer (the CEO) Mr Robert Jarvis on 4 February 2012 complaining about Mr McCracken and the manner in which two social functions were conducted. On 6 February 2012 Mr Jarvis told the applicant that an investigation would take place into the issues he had raised. After receiving this response the applicant sent another email to Mr Jarvis on 7 February 2012 containing more complaints about Mr McCracken. On 9 February 2012 Mr Jarvis invited the applicant to respond to the grievances lodged against him by Mr McCracken and he did so by email dated 12 February 2012. 3 On 23 February 2012 Mr Jarvis sent the applicant a memorandum requiring him to attend a meeting on 28 February 2012 to discuss what he described as the applicant’s unacceptable and disrespectful communication contained in the emails he sent to Mr Jarvis on 4, 7 and 12 February 2012. After receiving this memorandum the applicant emailed copies of emails he sent to Mr Jarvis on 4, 12 and 23 February 2012 to the respondent’s Councillors on 24 February 2012. 4 At the meeting held on 28 February 2012 Mr Jarvis terminated the applicant because he had emailed his grievances and complaints to Councillors contrary to the respondent’s Employee Induction Manual. The emails he had sent Mr Jarvis also contained unacceptable and disrespectful statements about colleagues and constituted insubordination towards Mr Jarvis. 5 The applicant complains that he was unfairly terminated. The applicant maintains that it was appropriate to alert Councillors to important issues such as racism and bigotry at the Town of Bassendean. The applicant also argues that he was terminated because he made complaints about other employees which the respondent deliberately did not properly investigate. The applicant’s emails to Mr Jarvis 6 The applicant made the following claims and statements in his email to Mr Jarvis dated 4 February 2012: • Mr McCracken should attend a communication and anger management course. • During an incident when the applicant sought to obtain personal safety equipment Mr McCracken said to him ‘what the [f***] are [you] doing here?’. When he told him that he had come to get a quote for safety equipment he was told very rudely ‘that was why he was there and that, that (sic) was his job so [f***] off back to work’. • He complained about Mr McCracken’s sarcastic tone every time he attended the workshop and referred to him as a ‘complete jerk’. • He referred to Mr McCracken’s ‘smart-arse attitude’ during another incident. • He claimed Mr McCracken yelled at him during another incident and told him that he had ‘[f***]ed the chipper brakes up and melted them’. After trying to settle him down, he snapped and he stated that he gave him back exactly what he deserved. The applicant stated that he was waiting for him to throw a punch at him and if this happened he was under no illusion that Mr McCracken ‘would’ve been going to hospital’ and that he had previously attacked other employees. The applicant said ‘I don’t go to boxing twice a week to eat candy’. • The applicant disputed Mr McCracken’s comments to the applicant’s supervisor Mr Mark Armstrong that Mr McCracken had worked out problems with other employees and come to an understanding and stated ‘[what] a load of shit. This person is delusional’. • The applicant referred to an alleged assault by Mr McCracken on an employee called Max which occurred when he was not employed by the respondent. The applicant stated that this incident was discussed at a managers meeting and nothing was done about it. He then made reference to Mr McCracken by saying ‘[why] is this man such a protected species?’. • The applicant referred to Mr McCracken having a part time job elsewhere and regularly using one of the respondent’s vehicles to commute to this job. He referred to Mr McCracken coming straight to work after completing his other job and to Mr McCracken being ‘tired, grumpy and nasty’ and he claimed this was a health and safety issue. • The applicant described Mr McCracken as ‘a pathetic person’. • The applicant stated that Mr McCracken only allows the purchase of new machinery if ‘you are a mate of his’. • The applicant stated that every repair taken to Mr McCracken is ‘a major problem with lashings of cheap sarcasm for his sick ego’. • The applicant said [w]hy don’t you sack the prick [Mr McCracken] and get somebody who wants to do the job with no fuss? Bill would be the biggest whinger and moaner about work I’ve ever encountered. He is one of the reasons why you have such a high staff turnover … The Town preaches about bullying and yet here is a perfect example waiting to be swept under the carpet again. • The applicant stated that he would never have written this complaint if Mr McCracken had not emailed lies about him and tried to ‘manipulate this situation by turning it around’. • The applicant wanted to know when he could book his car in for a service from Mr McCracken’s workshop as others do. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 35 • The applicant stated that the 2011 Christmas party was ‘mis-planned’ and was insulting to asset services workers as they were told the party started at 1.00 pm but everyone else had been there since 12.00 pm. The applicant stated that this was ‘a despicable mistake’ and whoever was behind this should be ‘ashamed of themselves’. • He stated that asset services employees are not allowed full strength beer at functions but at a recent training session in the main office full strength beer, wine and spirits were available. He stated ‘it’s good for the goose but not for the gander. Talk about double standards’. • He added the following at the end of his email: P.S. You owe me 4 hours off, as my typing and letter skills are limited and that’s how long it has taken me to write this letter on my rostered day off. I have much more important things to do than wasting my time on this bloody Idiot who has the luxury of sending his lies and deceit in company time. 7 On 6 February 2012 Mr Jarvis responded to this email and he told the applicant that his allegations would be investigated as they were serious and that some may need to be referred to other agencies for investigation. He refuted the applicant’s claims about the timing of the Christmas party and the use of the bar in the administration building. 8 In the applicant’s second email dated 7 February 2012 he thanked Mr Jarvis for his quick response and he apologised for his comments about the Christmas function. The applicant then referred to Mr McCracken saying to another employee who is Muslim that he needed to buy a camel when his mower broke down and the applicant stated that Mr McCracken has a problem with immigrants. He was surprised that Mr McCracken was still working for the respondent given its ‘racial policies and violence in the workplace policies’. 9 On 12 February 2012 the applicant wrote to Mr Jarvis in response to a letter setting out Mr McCracken’s complaints against him. These complaints were as follows: 1. Bill McCracken has stated that on the 1/2/12 you were ill-mannered and impudent towards him when he asked the whereabouts of the ignition key. Bill McCracken has also stated he is concerned in regards to you not following the unserviceable equipment reporting procedure. 2. Bill McCracken has stated that on the 2/2/12 that it had been brought to his attention that you were observed boasting to peers of ‘serving it up to the Workshop Supervisor’ in regards to the above matter and that you were hoping that this would elicit a response from Bill McCracken which would result in disciplinary action being taken against him leading to possible termination. In response the applicant made the following claims and statements: • The applicant claimed this letter was undated which was untrue. • The applicant described Mr McCracken’s allegation that he was ill mannered and impudent as pathetic. • The applicant stated that when someone spoke to Mr McCracken about something the applicant said to another employee this person must be a ‘snivelling shit stirrer’ and he stated that he was hoping that the respondent would sack Mr McCracken. He also stated that Mr McCracken’s complaints against him were ‘pretty pathetic’. • The applicant referred to a private car being serviced by Mr McCracken and a boat being at the workshop. The applicant referred to Mr McCracken being seen working on another employee’s camper van and on keg/beer accessories on the lathe and he claimed that Mr McCracken lets this ‘enterprise’ go on. He also stated that these activities were well known by yard management. • The applicant stated that even though the allegations against him were false he understood why the respondent had extended his probation. However he felt he would be unfairly dismissed because of Mr McCracken’s ‘pathetic complaint’ and he stated that ‘the management don’t seem to like these instances pointed out to them’. • The applicant stated that his allegations about Mr McCracken punching another employee in the face were true and if the respondent chose not to dismiss Mr McCracken then the respondent could not sack anyone else for these activities in the future. • The applicant referred to a meeting he had with Mr Jarvis on 8 February 2012 in front of the administration building when he told him that the applicant’s reply to his email ‘smacked of cynicism’. The applicant could tell that Mr Jarvis was not very happy meeting him and he then questioned why Mr Jarvis responded about alcohol use and his claims about the Christmas party when there were other much more important issues to deal with. • The applicant referred to Mr Jarvis not appreciating complaints being made about abuse, violence, racism, bigotry and harassment and he stated that he knew he would be dismissed at the end of his ‘impartial investigation’. • The applicant stated that Mr Jarvis’ ‘nasty little outburst’ and another manager’s cold manner towards him left him shocked and with little confidence in Mr Jarvis’ management. • The applicant wanted to know why Mr McCracken opened the applicant’s locker when it was unlocked. When he approached Mr McCracken about this he claimed that he told him he had been looking for a spare locker for another employee. Maybe it was a genuine mistake but he had his suspicions. • The applicant questioned whether Mr McCracken had declared his secondary employment and relied on the respondent’s Code of Conduct in this regard. • The applicant referred to a comment made about his wife by another employee Mr Robert Webb when he previously worked for the respondent and he stated it was disgusting and unbelievable. He then stated: 36 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. I don’t mind him attacking me personally but leave my [f***]ing family out of his nasty little quips. I dealt with this matter in my own way, but take my word for it Bob it’s better to talk about it than bottle it up and later explode. This event was over a year ago now so it’s not worth pursuing but I now wish I had of. • He stated that this same employee had a bad habit of blaming others for his mistakes and the previous week he hit a children’s school bus when driving one of the respondent’s vehicles. • The applicant stated that Mr McCracken’s allegations against him were trivial, he had done nothing wrong, he had been abused twice by Mr McCracken in front of a witness, Mr McCracken hated fixing broken equipment and he stated that after Mr McCracken had abused him he lost his temper and retaliated. Mr McCracken then went to ‘HR with a pathetic complaint about him’. The applicant referred to Mr McCracken as ‘a sooky buba (sic)’ and stated ‘[u]nfortunately for Bill if you come at me I will return the favour 10 fold and throw everything at you including the kitchen sink, so you better be squeaky clean and Bill is far from that’. • The applicant finished by stating: Good luck with your investigation Bob. And try not to focus on the alcohol too much as it was only an observation. I hope it is fair and impartial investigation but I have my doubts and I can’t but wonder how many lies will be told to you in your investigation as many personal (sic) duck for cover. I further require a copy of my allegations sent to Bill by you Bob, as I would like to make sure that nothing has been omitted as to be quite honest with you Bob I don’t trust the Town of Bassendean management (Excepting (sic) Mark Armstrong). I believe that under the FREEDOM OF INFORMATION ACT, I’m entitled to this information and will be applying for it. 10 The applicant stated the following in his email to Mr Jarvis dated 23 February 2012 (verbatim): Thank you for your letter dated 23rd February 2012. I look forward to the formal meeting on this date, but can't help but wonder Bob whether you mean to discuss my UNACCEPTABLE AND DISRESPECTFUL COMMUNCIATION, or to dismiss me from your workforce for bringing to your attention in an acceptable and honest way through my communcation to both you and Renae the racial, voilence, and abuse in your workplace. I would further like to point out to you that The Town Of Bassendean hold regular meetings in the Admin building on BULLYING IN THE WORKPLACE, which is my main greivance against Bill McCraken. The Town Of Bassendean has a major proplem with Bullying, abuse, and violence in the workplace and I can't help but wonder Bob if your just going to sweep it under the carpet. What is the point of Renae holding these meetings and incouraging the workforce to report these matters as I have done only to be dismissed for bringing it too your attention Bob. It actually dosn't matter how I correspond it to you Bob but that it is corresponded to you so you can act and lead by stamping it out in the workforce instead of just concentrating on how you can best get rid of me. But then again maybe thats·what would be convienent for you. Nobody reporting such matters and you can go through life oblivious to whats right under your nose. It won't exactly make the men feel very confident in reporting these matters to your Human Resourses in the future, Bob, if you dismiss the last person who reported the matter to you and bought it to your attention. The men would be extremely nervous. You may wish to cancel all future meetings of this subject as the workforce would only laugh at any such future meetings Bob. (As they do now anyway) To be quite honest with you Bob I would've thought you'd wish to discuss what you intend to do with your violent and abusive Supervisor instead of my blunt but honest communication to you. I suspected that your investigation· would be very one sided and as the men return from your interview room it has occured to me that your short questions for them are minupulated to reflect what you want to hear. So much for a fair and impartial investigation Bob. And yes the men will always come back and talk as its human nature, just as the few supporters of Bill McCracken run back and tell him everything you say. I could give you a list of questions that you should be asking instead of dancing around the subject but I suspect I will be asking those myself in the future. One example for you Bob would go simply like this, AJ have you ever been called a terrorist by Bill or anybody else in the workforce? There are many other questions that should have been asked that have not been asked that address the points in my letters to you. That simple Bob, cut to the chase and you would've got an honest answer instead of beating around the bush! Finally Bob and Renae, just a little tid bit for the weekend for you. Sabash had trouble starting the Toro motor mower the other day so Bill fired it up with a jumper start. When Sabash got the machine to a park it wouldn't fire up so he took it back to Bill, who promptly put the jumper leads on the wrong polarity, which I believe then burnt out the wiring. He complains constantly about us wreaking machinery, so I couldn't help but laugh. Wonder how much that cost the council? Don't worry he will just blame Sabash. I'm looking forward to the23rd Bob, see you then. (Exhibit R1 document 21) Submissions Applicant 11 The applicant argues that his termination was unfair for a number of reasons. The respondent failed to advise him of the correct procedures for lodging a grievance thus denying him procedural fairness, the respondent only followed policies and procedures when it suited them, the respondent does not take racism seriously, the respondent breached the dispute settlement procedure in the enterprise agreement given the manner it investigated his complaints and the respondent did not use its workplace bullying procedures to deal with the applicant’s complaints. The applicant also claims he was disadvantaged and victimised because he blew the whistle on other employees. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 37 12 The applicant submitted that Mr Jarvis falsified one email (Exhibit R1 document 13 which is an email from Mr Jarvis to Mr Stewert-Dawkins and Ms Renae Galambos dated 8 February 2012). The applicant also submitted that Mr Jarvis was deceptive when giving evidence. The applicant stated that Mr Max George lied to Mr Jarvis during the investigation, the investigation was biased because witnesses who gave evidence in support of his claims were not asked as many questions as employees who did not support him and the investigation was unfair, one sided and was designed to terminate the applicant. Questions were not asked about the assault he raised and Mr Webb and Mr McCracken made inappropriate comments about him which were not investigated. The respondent did not investigate several examples of inappropriate activities occurring such as servicing private cars during work time and work being conducted on a boat at the respondent’s work shop. The applicant stated that during his employment he was intimidated, bullied, harassed, victimised, abused, racially slurred, isolated, offended and ignored and this behaviour was continued by Mr Jarvis, Ms Galambos and Mr Ken Cardy. 13 The applicant argued that as his complaints related to bullying, harassment, bigotry, violence, abuse and racial slurs his complaints were not inappropriate and it should also not have mattered how he reported these issues. The applicant argues that the problems at the Town of Bassendean were unique and needed to be brought to the attention of Councillors given the CEO and Ms Galambos were not dealing with the issues and were ‘sweeping [his] allegations under the carpet’. Respondent 14 The respondent submits that it had good reason to terminate the applicant because of his unacceptable and disrespectful communications as well as his inappropriate comments about colleagues established that he was unsuitable for ongoing employment with the respondent. 15 The applicant breached the respondent’s Code of Conduct which requires that employees treat others with respect and fairness, when he sent his emails to Mr Jarvis. The applicant also breached the terms of the Employee Induction Manual which provides that all business communications with Councillors be through the CEO. When he did so he breached his duty of fidelity to the respondent and destroyed or seriously damaged the relationship of trust and confidence between him and the respondent. The respondent also argues that when the applicant made damaging claims against Mr Jarvis in his email to Councillors this amounted to insubordination. 16 The respondent submits that the applicant’s email to Councillors and his attempt to influence a workplace investigation which was not yet finished and his attempt to undermine Mr Jarvis was incompatible with his duties to the respondent and was destructive of the confidence necessary to sustain the employment relationship. When the applicant referred to Mr Jarvis running a ‘kangaroo court’ and he questioned the integrity of the ongoing investigation he irreparably damaged the mutual trust and confidence required in every employment relationship. 17 The respondent disputes the applicant’s claim that he was dismissed because he made complaints against colleagues and the respondent argues that the investigation into his allegations was not relevant to his dismissal. If the investigation is to be taken into account the respondent argues it was conducted in a reasonable and fair manner, it was comprehensive and sufficient to ascertain an outcome and the applicant was going to be interviewed after the investigation finished but this did not take place because he was terminated. 18 The respondent maintains that the applicant was afforded procedural fairness during the process of his termination. Mr Jarvis expressed his disappointment about the nature of the applicant’s communications during a discussion with him on 8 February 2012 and the applicant was notified in writing on 23 February 2012 that the respondent wanted to discuss his unacceptable and disrespectful comments in the emails he sent to Mr Jarvis at the meeting to be held on 28 February 2012. At this meeting the applicant had the opportunity to respond to this allegation as well as the allegation that his email to Councillors was unacceptable, disrespectful and insubordinate and in response the applicant was unrepentant about his communications to Mr Jarvis and Councillors. Consideration Legal Principles 19 The test for determining whether a dismissal is unfair or not is well settled. The question is whether the employer acted harshly, unfairly or oppressively in dismissing the applicant as outlined by the Industrial Appeal Court in Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385. The onus is on the applicant to establish that the dismissal was, in all the circumstances, unfair. Whether the right of the employer to terminate the employment has been exercised so harshly or oppressively or unfairly against the applicant as to amount to an abuse of the right needs to be determined. A dismissal for a valid reason within the meaning of the Act may still be unfair if, for example, it is effected in a manner which is unfair. However, terminating an employment contract in a manner which is procedurally irregular may not of itself mean the dismissal is unfair (see Shire of Esperance v Mouritz (1991) 71 WAIG 891 and Byrne v Australian Airlines (1995) 61 IR 32). In Shire of Esperance v Mouritz, Kennedy J observed that unfair procedures adopted by an employer when dismissing an employee are only one element that needs to be considered when determining whether a dismissal was harsh or unjust. 20 The law relating to unfair dismissals when an employee is on probation was considered by the Full Bench in East v Picton Press Pty Ltd (2001) 81 WAIG 1367. In this decision, the President set out the following relevant principles [39]: 1. During the probationary period the employer retains the right to see whether he/she wants the employee or not in his/her employment. 2. Probation is an extension of the selection process, a period of learning and a time for attention, assessment and adjustment to standards of performance and conduct. 3. A probationary employee knows that he/she is on trial and that he/she must establish his/her suitability for the post and the employer must give the employee a proper opportunity to prove him/herself, but he/she reserves the right to terminate the employee with the appropriate notice provided there is good reason to do so. 38 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. 4. An employee on probation can expect to be counselled and informed that she/he is not meeting the required standards of performance, to be given reasonable training in this respect, and to be warned of the possible consequences of a failure to improve. 5. A probationary employee can seek reinstatement, but an employer is entitled to terminate a probationary employee more easily. Length of service is not a factor generally, because probationary employment is for a finite period and, in that period, assessment, training and acquisition of skills and demonstration of ability can occur. Any genuine question of compatibility between employer, employee and other employees can also be assessed. 6. Probation is not a licence for harsh, oppressive, capricious, arbitrary or unfair treatment of a probationer. Was the applicant unfairly terminated? 21 A period of probation is an opportunity to assess whether an employee’s conduct reflects a compatible employment relationship which can be sustained in the long term. I find that the applicant’s conduct during his probationary period was incompatible with behaviour required of an employee in an ongoing employment relationship. I find that during the applicant’s employment with the respondent the applicant breached the requirement on him to treat colleagues and his employer fairly and in a respectful manner and I find that the applicant’s unwarranted attacks on his CEO Mr Jarvis, destroyed the necessary trust and confidence required between an employee and employer. Given this conduct and when taking into account equity and fairness and the applicant being on probation I find that the respondent had good reason to terminate the applicant. 22 The applicant conceded that he forwarded copies of three emails he sent to Mr Jarvis dated 4, 12 and 23 February 2012 to Councillors. The content of these emails has already been outlined in this decision. The applicant stated the following to Councillors when he sent these emails: To Whom It May Concern, The following correspondence that follows is between Bob Jarvis, and David Hards who are both employees of the Town of Bassendean. It concerns violence, bigotry, abuse, harassment and racial discrimination which is prevalent at the Town of Bassendean. I don’t know whether you Councillors are aware of these problems and I believe you have a right to know the Kangaroo court that Bob Jarvis is running at the Town of Bassendean as he “investigates” these allegations. My letters to him are blunt which unfortunately is just my personality. I have been summoned to meet with him on Tuesday, where I am under no illusion I will be dismissed for bringing this problem to his and HR’s attention. … To Whom It May Concern, You will have to ask Bob Jarvis for his replies to these letters, they are very short and uninformative. There is no doubt in my mind by bring (sic) these problems to the attention of HR and Bob Jarvis that I will be dismissed from the workforce, whereas Bill McCracken who is the main problem at the council depot will still be employed there in the future. Disgraceful! (Exhibit R1 document 23) 23 The respondent’s Employee Induction Manual, which the applicant conceded was given to him at his induction on or about 2 February 2012, requires that all business communications with Councillors must be through the CEO. I find that the applicant committed a breach of the requirement not to contact Councillors directly about work related issues when he forwarded the correspondence he sent to Mr Jarvis to Councillors on 24 February 2012. Furthermore, I find that this breach was serious as the applicant made unwarranted and untrue accusations about Mr Jarvis and his capacity as a CEO to Councillors. I find that the applicant sent the emails to Councillors in an attempt to inappropriately undermine and indirectly pressure Mr Jarvis with respect to the conduct and outcome of his investigation into the applicant’s grievances and complaints and the applicant continuing as an employee and I find that the applicant’s negative comments about Mr Jarvis constituted insubordination as there was no basis for him to conclude that Mr Jarvis was conducting a ‘Kangaroo court’ when investigating his allegations. Nor did the applicant provide any evidence to Councillors confirming that a decision had already been made to terminate him as at 24 February 2012, as claimed by the applicant. I also note that when the applicant forwarded his grievances to Councillors he neglected to include Mr Jarvis’ responses to his emails confirming that his complaints were being taken seriously which in my view was deliberately done to further undermine Mr Jarvis. 24 I find that the applicant breached the respondent’s Code of Conduct, which requires that employees treat colleagues with respect and fairness, when he wrote derogatory, unwarranted and unnecessary comments about colleagues, including Mr Jarvis, in the four emails he sent Mr Jarvis. The language used by the applicant and claims made by him when making his complaints have already been outlined in this decision. I find that the respondent had good reason to regard the content and tone of the applicant’s four emails to Mr Jarvis as being inappropriate and disrespectful. I find that the applicant used offensive language and made derogatory comments about Mr McCracken and I find that some of his comments about Mr McCracken were confrontational and indicated hostility towards another employee which cannot be tolerated at a workplace. It was also the case that the applicant raised matters that had not been complained about by the employee concerned and I find this to be unfair to those employees. I find that the applicant could have raised his grievances using language that was not offensive, abusive or judgemental, but he chose not to do so. In conclusion I find that the nature of the applicant’s claims and the language he used at times when making his complaints was inconsistent with the necessary and appropriate conduct and attitude required of an employee towards colleagues and his or her employer. Furthermore, I reject the applicant’s complaint that the respondent did not give him a copy of the Code of Conduct and he was therefore unaware of the content of this code as he referred to Mr McCracken breaching the Code of Conduct in his email to Mr Jarvis on 12 February 2012. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 39 25 I reject the applicant’s complaint that the respondent did not tell him that the language he used in his emails was inappropriate. As I accept Mr Jarvis’ evidence, who in my view gave his evidence honestly and to the best of his recollection, I find that during a discussion Mr Jarvis had with the applicant on 8 February 2012 he told the applicant that the emails he had sent him contained comments which were unacceptable and disrespectful. Furthermore, when the applicant was notified in writing on 23 February 2012 that the respondent wanted to have a meeting with him on 28 February 2012 he was told that it was to discuss his unacceptable and disrespectful communications. The applicant was therefore put on notice about the inappropriate manner in which he had communicated his grievances and that this issue was to be discussed at the meeting held on 28 February 2012. 26 I find that during the meeting held on 28 February 2012 the applicant conceded that he had sent the emails to Councillors and he did not resile from doing so, nor did he show any remorse for his behaviour. Given his criticism of the manner in which Mr Jarvis was conducting the investigation into his complaints, which in my view constituted insubordination, and having raised this with Councillors and when taking into account the derogatory, inappropriate, unnecessary and disrespectful comments the applicant made about colleagues I find that at this point it was clear to the respondent that the relationship between the applicant and the respondent had broken down such that the respondent had good reason to terminate the applicant. 27 I accept that the applicant was unaware prior to the meeting held on 28 February 2012 that his termination was to be discussed and given effect. However I find that the original purpose of the meeting, that is to discuss the inappropriate language and unacceptable comments contained in the applicant’s emails to Mr Jarvis, was overtaken by the applicant inappropriately contacting Councillors about his grievances and making derogatory comments about Mr Jarvis. As the respondent only found out about this just prior to the meeting taking place it therefore did not have the opportunity to put the applicant on notice that his termination was to be discussed at this meeting. It was also the case that the applicant was offered a break during the meeting to consider his response to the respondent’s intention to terminate him. In the circumstances I find that the timing of the meeting where the applicant was terminated was of the applicant’s own making and he was not therefore disadvantaged by not being given notice of the respondent’s intention to terminate him prior to this meeting. If I am wrong in reaching the conclusion that the applicant was terminated in a reasonable and fair manner, which I do not concede, I find that any denial of procedural fairness when the applicant was terminated did not invalidate the respondent’s decision to terminate the applicant as he had committed misconduct serious enough to warrant termination. The Investigation into the applicant’s grievances 28 I reject the applicant’s claim that he was terminated because he made complaints about colleagues and that the complaints he made in his emails were not properly investigated. I also reject the applicant’s claim that the investigation was a ‘Kangaroo court’ and that the respondent never intended to properly deal with his grievances nor seriously review the issues he had raised. 29 I find that the respondent conducted the investigation in an appropriate manner. After receiving the applicant’s first grievance on 4 February 2012 Mr Jarvis indicated to the applicant that he would be investigating this matter. Mr Jarvis and Ms Galambos, the respondent’s Human Resources Coordinator, interviewed a number of employees about the applicant’s grievances. The following employees were interviewed: • Mr Gary Dewar – Building Facilities Supervisor • Mr Paul Mildwaters – Parks Labourer • Mr Max George – Parks Labourer • Mr Mark Armstrong – Parks Supervisor • Mr Anthony Loo – Indigenous Trainee • Mr Alfred Niedelziek – Parks Labourer • Mr Ken Cardy – Manager Asset Services • Mr AJ Laurie – Parks Labourer • Mr Subhash Kathiriya – Parks Labourer • Mr Wayne Hartley – Reticulation Fitter • Mr Robert Webb – Parks Labourer Two employees were not interviewed but I accept that it was not possible at the time to do so as one employee was on leave and the wife of the other employee had recently passed away. 30 I find that the investigation conducted by Mr Jarvis and Ms Galambos into the applicant’s grievances was thorough and properly dealt with matters and issues raised by the applicant. I find that after considering the information given by employees at these interviews the respondent decided that a number of measures and guidelines be put in place to improve the respondent’s procedures. This included procedures relating to reporting faulty equipment, secondary employment, the use of council equipment during breaks and communications between employees. The investigation also found that the applicant made a number of unsubstantiated allegations and that a number of employees who had been named by the applicant in some of his grievances were unaware that he was raising these incidents. The investigation also concluded that some employees who were interviewed gave different versions of events from what the applicant had described in his emails. The investigation also found that some of the incidents involving the applicant had occurred as he had claimed. The report referred to the applicant’s ‘inappropriate and disrespectful comments’ in his emails and that this was unacceptable, disrespectful, cynical, humiliating and degrading of colleagues. On 8 March 2012 Mr Jarvis wrote to the applicant detailing the recommendations arising out of the investigation into his grievances and those made by Mr McCracken and the applicant was also advised that 40 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. the recommendations would be ‘actioned and implemented by the Town in order to resolve and conclude these issues’. The applicant claims that he was treated unfairly when he was not interviewed as part of the investigation however I find that the respondent had every intention of discussing the outcome of the investigation with the applicant once the investigation was completed but this was overtaken by the applicant’s email to Councillors and his termination on 28 February 2012. 31 During the hearing the applicant gave evidence that when he and Mr Jarvis met in front of the administration office on 8 February 2012 Mr Jarvis said words to the effect to him ‘who the [f***] did I think I was writing such letters to him’ (t28). The applicant relies on this exchange in support of his claim that his grievances were never going to be properly investigated and the respondent was going to ‘sweep it under the carpet’ (t28). Mr Jarvis agreed that he had a discussion with the applicant on that date but he denies using these words. After carefully observing both witnesses whilst giving their evidence with respect to what was said at this meeting and other issues I prefer the evidence of Mr Jarvis that he did not speak to the applicant in the manner claimed by him. I accept the evidence of Mr Jarvis that he would not talk to an employee in the manner claimed by the applicant and in reaching this conclusion I take into account the reasoned tone of Mr Jarvis’ emails to the applicant. I also note that the applicant does not resile from making a complaint if somebody makes comments that he believes are inappropriate, such as swearing at him, and he did not do this after this conversation with Mr Jarvis. Additional matters 32 The applicant complained that he was disadvantaged when the respondent failed to use the proper processes and procedures to deal with his complaints. In my view the process adopted by the respondent in response to the applicant’s complaints was of the applicant’s own making as he chose to raise his complaints directly with Mr Jarvis who then had a duty to respond to and investigate the applicant’s complaints. 33 In his submissions the applicant made serious accusations questioning the integrity of Mr Jarvis, Mr Cardy and Ms Galambos and the applicant did not provide any evidence or documentation in support of these claims both during and after the hearing. I find that it was inappropriate of the applicant to make these assertions and I find that as there was no evidence in support of his claims this reflected a vindictive and self-serving pattern of behaviour on the part of the applicant. Mark Armstrong 34 Mr Armstrong gave evidence on behalf of the applicant. The issue of whether Mr Armstrong had been disadvantaged or subject to disciplinary action for doing so was raised during the hearing and the respondent, the applicant and Mr Armstrong made submissions on this issue after the hearing. The respondent strongly denied that Mr Armstrong had been disadvantaged or subject to disciplinary action for giving evidence on behalf of the applicant in these proceedings notwithstanding that a formal warning was given to Mr Armstrong on 4 April 2012 and the respondent claims that this warning was given to him prior to the applicant indicating he was calling Mr Armstrong as a witness. The respondent provided a summary of what took place at the performance management meeting held with Mr Armstrong on 4 April 2012 whereby the respondent detailed what it claimed to be his ‘unacceptable and unprofessional communication’ and in response Mr Armstrong provided a summary of what he maintained was discussed at this meeting. The applicant claims the respondent knew when he was terminated on 28 February 2012 that he would contest his termination and that Mr Armstrong would give evidence on his behalf. After reading the documentation provided by the parties and Mr Armstrong I am satisfied and I find that the respondent’s disciplinary action against Mr Armstrong does not relate to him giving evidence in these proceedings. However, so that it is clear that Mr Armstrong has not or will not suffer any disadvantage for giving evidence on behalf of the applicant I will order that a copy of these reasons for decision and the correspondence generated by the respondent, the applicant and Mr Armstrong with respect to any disadvantage Mr Armstrong may have suffered by giving evidence on behalf of the applicant be placed on Mr Armstrong’s personnel file. 35 An order will now issue dismissing this application. 2012 WAIRC 01112 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DAVID HARDS APPLICANT -v- TOWN OF BASSENDEAN RESPONDENT CORAM COMMISSIONER J L HARRISON DATE WEDNESDAY, 19 DECEMBER 2012 FILE NO/S U 50 OF 2012 CITATION NO. 2012 WAIRC 01112 Result Dismissed Representation Applicant In person Respondent Mr S Roffey (as agent) 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 41 Order HAVING HEARD Mr D Hards on his own behalf and Mr S Roffey as agent on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders – 1. THAT a copy of the Reasons for Decision in this matter and the correspondence generated by the respondent, the applicant and Mr Mark Armstrong with respect to any disadvantage Mr Armstrong may have suffered by giving evidence on behalf of the applicant, be placed on Mr Armstrong’s personnel file. 2. THAT this application otherwise be and is hereby dismissed. (Sgd.) J L HARRISON, [L.S.] Commissioner. 2013 WAIRC 00005 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES RICHARD SHANE HAY APPLICANT -v- ROY HILL STATION PTY LTD RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE WEDNESDAY, 2 JANUARY 2013 FILE NO/S B 143 OF 2012 CITATION NO. 2013 WAIRC 00005 Result Application dismissed Representation Applicant No appearance Respondent No appearance Order WHEREAS an application was filed in the Commission pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979; AND WHEREAS this matter was listed for hearing on 22 November 2012 for the applicant to show cause why his application should not be dismissed; AND WHEREAS the applicant failed to attend the hearing; AND WHEREAS the Commission wrote to the applicant requesting he advise whether or not he wished to proceed with his application; AND WHEREAS the applicant failed to contact the Commission; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders – THAT the application be, and is hereby dismissed for want of prosecution. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2012 WAIRC 01063 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION