Treen v Allwater - Adelaide Services Alliance [2016] FWC 2737 (2 May 2016) [2016] FWC 2737 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Michael Treen v Adelaide Services Alliance T/A Allwater JV (U2015/15625 COMMISSIONER PLATT ADELAIDE, 2 MAY 2016 Application for relief from unfair dismissal - whether valid reason - alleged misconduct - whether termination harsh unjust or unreasonable - application granted – reinstatement 1. Summary [1] Mr Treen has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Adelaide Services Alliance trading as Allwater JV (Allwater). [2] Mr Treen commenced employment with a predecessor to Allwater in 2008. Mr Treen’s role as Jetrodder was covered by an enterprise agreement. At the time of the dismissal the enterprise agreement was the subject of formal bargaining negotiations and the taking of protected industrial action. [3] On 8 December 2015, some Allwater employees took protected industrial action. Mr Treen left a message on the mobile phone of another employee who he believed not to have participated in the protected industrial action which said “Hi mate, just wondering if you are working. If you are, you’re a fucking scab.” [4] A complaint was made and Allwater investigated the matter. No issues of process or procedural fairness arise. [5] On 15 December 2015, Mr Treen was summarily dismissed for this misconduct. [6] I have found that Mr Treen’s conduct was a valid reason to terminate Mr Treen’s employment. However, the dismissal was a disproportionate response to Mr Treen’s conduct which was as out of character. Mr Treen’s good service and work performance did not appear to be considered, and the disciplinary outcome appears inconsistent with other similar matters. On this basis I have found that the dismissal was harsh, unjust or unreasonable. [7] The Manager who dismissed Mr Treen, described him as a reliable, honest and hardworking employee. He was confident that there would not be a repeat of this behaviour. On that basis I find that reinstatement is an appropriate remedy. [8] My reasons for this decision are detailed below. 2. Overview [9] Mr Treen contended that his dismissal was unfair because: ● the conduct in the absence of any other adverse interaction with the target employee, and in light of the prompt apology, did not represent a valid reason for dismissal; ● the summary dismissal was harsh, unjust or unreasonable by virtue of; Mr Treen’s almost unblemished 7 years of service, his age (50), skill base and limited prospects of finding alternative work; The sanction was disproportionate to the conduct; Allwater applied an outcome which is inconsistent with previous matters of a similar nature. [10] Mr Treen sought reinstatement. [11] Allwater contended that Mr Treen’s dismissal was not harsh, unjust or unreasonable as; ● the conduct was in breach of the Equity and Diversity Policy and the House Rules; ● Mr Treen was aware of and had attended a training course in respect of those policies in April 2014; ● the conduct was intended to offend, humiliate or intimidate the employee to whom it was directed; ● the conduct was a gross departure from the standard of behaviour required and constituted a valid reason for his dismissal; ● the dismissal was not harsh, unjust or unreasonable. [12] As to remedy, Allwater contended that there had been a breakdown in trust and confidence between the parties and reinstatement should not be considered. Any remedy should be restricted to monetary compensation. 3. Factual matrix [13] There is little dispute over the evidence. [14] Mr Treen was employed in 2008 and prior to his dismissal was engaged as a Jetrodder, clearing sewer mains, and working in a crew of two. [15] Mr Treen was the subject of one minor disciplinary matter approximately 6 years ago (which was not relied upon by Allwater in determining the disciplinary outcome). [16] Mr Treen describes himself as a person who “speaks his mind” and believes he is well regarded by Allwater and his fellow employees. [17] The work performed by Mr Treen is covered by an enterprise agreement which at the time of the dismissal was the subject of negotiations and protected industrial action. [18] On 8 December 2015, Mr Treen engaged in a stoppage of work which involved attending a rally at Victoria Square, Adelaide until 1.00 pm. The turnout to this rally was less than the rally held a week or two earlier. Mr Treen was disappointed with the turnout. [19] At about 1.30 pm on 8 December 2015, whilst travelling home from the rally in a car with others, Mr Treen became aware that an Allwater employee was observed working during the stoppage of work. Mr Treen did not know the employee other than in passing. [20] At about 2.00 pm, whilst still in the car, Mr Treen obtained the phone number of the employee, rang him and left a message which said “Hi mate, just wondering if you are working. If you are, you’re a fucking scab.” [21] An audio copy of the message was tendered in evidence. Mr Treen contends that the message is in a conversational tone, Allwater argues that the message was designed to intimidate. I observed that Mr Treen has a strong accent and the word “fucking” was stressed. Other than that, the speech appears to be in a conversational tone. [22] The recipient of the message was not called to give evidence. The only evidence I have as to the impact of the message on the recipient is that he told another employee that he was “pissed off” and upset. There is no evidence before me that he felt threatened, or was intimidated by the message or that it would impact on any future decision by him to participate (or not) in protected industrial action. On the morning of 9 December 2015, Mr Treen sent a text message to the recipient apologising for the message he had left the day before. [23] The recipient subsequently reported the matter to Allwater. Mr Treen was advised by Allwater in writing later that day of the allegations, that his employment was at risk, and he would be interviewed on 11 December 2015. Mr Treen was suspended with pay pending the outcome of the investigation. [24] On Friday 11 December 2015, Mr Treen (in the presence of his Union representatives) was interviewed by Mr Lachlan Keller (Southern Networks Regional Manager). Mr Treen aadmitted leaving the message, apologised and accepted he had done the wrong thing. [25] On Tuesday 15 December 2015, Mr Keller terminated Mr Treen’s employment summarily and provided written reasons. Allwater considered Mr Treen’s behaviour to be inappropriate, intimidating, constituted bullying and harassment, breached both safety and equal opportunity obligations and the terms of his contract of employment. 4. Was the dismissal harsh, unjust or unreasonable? [26] Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: “(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant.” [27] The notification of valid reason, access to a support person, and opportunity to respond are not contested. Warnings relative to unsatisfactory performance, the size of the employers business and access to human resources support are not relevant in this case. I have considered each of the remaining factors below. Valid reason - s.387(a) [28] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd 1 which requires the reason for termination to be “sound, defensible or well founded.” [29] Mr Treen’s conduct in leaving the phone message was a single inappropriate act. [30] The singular nature of the conduct and the lack of evidence as to its impact, prevent it from being properly characterised as bullying and/or harassment. The conduct was grossly inappropriate and in breach of the spirit of Allwater’s House Rules. The law allows employees a choice as to their participation in protected industrial action and Mr Treen’s conduct flew in the face of that right. Whilst Mr Treen may have been disappointed at the message recipient’s failure to participate in the industrial action, and the reduced number of Allwater employees who attended the rally, the use of the word “scab” directed towards an employee is insulting, and made more so by the addition of the word “fucking” and the stress placed on that word. This view is consistent with Bryson J in Barloworld Coatings (Aust) Pty Ltd v Australian Liquor, Hospitality & Misc Worker’s Union, 2 where it was said the word [scab] has a well-known meaning in Australia….referring to a person who continues working during a strike; it is clearly and strongly an insult and has little value as an expression of a point of view”. [31] I find that Allwater had a valid reason to terminate Mr Treen’s employment. Other matters considered relevant - s.387(h) [32] Other than one prior disciplinary matter which was not relied upon by the employer, Mr Treen had an unblemished employment history. There is no evidence before me that Mr Treen sought to intimidate the message recipient, or that his conduct had that effect. [33] Allwater provided details of two prior disciplinary matters concerning other employees that it said was relevant to this matter. [34] The first related to an employee in 2011 who was alleged to have repeatedly sworn and cursed in a loud and aggressive manner in an office, directing the profanity towards a Manager and failing to follow a reasonable direction. That employee was given a final written warning. [35] The second matter arose from a work incident where a non-work related threatening and aggressive message was posted on the company noticeboard. The employee responsible received a written warning. [36] When considered against these examples the disciplinary outcome imposed on Mr Treen appears inconsistent. Conclusion [37] The Explanatory Memorandum to the Act 3 explains the approach of the Commission in considering the elements of s.387: “FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.” [38] In Byrne and Frew v Australian Airlines Pty Ltd , 4 the following observations made by McHugh and Gummow JJ are relevant to my conclusion: “It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, 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.” [39] The dismissal was a disproportionate response to Mr Treen’s conduct which was recognised by his Manager as out of character. Mr Treen’s good service and work performance did not appear to be considered and the disciplinary outcome appears inconsistent with other similar matters. Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Treen’s employment was harsh, unjust or unreasonable. 5. Remedy [40] The relevant provisions of Division 4 of Part 3-2 of the Act state: “ Division 4—Remedies for unfair dismissal 390 When the FWC may order remedy for unfair dismissal (1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if: (a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and (b) the person has been unfairly dismissed (see Division 3). (2) the FWC may make the order only if the person has made an application under section 394. (3) the FWC must not order the payment of compensation to the person unless: (a) the FWC is satisfied that reinstatement of the person is inappropriate; and (b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case. Note: Division 5 deals with procedural matters such as applications for remedies. [41] The prerequisites contained in ss.390(1) and (2) have been met in this case. [42] Allwater submitted that reinstatement should not be ordered as the employment relationship had broken down. The only evidence on that point before me is that of Mr Keller who described Mr Treen as a reliable, honest and hardworking employee and was confident that there would not be a repeat of this behaviour. I do not accept that the employment relationship is not recoverable. I consider that an order of reinstatement is appropriate in these circumstances. [43] Section 391(2) provides that the Commission may order that the continuity of service be maintained. I consider that such an order is appropriate in these circumstances. [44] Section 391(3) also provides that the Commission can order the restoration of lost wages. The nature of Mr Treen’s conduct is such that I decline to make such an order. [45] An Order ( PR579817 ) requiring that Mr Treen be reinstated to his previous position within 14 days, on terms and conditions not less favourable than those which applied before the termination of his employment, will be issued. This Order will provide for continuity of service. COMMISSIONER Appearances : Mr S Blewett (United Voice) on behalf of Mr Treen. Mr W Snow (of Counsel) on behalf of Allwater. Hearing details: 2016. Adelaide: April 11. 1 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373. 2 Barloworld Coatings (Aust) Pty Ltd v Australian Liquor, Hospitality & Misc Worker’s Union [2001] NSWSC 826 at paragraph 18. 3 Explanatory Memorandum to the Fair Work Bill 2008 . 4 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24. Printed by authority of the Commonwealth Government Printer <Price code C, PR579816>