WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2017 WAIRC 00235 CORAM :Commissioner D J Matthews HEARD : Monday, 5 December 2016, Tuesday, 6 December 2016, Wednesday, 7 December 2016, Monday, 6 February 2017, Tuesday, 7 February 2017, Wednesday, 8 February 2017 DELIVERED : wednesday, 26 APRIL 2017 FILE NO. : U 113 OF 2016, B 113 OF 2016 BETWEEN : Carlo Elio Grossetti Applicant AND City of Wanneroo (ABN 64 295 981 165) Respondent CatchWords : Industrial law (WA) - Termination of employment - Alleged harsh, oppressive and unfair dismissal - Dismissal occurred within period of probation - Dismissal not harsh, oppressive or unfair substantively or procedurally - Alleged denied contractual benefits - Termination complied with contract - No denial of contractual benefits Legislation : Industrial Relations Act 1979 Result : Application and claim dismissed Representation Applicant : In person Respondent : Mr W Keane of counsel Solicitors: Respondent : Squire Patton Boggs and later Hall & Wilcox Cases referred to in reasons: Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1 East Kimberly Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers (2000) 80 WAIG 3155 Hutchinson v Cable Sands (WA) Pty Ltd (1999) 79 WAIG 951 Peter Milford Weston v WA Property Lawyers (2015) 95 WAIG 1455 Case(s) also cited: Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635 Erica Jean Dimer v South West Aboriginal Medical Service Aboriginal Corporation (2004) 84 WAIG 2310 Franklin Isa v Cooks Construction Pty Ltd Civil, Mining and Plant Hire Contractors (2004) 84 WAIG 2648 J.A. Marjio v Fremantle Arts Centre Press. (1990) 70 WAIG 2559 Karine Lecaude v Trident Produce Pty Ltd (2003) 83 WAIG 1214 Nathan James Roberts v John Ryan owner of Metro Security Services (2003) 83 WAIG 1521 Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (2016) 96 WAIG 408 Vick Dimitriou v Energy World Corporation Ltd (2003) 83 WAIG 1195 Walter Alfred Edom v Vision Surveys Pty Ltd (2006) 86 WAIG 2608 Westheafer v Marriage Guidance Council of WA (1985) 65 WAIG 2311 === REASONS FOR DECISION === ¶1 On 26 April 2016 Mr Carlo Elio Grossetti commenced work with the respondent as its Manager, Community Safety and Emergency Management, having beaten a field comprising around 120 applicants. On 16 June 2016, less than two months later and during his probationary period, Mr Grossetti was dismissed from his employment. The case before me concerns what went wrong in that short period of time and whether the termination of Mr Grossetti’s employment was harsh, oppressive or unfair. ¶2 Mr Grossetti filed a detailed Notice of Application comprising 97 paragraphs and containing a blow by blow account of his employment. The points of friction between Mr Grossetti and the respondent emerge from the Notice as does Mr Grossetti’s overarching view that, if the points of friction are properly analysed and understood, his dismissal was “disproportionate.” It also sets out details of Mr Grossetti’s contention that his dismissal was procedurally flawed. ¶3 The respondent, on 9 August 2016, filed a Notice of Answer which contends that, in the context that the dismissal occurred within Mr Grossetti’s probationary period, it was neither substantively nor procedurally unfair. ¶4 The hearing took place over six days and all of the issues were well and truly ventilated through evidence and submissions. ¶5 By way of summary I am able to say that I have considerable sympathy for Mr Grossetti. He was in the wrong place at the wrong time. He evidently has considerable talent and experience and, had things worked out differently, he may very well have made a great contribution to the respondent in his role. To some extent he is a person whose intentions were good but who was misunderstood. However, my sympathies cannot be decisive here. ¶6 Mr Grossetti was on probation at the time of his dismissal and he gave the respondent ample material upon which it could reasonably doubt that he was a “good fit” for employment with it. Having brought those doubts to Mr Grossetti’s attention he was unable to respond to them in such a way as to remove or sufficiently alleviate them. A genuine question of compatibility remained as at 16 June 2016 and Mr Grossetti cannot reasonably complain that the respondent got the answer to that question wrong. ¶7 Most of the facts in this matter, despite the considerable attention given to them in evidence, were not really in dispute. The controversy was about the proper characterisation of those facts. The exception is exactly what happened on 15 June 2016 when Mr Grossetti presented at the door of the meeting at which another employee was to be given a notice to show cause why he should not be dismissed from his employment. ¶8 I will go through the factual matters, making comments and findings as the need arises, beginning with two matters that provide essential background and relevant context. ¶9 The first matter was a complicating factor exercising the minds of the respondent’s relevant officers in relation to Mr Grossetti’s employment. This was as follows: Mr Grossetti would be the manager of a Mr Trevor Prentis, who held the position of Co-ordinator, Community Safety and Emergency Management; as at the date of Mr Grossetti’s appointment the respondent held concerns about the level of Mr Prentis’s performance and, without it being necessary to characterise the process in place at that time in relation to him, the respondent was acting on those concerns; and it had come to the attention of the respondent that Mr Grossetti and Mr Prentis knew each other through previous employment (both had been police officers at the same time). ¶10 I interpose here that the fact of the matter, as I find it, is that the relationship between Mr Grossetti and Mr Prentis was simply that they had both worked for the same employer at the same time and had known each other at that time. I find that they were not friends or even ongoing acquaintances. Mr Prentis, upon learning that Mr Grossetti was to be appointed, especially in light of the difficulties he was facing, may have intimated there was more but I find there was not. ¶11 Nonetheless, that Mr Grossetti and Mr Prentis were known to each other came to the attention of the relevant officers of the respondent and the relationship, even expressed in these neutral terms, was something the respondent was reasonably entitled to react to. ¶12 The respondent handled the matter in this way. Through Ms Michelle Brennand, Operations Manager, Community Service Delivery, the respondent informed Mr Grossetti on the second day of his employment that there were problems with Mr Prentis’ performance (ts 104 - 105). Then, in the second week of his employment, Mr Grossetti met with the respondent’s Chief Executive Officer, Mr Daniel Sims, who asked Mr Grossetti about his relationship with Mr Prentis and said to Mr Grossetti words to the effect that in his employment he was to be Mr Prentis’ boss and not his friend. ¶13 Ms Georgina Monkhouse, Manager, People and Culture, who was also present at the meeting with the Chief Executive Officer gave more detailed, and dramatic, evidence about what was said by the Chief Executive Officer but I place no reliance on her evidence in this regard it not having been put to Mr Grossetti. ¶14 Mr Grossetti was thereafter involved in meetings relating to Mr Prentis’ performance including meetings with him and about him (until mid-June which is a matter to which I will need to return). ¶15 So to summarise, when Mr Grossetti commenced employment he was the line manager of someone with whom he had a very basic and historical acquaintance and the respondent addressed the issue, apparently to everyone’s satisfaction, by the Chief Executive Officer raising the issue with Mr Grossetti and being assured by the responses he received. ¶16 The second matter was that prior to Mr Grossetti’s employment the respondent had commenced a structural review of what were described in the proceedings as its “business units”. One of those business units was “Community, Safety and Emergency Management” which, of course, Mr Grossetti was to manage. ¶17 The review was being conducted by a contractor, Joanne Graham, and at least one of its purposes was, as described by counsel for the respondent, and accepted by Mr Grossetti (ts 99), “to clarify basically who did what and who reported to who.” ¶18 Early in Mr Grossetti’s employment, probably within the first week, and certainly within the first two weeks, Mr Grossetti had been told about Ms Graham’s work and had met with her about it (ts 99 - 100). ¶19 It was explained to Mr Grossetti by the respondent’s officers that he could have input into the review of the Community, Safety and Emergency Management business unit. Mr Grossetti was told, and understood, that he could make recommendations about the right structure for the business unit (ts 100). ¶20 Over a short period of time this developed into a point of friction between Mr Grossetti and the respondent. ¶21 Mr Grossetti had a very strong view that the role of “Co-ordinator” was crucial to the successful management of the business unit. This was based on his experience in a similar business unit at a previous local government employer. ¶22 The respondent had a view that the role of “Co-ordinator” was neither necessary nor desirable. That view was, at the time of the commencement of Mr Grossetti’s employment, a nearly fully cured slab of concrete. The Chief Executive Officer had, in fact, given a direction that the business unit was “top heavy” in having a Director, Manager and Co-ordinator and, reacting to this, the holder of the Director position at the time, Ms Fiona Hodges, had the position of “Co-ordinator” firmly in her sights (ts 439). ¶23 Mr Grossetti was told by Ms Hodges that she “was open to a process to look at the structure” in light of anything Mr Grossetti might suggest (ts 453) but I find that the fact of the matter was that it would have taken a jackhammer to disturb the view within the respondent that the Co-ordinator positon had no future. (see evidence of Ms Brennand at ts 327) ¶24 I am of the view that any polite comment that represented otherwise to Mr Grossetti could only have given him false hope. ¶25 These two matters, the previous relationship between Mr Grossetti and an employee whose performance was being questioned and the proposed restructure, are those that move me to say that Mr Grossetti was in the wrong place at the wrong time. ¶26 Mr Grossetti commenced his employment in circumstances where there was a likelihood that anything he had to say about the management of Mr Prentis might be misinterpreted and where the business unit he was being tasked to manage was very close to being restructured in a way he thought was going to seriously and adversely affect its operations. ¶27 In relation to both issues I find that the respondent encouraged, or did not discourage, input from Mr Grossetti but had very little interest in what he had to say. In fact, insofar as what Mr Grossetti had to say was not in line with the prevailing views and momentum of events within the respondent it was a source, quite unfairly, of irritation with, and negativity toward, Mr Grossetti. ¶28 A few examples will suffice, and here I deal with some of the factual matters before me. ¶29 On 19 May 2016 Mr Grossetti attended a meeting to discuss Mr Prentis. Also present were Ms Hodges, Ms Brennand, Ms Monkhouse, Ms Leah Piper, Coordinator, Operational Human Resources and Ms Katherine MacAdams, Senior Human Resources Advisor. ¶30 It is clear that the meeting was about how to remove Mr Prentis from his position of Co-ordinator, Community Safety and Emergency Management. ¶31 Exhibit 45 is the notes of Ms Brennand of the meeting. Exhibit 56 is Ms MacAdams’ notes of the meeting. Exhibit 60 is the notes of Ms Piper. Each exhibit reflects that there were two options discussed being; (1) an escalation of, or to, formal performance management; or (2) what is noted in Exhibit 45 and Exhibit 60 as “Exit Strategy” and in Exhibit 56 as “Exit from organisation”. ¶32 Exhibits 45 and 56, the two most comprehensive sets of notes, reflect that the bulk of the meeting dealt with Mr Prentis’ “exit” from employment and I have little trouble in reaching a conclusion that the discussion centred on this. ¶33 I also have little doubt that Mr Grossetti pointed out the risks associated with the various “exit” options discussed and that he did so assertively and for the most part alone. ¶34 I also find that Mr Grossetti’s input about the risks might have been viewed as useful. I do not need to go into great deal of detail to come to a conclusion that there were risks if the respondent decided to deal with Mr Prentis outside of the application of its written policies and procedures, which was something it was considering doing as at 19 May 2016. ¶35 Mr Grossetti was within his rights to point out the risks and there was nothing wrong with him stating his opposition at that meeting to what was proposed (especially given that Ms Brennand says it concluded with Mr Grossetti saying that in the end “he would do what he had to do” (ts 330)). ¶36 However, the respondent interpreted Mr Grossetti’s input as reinforcing their (largely unsubstantiated) concerns that Mr Grossetti had an “allegiance” to Mr Prentis (ts 361) that was clouding his ability to be appropriately involved in management of him. That interpretation was, in my view, unfair and is an example of Mr Grossetti simply being the wrong man in the wrong place and at the wrong time. ¶37 What might have been viewed as helpful or responsible in a different context was viewed with suspicion and negativity in the extant circumstances. ¶38 Another example is the respondent’s reaction to Mr Grossetti’s comments at the “Get to Know Your Leader” sessions on 23 May 2016. ¶39 This session was one for the members of staff within the Community, Safety and Emergency Management business unit to get to know their new boss, Mr Grossetti. ¶40 Ms MacAdams, who facilitated the session, explained in evidence (ts 506) that “the aim was to provide Mr Grossetti’s direct reports with an opportunity to get to know him better and to lay foundations for communication, how the team would operate.” ¶41 Exhibit 10 was Ms MacAdams’ preparatory notes for the session to which she spoke during the session. Exhibit 11 was a one-page dot pointed summary of comments made during the session. ¶42 The session was, from the point of view of staff, held against a background of the review of the structure of the business unit and their anxiety about this comes through very strongly in Exhibit 11. ¶43 Exhibit 10 has Ms MacAdams saying to the participants that “open and honest dialogue” was important and that the objectives of the session were to provide them with an opportunity to “get to know” Mr Grossetti, to “build the basis for long-term working relationships” between them and Mr Grossetti and to “lay the foundation, very early on, for open communications.” ¶44 From Mr Grossetti’s point of view he entered the session with an awareness that a positon he thought crucial to the operation of the business unit was in jeopardy but a hope, engendered by the respondent, as forlorn as it may have been, that it might survive. ¶45 To complete the background, it is fair to say that the issue of the new structure already had a history as between Mr Grossetti and the respondent as at 23 May 2016 ¶46 Mr Grossetti had prepared a new structure which included the Co-ordinator positon soon after commencing employment (ts 111). In response, by email dated 4 May 2016, which became Exhibit 26, Ms Hodges had told him “it will be beneficial for all to be aligned in our thinking” in relation to the structure of the business unit and had told Mr Grossetti, to characterise it in the way Mr Grossetti accepted to be accurate under cross-examination, to “hold his horses” (ts 111) in relation to his advocacy for his structure. ¶47 Mr Grossetti was subsequently told, on the respondent’s version of events, that all was not lost in relation to his proposed structure. However, the instruction to “hold his horses” was certainly never countermanded. ¶48 The above was the state of play in relation to the re-structure issue as at 23 May 2016. ¶49 On 23 May 2016 Mr Grossetti said to the five or so assembled staff at the Get to Know Your Leader session, among many other things, and in answer to a direct question on the subject (ts 145), that he wanted a structure that included the position of Co-ordinator or equivalent. ¶50 In terms of exactly what was said I find (because Mr Grossetti while not recalling it admits that it may have been said in this way (ts 147) and because Ms MacAdams is firm that Mr Grossetti said it this way (ts 506) and she took undisputed action after the meeting on the basis that it was said in this way) that Mr Grossetti said words to the effect that: his leaders had a position on what the structure of the team should be and that he didn’t necessarily agree with it…but that if he had to implement the structure that his leaders were indicating they wanted in place, then he would do so. (ts 506) ¶51 Ms MacAdams reported Mr Grossetti’s comments up the line and relevant officers of the respondent took a dim view of them. They were characterised as an example of Mr Grossetti having a problem with “appropriate information sharing” (Exhibit 13) and not “aligning himself with the leadership team” (ts 332). ¶52 I find that Mr Grossetti’s conduct at the session should have, reasonably, been viewed quite neutrally. ¶53 It was a session where his staff were supposed to get to know Mr Grossetti, with objectives as lofty as “building the basis for long-term working relationships” and the “laying of the foundation for open communication” being explained to staff present. ¶54 The issue of the structure of the business unit was evidently going to be something on the minds of staff and was likely to be raised with their new leader, as indeed it was. The respondent could have protected Mr Grossetti from the matter by having Ms MacAdams ask staff to excuse Mr Grossetti from fielding questions about it. It would have, in my view, been sensible to offer Mr Grossetti this protection. But the respondent did not do this. ¶55 As I say, predictably, Mr Grossetti was asked questions about it. If Mr Grossetti was trying to do his part to “build the basis” and “lay a foundation” for good communication he could hardly begin by dissembling or deflecting or reaching for a dictionary of weasel words. ¶56 Instead, and not inappropriately, Mr Grossetti gave his honest opinion but qualified it by saying that it was ultimately not up to him and he would abide by the decision, obviously intimating to his staff that they would be expected to do the same. ¶57 Again, the words of Mr Grossetti came back to bite him not because there was anything inherently wrong with them but because he was the wrong man in the wrong place and at the wrong time. ¶58 Mr Grossetti had experience in a structure where there had been Co-ordinator positions (or equivalents) and he had been hired to manage a business unit where they were set to disappear because the Chief Executive Officer had directed the Director to create a less “top heavy” structure. ¶59 Mr Grossetti arrived right in the middle of that process and with it having considerable, really irreversible, momentum. ¶60 If Mr Grossetti had arrived before the process of review began things might have been different. If he had arrived after it had been completed he would have already known the structure he was to manage. As it was, he arrived at a time when his voice, technically, may have counted for something but, realistically, never could. His comments and attitudes, including his comments at the Get to Know Your Leader session, were seen as disruptive and irritating because he was in the wrong place at the wrong time and he didn’t seem to know it. ¶61 There were some other factual matters relied upon by the respondent that are not really disputed by Mr Grossetti, other than by way of characterisation and weight, that I do not find helpful either alone or in combination with each other or in combination with weightier matters. ¶62 The first of these is the parking infringement issue. ¶63 The relevant documents formed, as a bundle, Exhibit 29. To summarise very briefly a ratepayer received a parking infringement which she paid, after having disputed its appropriateness. The ratepayer raised the issue with the local newspaper which in turn made an enquiry of the respondent about it. Mr Grossetti was asked to comment by the respondent’s “Senior PR/Communications Officer”. Mr Grossetti reviewed the matter and was of the view that the infringement was appropriately issued and paid. Nonetheless the draft media statement circulated for comment said “the City is currently investigating [the ratepayer’s] original appeal”. ¶64 Mr Grossetti did not see why the statement should give the reader the impression that the original decision to insist on the fine being paid would change and made that comment in his response email. He was then told by email that the Chief Executive Officer “would like to provide a refund given the circumstances”. ¶65 Mr Grossetti replied, in part, “that’s his prerogative, but a dangerous precedent to set (in my humble opinion).” Mr Grossetti goes on to cite reasons which suggest a good knowledge of parking issues confronting the respondent and familiarity with staff concerns. ¶66 Mr Grossetti’s contributions about the issue were held against him by the respondent at the time and, with appropriate qualification provided by counsel for the respondent, at the hearing. ¶67 It was said they were evidence of poor communication skills (during his employment) and of precociousness (given they took place within two weeks of starting employment) and inappropriate “pushing back” (ts 123) at the hearing. ¶68 I find that there is nothing relevant in this incident for my purposes. Mr Grossetti was asked for his view and gave it. He had experience in the area and had made efforts, consistent with the energetic approach he took to his employment, to get relevant feedback from his staff (ts 124-125). I do not see why he would have to wait a certain period of time before giving his employer the benefit of his view, especially when he was asked for it. ¶69 Mr Grossetti did not “push back” in the pejorative sense the term was used. He gave his view and did so with the qualification that it was only “his humble opinion.” Although it might be said that real humility did not reveal itself during the hearing as one of Mr Grossetti’s defining character traits the use of the phrase in the email carries its normal meaning and implication. ¶70 Ms Hodges gave evidence about the “grey environment” (ts 449) of local government by which she meant, she explained, that sometimes decisions get made for political reasons that might differ from the “best professional advice” (ts 449) of employees. She went on to be critical of Mr Grossetti’s handling of this issue (ts 450). Ms Hodges, in my view, fails to appreciate that black and white views behind the scenes might be required to make the “grey” that is the ultimate outcome. She also failed to give Mr Grossetti credit for, once his view had been given and rejected, carrying out the instructions to meet with the ratepayer, apologise to her on behalf of the respondent, promise to address her concerns and to inform her that the infringement penalty would be refunded. ¶71 The second factual matter in this category is that relating to a vehicle for the use of Mr Prentis. ¶72 Mr Prentis was at one time the Acting Manager, Community, Safety and Emergency Management and, when so acting, he had the use of one of the respondent’s vehicles. He later reverted to his substantive position of Co-ordinator. ¶73 Mr Grossetti proposed to Ms Hodges that Mr Prentis, in his role as Co-ordinator, be allowed to use an underutilised vehicle of the respondent. Ms Hodges rejected the proposal on the basis that she had already told Mr Prentis, verbally and in writing, that he would not “have the use of a vehicle upon his reversion to the Co-ordinator position.” (Exhibit 30) ¶74 Mr Prentis then claimed to Mr Grossetti that he had been given an undertaking by the respondent that when he reverted to his substantive position he would have the use of one of the respondent’s vehicles for commuting purposes if the lack of such a vehicle was causing him personal hardship. Mr Grossetti took the issue up again with Ms Hodges and also with Ms Brennand. ¶75 The whole matter is captured within email exchanges between Mr Grossetti and Ms Hodges and Ms Brennand on 23, 24 and 25 May 2016 which became, as three bundles, exhibits 30, 31 and 32 in these proceedings. The emails speak for themselves. ¶76 The exhibits show that when Mr Grossetti raised the issue of the “undertaking” with Ms Brennand and Ms Hodges, Ms Brennand gave a lengthy written reply setting out the history and concluding relevantly as follows: Based on the above, I believe the decision to allocate a car to Trevor may depend on the outcomes of the on call review. However, this then needs to take into account that his role is additional in the structure at present and I should probably also add that not all Coordinator roles have cars and use pool cars for operational requirements. Lastly, and as Fiona has already stated, there is also a need to consider the appropriateness of this potential car allocation. (Exhibit 31) ¶77 In response Mr Grossetti wrote the following: Good morning Thank you both for bringing some clarity to this issue and apologies if sound like a broken record! Trying to get my head around what the “arrangements” are or what undertaking may (or may not) have presented is challenging at best. I will not raise the issue again until such time as the “on-call review” is completed. I note that there is some considerable confusion and inconsistency about on-call allowances, where, how and to whom they are applied as was evidenced in discussions at the recent EA information session. (Exhibit 32) ¶78 In light of Mr Grossetti’s response I am not sure why the issue was raised against him before me. I can only imagine that the respondent’s attitude to the exchange was informed by a wholly misconceived idea that Mr Grossetti was closely aligned through friendship with Mr Prentis because absent that factor it is completely uncontroversial. ¶79 The third and final matter in this category is Mr Grossetti’s behaviour at the meeting of the body called the “Community Safety Working Group” which comprised two elected officials and some ratepayers as “community representatives”. No persons present other than Mr Grossetti was called to give evidence. His evidence, under cross-examination, raised no issue of concern and accordingly I place no reliance on the matter. ¶80 I then turn to the factual matters in relation to which there can be no misunderstanding, which are not open to misinterpretation or unconscious bias against a wider background or otherwise, and for which Mr Grossetti has no-one to blame but himself. ¶81 The first of these is Mr Grossetti giving feedback to a ranger he managed who had prepared prosecution briefs for his review by placing on the brief a post-it note describing aspects of its contents as “crap”. Mr Grossetti admitted that he had done this several times (ts 116) and had commenced doing so in the first week or so of commencing employment. ¶82 One example went into evidence as Exhibit 28 in these proceedings. The post-it note contained the following written feedback set out in its entirety: STATEMENT FORMAT (CRAP!) (SEE WILLIAMS STATEMENT) SMF FORMAT CRAP! Initials of Mr Grossetti 4/5/16 CRAP! (Exhibit 28) ¶83 No explanation or clarification for the notes was attempted by Mr Grossetti in re-examination. ¶84 I have no idea how Mr Grossetti came to the conclusion that such conduct was acceptable. I find that to give written feedback to persons you manage in these terms is outrageous and completely unacceptable. ¶85 The second of these factual matters was Mr Grossetti’s conduct towards Ms Brennand on 3 June 2016. ¶86 On 2 June 2016 Ms Brennand emailed Mr Grossetti, after having missed him in person, to tell him that a probationary review meeting would be held on 3 June 2016 and that at the meeting the following “areas” would be covered: Feedback and general observations Alignment with leadership team Leadership approach Behavioural expectations and the City’s core values. (Exhibit 12) ¶87 At the meeting Ms Brennand had with her some notes, prepared it would seem from Exhibit 46 with the assistance of Ms MacAdams, which became Exhibit 13 in these proceedings. The notes reveal that the feedback was intended to be a mixture of good and bad with a conclusion to be expressed to Mr Grossetti that there was a “need to improve.” ¶88 Although there was dispute about some of the detail, the oral evidence establishes to my satisfaction that this is exactly what happened at the meeting. Mr Grossetti got some positive feedback and some negative feedback and was left with the impression that there were some key areas in which he needed to improve (ts 165-170, 333-338). ¶89 Then, either at the end of the meeting (according to Ms Brennand (ts 335)) or later that day (according to Mr Grossetti (ts 170-172)), Mr Grossetti was made aware that the discussion was to be committed to writing. In the event a letter was sent to Mr Grossetti by Ms Brennand dated 3 June 2016 which became Exhibit 14 in these proceedings. ¶90 Whether it occurred at the meeting or later, it not being relevant for me to decide, when Mr Grossetti was made aware that the discussion would be reduced to writing he reacted badly. ¶91 Under cross-examination Mr Grossetti gave evidence as follows (ts 172-174): He was not happy about a letter going on his file; He may have raised his voice to Ms Brennand but he doesn’t recall it; He doesn’t now know whether he got angry; He quite possibly said words like “you’ve got to be kidding me”; He doesn’t recall it but may have said “this is bullshit”; and He doesn’t believe he said words like “there will be fire and brimstone if a letter goes on my file” but he uses that term so it is possible he did. ¶92 Ms Brennand gave the following evidence about Mr Grossetti’s reaction: He became aggressive at that point and just saying “Oh, you’ve got to be kidding me” words to that effect… [he said] “There will be fire and brimstone if that occurs” or words to that effect but definitely “fire and brimstone”. (ts 335) ¶93 I have no hesitation in finding that Mr Grossetti did get angry when he was told that the discussion would be reduced to writing and placed on his file and that he spoke aggressively and without proper restraint. Mr Grossetti’s denials were half-hearted at best and I prefer Ms Brennand’s evidence in relation to both content and characterisation. ¶94 I find that Mr Grossetti’s reaction was inappropriate. ¶95 The respondent had every right to raise the issues it did with Mr Grossetti and, to the extent it held negative views, to tell him to improve in certain areas. I do not understand that even Mr Grossetti disagrees with this. ¶96 The respondent, and this is where Mr Grossetti and the respondent clearly did disagree, also had every right to reduce the matters discussed to writing and to place the document on Mr Grossetti’s personnel file. ¶97 It does not matter that I have found that some of the issues, in the context of the current proceedings, are not significant or may be viewed differently from the way the respondent viewed them at the time. ¶98 If the respondent had genuine concerns, and plainly it did, it was perfectly entitled, indeed it could be said obliged in the interests of fairness, to record them. ¶99 Even if Mr Grossetti had a competing view, that view should not have been rudely and aggressively conveyed to Ms Brennand. ¶100 I am not relevantly informed by Mr Grossetti’s written response to Exhibit 14, a memorandum to Ms Hodges that became Exhibit 15 in these proceedings. Mr Grossetti was entitled to write it but, in my view, if by that time damage had been done to the respondent’s attitude toward Mr Grossetti as a result of conduct on 3 June 2016 he had no-one to blame but himself. ¶101 I should add here that after becoming aware of Mr Grossetti’s conduct at the meeting and Mr Grossetti’s written response, Ms Hodges wrote an email to the Chief Executive Officer and Ms Monkhouse on 7 June 2016 (Exhibit 55 in these proceedings) stating that “the potential for this individual to become more threatening, should matters progress down a more negative path, do cause worry from a personal and family perspective, and I hold a similar concern for Michelle”. It continued that “the behaviour demonstrated to date indicates the potential for the individual to be physically threatening.” ¶102 The reference to Mr Grossetti as “this [and the] individual” is disrespectful. The sentiments expressed may have been genuinely held by Ms Hodges (although they were not shared by Ms Brennand (ts 352, 400, 443, 460)) but even so they were, on any reasonable analysis, exaggerated and fanciful. That Ms Hodges was not prepared in the stand to admit that she may have been wrong about Mr Grossetti, given that in response to being dismissed he quietly packed up his belongings and left and pursued his grievance respectfully and calmly through a statutory process, is troubling to me considering the power Ms Hodges had in relation to Mr Grossetti and the role she played in his dismissal. However, the matter is ultimately not relevant to the determination of Mr Grossetti’s application because of the findings I make about his conduct. ¶103 And so I come to the events of 15 June 2016. ¶104 I have already mentioned the meeting on 19 May 2016 at which Mr Prentis’ future was discussed. After that meeting the respondent sought legal advice and decided to present Mr Prentis with a notice to “show cause” why his employment should not be terminated. The notice was to be presented to Mr Prentis at a regular scheduled meeting held in relation to his performance management or development process. ¶105 On 14 June 2016 a meeting was held attended by Mr Grossetti, Ms Brennand and Ms Monkhouse to discuss the meeting with Mr Prentis planned for 15 June 2016. Notes of the meeting taken by Ms Brennand became Exhibit 17 in these proceedings and Mr Grossetti told me that they basically accord with his recollection of the meeting (ts 72). ¶106 I can summarise the meeting quite fairly, in my view, in this way. ¶107 Based on the notes, the evidence of the witnesses and what has, in light of the background, a ring of truth about it Mr Grossetti was told of the plan for 15 June 2016 in relation to Mr Prentis and why it was being implemented. Mr Grossetti objected to the planned course of action and did so in clear and strong terms. His main objection was that the performance management or development approach was inappropriately morphing into a disciplinary process without relevant policies and procedures being followed. ¶108 Mr Grossetti was told that he was not to attend the meeting with Mr Prentis planned for the next day. By way of explanation Ms Brennand told Mr Grossetti that three people would be too many on the management side of the table at such a meeting and that as she and a Human Resources representative had to be there Mr Grossetti was not required to attend (ts 346-347). ¶109 Mr Grossetti objected, again clearly and strongly, and Ms Brennand, equally clearly, told him that he was not to attend. ¶110 There the matter was left. ¶111 Three things may be observed at this point. The first is that Mr Grossetti was not told the full reasons why he was not to attend the meeting. A big part of the reason why the respondent did not want him there is because by 14 June 2016 the relevant officers of the respondent had begun to lose confidence in Mr Grossetti’s ability to remain cool and dispassionate, particularly in relation to matters involving Mr Prentis. As early as 9 June 2016, as Exhibit 47 shows, Ms Brennand had raised with Human Resources whether Mr Grossetti should be at the meeting with Mr Prentis. (I note that the comment on the subject in the email which was Exhibit 47 arose out of a meeting on an unrelated matter between Mr Grossetti and Ms Brennand upon which little weight was placed in these proceedings). ¶112 Ms Brennand explained in her evidence, although it must be said reluctantly, that, at least in part, the respondent did not want Mr Grossetti to attend the meeting because “of the concerns we had around the relationship and that Mr Grossetti seemed to have aligned himself more with the team than he did with management.” (ts 347) ¶113 I think the reason given to Mr Grossetti was not a strong one (certainly the “three on one is too many” rule was not applied to Mr Grossetti when it was his turn to get bad news, as Ms Hodges, Ms Brennand and Ms MacAdams were in that meeting) and it could, in part, explain Mr Grossetti’s resistance to his exclusion and his actions the next day. ¶114 The second thing to observe is that Mr Grossetti, in my view, was quite within his rights to query the actions the respondent was planning to take in relation to Mr Prentis. Without making conclusive comment, because it is clear I don’t need to, what was being proposed was, to anyone with a working knowledge of workplace policies and procedures in relation to performance management and discipline, as Mr Grossetti apparently had, highly unusual and it must be said highly suspect. ¶115 The third and final thing to observe is that whether or not Mr Grossetti was convinced the respondent was doing the right thing in relation to Mr Prentis, and whether or not he was convinced there were good reasons for his exclusion from the planned meeting, it is abundantly clear that Mr Grossetti was told, by someone with the authority to so direct, that he was not to be at the meeting on 15 June 2016. ¶116 In light of these comments I can preface my comments about the events of 15 June 2016 by saying that even if I accepted Mr Grossetti’s versions of events, and even if I convinced myself that there was an explanation for his actions, I could not possibly find there was a good excuse for them. ¶117 Mr Grossetti’s version is that Mr Prentis attended his office about five minutes before the scheduled meeting as was Mr Prentis’ practice before his performance management or development meetings. ¶118 I interpose to comment that this situation arising is an unfortunate, but perhaps predictable, by-product of the respondent implementing its plan as part of a meeting scheduled for entirely different purposes. I add however that it should not have been enough to throw Mr Grossetti off stride. ¶119 Mr Grossetti says that he told Mr Prentis that he had been “directed not to attend the meeting and that [Mr Prentis] was to attend the meeting alone” (ts 72). Mr Prentis’ antennae went up and he said to Mr Grossetti “They’re going to try and sack me, aren’t they? I don’t trust them. I want you to be there as my support person.” (ts 73) ¶120 Mr Grossetti says that he then told Mr Prentis to wait in his office and Mr Grossetti left his office with the intention of going to the meeting venue to seek advice on Mr Prentis’ request that Mr Grossetti attend as his support person. (ts 73) ¶121 Mr Grossetti says he did that saying to Ms Brennand and Ms Piper, the respondent’s attendees at the planned meeting, words to the effect “I know you don’t want me to be at this meeting. Trevor has asked me to be his support person, will you tell me what I should do?” (ts 73) ¶122 Mr Grossetti says that he then noticed that Mr Prentis had ignored his request to stay in Mr Grossetti’s office and was “standing to my right, and slightly behind me, to my shoulder.” (ts 73 and 187) ¶123 Ms Brennand then said words to Mr Grossetti to the effect “I’ve told you you’re not required at the meeting. We want to discuss something else with Trevor. We will speak to Trevor alone” (ts 73) at which point Mr Grossetti left and returned to his office, the meeting then proceeding in his absence (ts 73). ¶124 Accepting everything Mr Grossetti said to be true, his version does not assist him in my decision-making. Not only had it been made clear to Mr Grossetti by his direct line manager that he was not to attend the meeting, he had been told this over his objections and when he knew that his direct line manager was aware of his objections, and the reasons for them, and had overruled them. ¶125 Mr Grossetti could have been in no doubt that, whatever he thought about the matter, Ms Brennand’s position was a considered, firm and final position. ¶126 It would have been equally clear to anyone thinking about the matter sensibly that it was not within Mr Prentis’ powers of persuasion to have Mr Grossetti at the meeting. In other words, it should have been clear that whatever Mr Prentis wanted in relation to Mr Grossetti’s attendance was completely irrelevant. Whether Mr Grossetti attended the meeting was not up to Mr Prentis. ¶127 Mr Prentis’ stated desire that Mr Grossetti be at the meeting should have been deftly deflected by Mr Grossetti. It cannot possibly be a good excuse for any other action on the part of Mr Grossetti. ¶128 Perhaps inadvertently, perhaps even by some ineptitude on its part, the respondent had set a test for Mr Grossetti to show that he could obey instructions he didn’t like and, if that required some careful and intelligent management of a difficult situation, to show it. ¶129 Mr Grossetti resoundingly failed the test. He had any number of options for dealing with the situation that arose without inserting himself into it. He could have told Mr Prentis, without a dramatic compromise of his principles and in a way that showed he understood the flexibility sometimes required of a manager, that he was double-booked or that something had come up or that he simply could not attend. He failed to do this and his employer was entitled to take a dim view of it. Consideration ¶130 Having undertaken the above analysis of the evidence, characterising it in certain ways and drawing conclusions from it where necessary to do so, I now turn to the application of the facts to the law. ¶131 The leading decisions guiding decision-making in relation to a dismissal during a period of probation remain those of the Full Bench of the Western Australian Industrial Relations Commission in Hutchinson v Cable Sands (WA) Pty Ltd (1999) 79 WAIG 951 and East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers (2000) 80 WAIG 3155. ¶132 I do not propose to reproduce [49] of the decision in East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers (2000) 80 WAIG 3155, which counsel for the respondent relied upon and Mr Grossetti told me he was familiar with, but I will mention some of the principles therein where they are relevant to my decision. ¶133 I would add to the principles, as Commissioner Kenner, as he was then, did at [18] of Peter Milford Weston v WA Property Lawyers (2015) 95 WAIG 1455 the comments of Heydon J at [16] of Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1 as follows: ¶134 Probation involves a process of putting to proof. It is a process of investigation and examination. A probationary period is a period of testing or trial for the purpose of ascertaining whether [a person] has the necessary qualifications for a permanent appointment, and the word ‘probation’ itself involves the idea of something in the nature of trial and experiment with a view to determining whether an applicant is to be appointed. ¶135 In my analysis of the evidence I have seen some things differently from the way the respondent saw them. I have attempted to put some of Mr Grossetti’s behaviour, and the respondent’s reaction to it, in a context that only becomes clear from dispassionate consideration understandably not open to the parties. ¶136 However, even having done that, there is a “bright line” of conduct running through Mr Grossetti’s period of employment which makes the decision to dismiss him one that was not harsh, oppressive or unfair. ¶137 That line runs from Mr Grossetti writing “crap” on several occasions when giving feedback to rangers, through his conduct toward Ms Brennand on 3 June 2016 and to his conduct on 15 June 2016. ¶138 The first and second matters would have reasonably given the respondent concern that Mr Grossetti was unable to either give or receive feedback appropriately, surely a bad sign in a middle to upper middle manager. ¶139 The third matter called into serious, indeed determinative, question Mr Grossetti’s judgement and skill, as well as his loyalty to the respondent. ¶140 If, at his interview for the position he won, Mr Grossetti had been asked the questions and given the answers set out below there is simply no way he would have been successful in his application: “If a subordinate gave you work that you considered to be substandard how would you give feedback?---I would write “CRAP” on a post it note and return it.” “If your superior, during a probationary review, discussed some areas for improvement with you and indicated that a record would be made of having done this how would you react?---I would get very upset, raise my voice and tell them that there would be fire and brimstone if the record was kept”. “If your superior made it abundantly clear to you that you were not to attend a meeting with a subordinate that you thought you should attend and then the subordinate asked you to attend what would you do?---It would depend on the circumstances but I may go back to my superior to check whether the order stood”. ¶141 I accept that a period of probation goes beyond a notional first interview and extension of the selection process, but there is no context or factual circumstance arising out of the period of probation which reduces the impact of the above. Mr Grossetti actually acted in each of the above ways during his period of probation. ¶142 It is true that probation is also a time for teaching, training and counselling and that employees on probation need to be informed they are not meeting required standards and given an opportunity to improve. ¶143 Mr Grossetti did not need teaching or training in the areas relevant to his dismissal. ¶144 In regards to instruction and counselling, Mr Grossetti got all of the feedback he could possibly have needed. It was given to him by Ms Brennand at the meeting on 3 June 2016. He agreed with me that he had received a message at that meeting that he should “tread lightly or tread lighter” (ts 624). ¶145 Having received that message, and I find that was sufficient for a person of Mr Grossetti’s experience and intelligence in terms of the need for information and counselling, Mr Grossetti did not tread lightly. That same day and again on 15 June 2016, just two weeks later, he confirmed the doubts the respondent had about his ability to do so. He simply did not meet the standard of conduct reasonably required of him. ¶146 Mr Grossetti’s case ultimately asks me to ignore that he was on probation and that the respondent had a big decision to make; that being whether Mr Grossetti had the necessary qualifications for continuing employment in a relatively senior position. ¶147 Mr Grossetti ultimately asks me to ignore that a probationary period is something in the nature of a test or trial or experiment. ¶148 Another employer may have seen Mr Grossetti’s actions differently. Similar complicating circumstances may not have arisen at different employment. Mr Grossetti’s undeniable energy, ability and intelligence may have carried the day with another employer. But there is, determinatively, nothing unreasonable about the respondent taking the view, on the information it had, prominent among it being the three matters I have emphasised, that Mr Grossetti was not suitable for further employment with it. ¶149 At ts 478 Ms Monkhouse gave a good explanation for Mr Grossetti’s dismissal which corresponds largely with what I have found. The evidence of the meeting at which Mr Grossetti was told his employment was terminated (ts 80-82, 205, 210-212, 353-358, 447-450, 511-519) and the confirmatory letter dated 17 June 2016, which became Exhibit 21 in these proceedings, raised those same issues, although in Exhibit 21 the wording was quite general. ¶150 There is no doubt that Mr Grossetti was dismissed for the reasons which included the three matters I have emphasised and I find that dismissal for those reasons was not harsh, oppressive or unfair. ¶151 I should add that even though there were factors which were frustrating Mr Grossetti, and perhaps reasonably so, none of them explain or excuse the conduct I see as most relevant and significant. ¶152 Mr Grossetti also raises various procedural matters. ¶153 Mr Grossetti says he was never warned that if he did not address matters raised with him that he might be dismissed. This may be rejected out of hand. The evidence is clear that Mr Grossetti well understood the probationary nature of his employment and that he had to successfully complete the period of probation for his employment to continue. There was this exchange between counsel for the respondent and Mr Grossetti in relation to Exhibit 14: “And you were upset about the letter because you knew you were on probation and a letter on your personnel file was a threat to your employment. You knew that didn’t you?---Ah, yes I did.” (ts 174) ¶154 There were other examples. ¶155 Mr Grossetti cannot now successful argue that he was unfairly blindsided by his dismissal. ¶156 Mr Grossetti says that Ms Hodges’ involvement in his dismissal renders it unfair because she was biased against him. Again there is nothing in the point. I have had the opportunity to hear six days of evidence in relation to this matter and I find, on the basis of that evidence, that the respondent was entitled to take the action it did on objectively found facts. Ms Hodges’ state of mind has ceased to be relevant. ¶157 Mr Grossetti says that his dismissal was unfair because he had no support person present at the meeting on 16 June 2016 at which he was asked to explain his actions on 15 June 2016, against a background of his employment, at that time, being in serious jeopardy. The raising of this issue brings no credit upon Mr Grossetti. ¶158 Mr Grossetti was told by the respondent that he may bring a support person to the meeting (Exhibit 49). Initially in the proceedings Mr Grossetti attempted to portray his response to Exhibit 49 as a request that Ms Hodges attend as his support person (ts 202). In his email response Mr Grossetti wrote “I would like Fiona present when we further discuss this please.” (Exhibit 54) “Fiona” was Ms Hodges. ¶159 Without necessarily admitting that the response did not, and was not intended to, carry the implication that Mr Grossetti wanted Ms Hodges to be his support person Mr Grossetti eventually accepted at the hearing that he did not, in truth, want Ms Hodges there as his support person. Instead, he eventually admitted, he wanted her to think she was in the meeting in that role because, if his dismissal was to be considered, this would force her to remove herself from the decision-making process. ¶160 That is, Mr Grossetti thought he was placing Ms Hodges in a conflict of interest situation and that she would be forced to recuse herself from decision-making in relation to him because she was his support person (ts 207). He admitted it was a “tactic” (ts 208). ¶161 Of course the tactic was a hopeless one because neither Ms Hodges, nor anyone else present, thought for a moment that Ms Hodges was attending as Mr Grossetti’s support person (no doubt because the emailed response was vague and because everyone knew Ms Hodges could not be Mr Grossetti’s support person because of the role she was being paid to play in the management of him). ¶162 The bottom line is that Mr Grossetti was offered the opportunity to bring a support person to the meeting on 16 June 2016 and, viewed sensibly and substantively, decided not to have one present, it being accepted by him that even if Ms Hodges was to be his support person he did not really want, need or expect her support. ¶163 Mr Grossetti’s submission to me that the respondent conducted the meeting while “intentionally denying me the right to any independent support person” (ts 628) was not well made in all of the circumstances and is rejected. ¶164 I also find that at that meeting Mr Grossetti was given the opportunity to address the concerns the respondent had about him and that the respondent subsequently properly considered his submissions and were, reasonably, not satisfied by them. ¶165 Mr Grossetti, in submissions, returned several times to the issue, as he saw it, that the contents of Exhibit 14, his probationary review letter, contained “unsubstantiated allegations” and that those allegations were not “tested or proven through any proper investigative or enquiry process” (ts 628 for example). ¶166 Mr Grossetti complained about a lack of particulars and claimed that reliance on the issues discussed on 3 June 2016 and noted in Exhibit 14 was procedurally unfair (ts 629). ¶167 In relation to this I can only say that Mr Grossetti’s submissions reveal a lack of understanding about what is required of an employer during a probationary period of employment. An employer does not need to conduct a full investigation into matters formative of its assessment of the compatibility of a probationary employee before it may raise or rely upon them. The respondent did what was required of it by bringing the matters to Mr Grossetti’s attention and giving him a chance to improve. ¶168 There was nothing procedurally unfair about the process leading to Mr Grossetti’s dismissal. ¶169 That leaves for consideration Mr Grossetti’s claim that he has not been allowed by the respondent a benefit to which he was entitled under his contract of employment. ¶170 The Notice of Claim filed 12 July 2016 does not contain a lot of detail (unlike the Notice of Application). ¶171 If I assume that Mr Grossetti was alleging a breach of contract on the part of the respondent, then, given he seeks by the claim the balance of monies he would have earned to completion of the contract of employment, the breach alleged must be the termination of his employment. ¶172 The termination of Mr Grossetti’s employment was not in breach of his contract of employment. Clause 2.2(f) of the contract of employment (Exhibit 2 in these proceedings) provides that during the three-month probationary period “either party may terminate the contract by one week’s written notice to the other party or payment or forfeiture of payment in lieu of notice.” ¶173 The termination complied with this subclause as evidenced by Exhibit 21, the letter confirming termination. ¶174 There was no breach of contract. ¶175 It is unfortunate that matters worked out as they did. Mr Grossetti has undeniable skill and experience and may be a good fit with another employer. But I can offer him cold comfort only. He was obviously not a good fit for the respondent a conclusion to which, I have found, it was fairly and reasonably entitled to come.