s.365 - General protections (consent arbitration)

Rimfire Asia Pacific Pty. Limited, Adam Monaco, Raymond Richards

Section 365 - consent arbitration - prohibited reason found as operative reason for dismissal

• [1] Mr Christopher Gray (Mr Gray) applied under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving a dismissal (general protections dismissal application). Mr Gray was employed by Rim Fire Asia Pacific Pty Ltd (Rim Fire) in the position of Sales Representative. Mr Gray commenced employment with Rim Fire on 3 July 2023. Mr Gray was terminated on 18 April 2024.

• [2] Mr Gray asserts that Rim Fire terminated his employment after he made complaints about the conduct of his co-worker, Mr Raymond Richards. Mr Gray submits that this was in contravention of sections 340 and 341 of the Act.

• [3] Mr Gray states that he made a complaint regarding the conduct of Mr Richards, alleging that he acted in a manner contrary to the Rim Fire employee code of conduct when Mr Richards verbally abused Mr Gray. Mr Gray asserts that this was a complaint in relation to his employment consistent with section 341(1)(c)(ii) of the Act.

• [4] Mr Gray also asserts that Rim Fire took adverse action against his employment after he alerted Rim Fire to his pre-existing medical condition when Rim Fire subsequently decided he could no longer attend a sales conference in Melbourne.

• [5] It is not in dispute that Rim Fire terminated the employment of Mr Gray. However, it is disputed by Rim Fire that the dismissal was in response to the making of a workplace complaint or inquiry.

• [6] The parties gave notice under section 369(1)(b) of the Act that they consented to the dispute being arbitrated by the Commission. As a result, directions were issued for the parties to file submissions, evidence, and any witness statements they sought to rely on. On 19 November 2024, a hearing was held to examine the evidence. Mr Gray was self-represented and gave evidence on his own behalf. Mr Adam Monaco (Chief Financial Officer) represented Rim Fire.

• [7] Mr Gray gave evidence on his own behalf at the hearing, I found Mr Gray to be a reliable witness in his testimony. Mr Gray outlines that there were two main events in the months prior to his termination in which he raised protected matters regarding his employment with Rim Fire.

• [8] The first incident occurred on 14 January 2024, when Mr Gray emailed Mr Mario Racki (General Manager) regarding his pre-existing medical condition (Somnolence resulting from Narcolepsy) as he was seeking modifications from Rim Fire in order to attend a national sales conference in Melbourne. Mr Gray states that he made the following requests:

• A separate bedroom and not to be sharing a room with a fellow employee.

• To travel a day prior to the conference to manage his fatigue.

• [9] Mr Gray offered to take annual leave the day prior (i.e. the day of travel) to the sales conference and to contribute to additional costs. Mr Gray states that, after making this request, Mr Racki never sought to discuss this with him further. Instead, he was advised on 19 January 2024 that he would no longer be attending the sales conference.

• [10] The second incident occurred after an interaction with Mr Richards. Mr Gray states that he was emailed by Mr Richards on Friday 8 March 2024, at 5:22am, to attend a sales meeting at 8:30am that same day. Mr Gray states that this was not for the purposes of a sales meeting, rather, it was an ambush. During the meeting, Mr Gray states Mr Richards verbally attacked him and that his conduct did not influence such actions.

• [11] Mr Gray lodged a formal complaint with Mr Monaco on 12 March 2024 in relation to the above altercation. Mr Gray submits that this complaint about the conduct of Mr Richards was the primary reason for Rim Fire terminating his employment on 18 April 2024.

• [12] Mr Monaco confirmed that, in addition to his position as Chief Financial Officer of Rim Fire, he was also the complaints officer for any internal staff related issues, such as the complaint raised by Mr Gray in relation to Mr Richards.

• [13] Mr Monaco states that he had investigated the complaints raised by Mr Gray in relation to his interaction with Mr Richards. Mr Monaco outlines that Ms Mykaela Wrangles (Office & Warehouse Coordinator) was present for a portion of the altercation between Mr Gray and Mr Richards. Ms Wrangles did not give evidence before the Commission. However, in an email to Mr Monaco, Ms Wrangles did not agree with Mr Gray that Mr Richards verbally attacked him. Ms Wrangles confirmed that, after she left the room (to take a phone call), she could hear the conversation between Mr Gray and Mr Richards become more heated, however, she did not hear any swearing or anything unprofessional.

• [14] Mr Monaco notes that, on 10 April 2024, he sent an email to Mr Gray to close out the investigation which stated:

"I am writing to respond to your workplace complaint, which you submitted on March 12th, 2024. I have carefully reviewed your formal complaint letter and conducted an investigation into the incident involving all parties. Although it is difficult to completely resolve such situations, I am hopeful that my investigation and recommendations will prevent future breaches of the company's code of conduct in the Western Australia team.

During my review, I observed that both parties acted inappropriately and aggressively, which resulted in the breach of the code of conduct. I have submitted my recommendations to Mario Racki, the General Manager, and I am aware that both Ray and you have been spoken to regarding the incident and the need for professionalism in the workplace.

I understand that this was a challenging situation for both parties involved. However, I am optimistic that the phone call made by Mario to both parties has cleared up any misunderstandings and provided strategies for better communication in the workplace moving forward."

• [15] Rim Fire provided limited material in relation to the reasons for the termination of Mr Gray. It is the submission of Rim Fire that the position held by Mr Gray of Sales Representative was redundant and no longer required by the business. At the hearing before the Commission, Mr Monaco provided verbal submissions addressing why the business made the decision to make the position of Mr Gray redundant, based on his conversations with Mr Racki. I accept that, from the verbal submissions made by Mr Monaco on the day of the hearing, these reasons appear to be logical, rational, and not in contravention of the Act. However, Mr Mario Racki, the ultimate decision maker, did not provide a witness statement or evidence before the Commission to support these submissions.

Did Mr Gray exercise a workplace right within the meaning of s. 341?

• [16] I am satisfied that, on the evidence presented in this matter before the Commission, Mr Gray exercised a workplace right consistent with section 341 (1)(c)(ii) of the Act. Mr Gray lodged a formal complaint in writing to the Complaints Officer, Mr Monaco, on 12 March 2024 following the altercation with Mr Richards on 8 March 2024. Mr Gray lodged this complaint with Rim Fire as he felt that Mr Richards had acted in a manner towards him that was not consistent with the employee code of conduct.

Did Mr Gray exercise a workplace right within the meaning of s. 351?

• [17] I am satisfied that, on the evidence presented in this matter before the Commission, Mr Gray exercised a workplace right consistent with section 351 of the Act. Mr Gray emailed Mr Racki, on 14 January 2024, to outline his pre-existing medical issues and sought to come to an agreement over reasonable accommodations for him to attend the sales conference in Melbourne scheduled for February 2024. These were reasonable requests for which Mr Gray was happy to provide adequate medical evidence to the satisfaction of Rim Fire. Mr Gray offered to assist with additional financial cost of these accommodations and offered to take a day of annual leave to travel during business hours. Mr Gray did not receive a response in writing to this request, instead, on 19 January 2024, he was advised that he could not attend the sales conference with no further information provided.

Did Rim Fire take adverse action against Mr Gray?

• [18] Consistent with section 342(1) of the Act, adverse action is taken by an employer against an employee if the employer dismisses the employee, injures the employee in his or her employment, or alters the position of the employee to the employee's prejudice.

In this matter, it is not disputed that Mr Gray was dismissed by Rim Fire on 18 April 2024, when his employment was terminated by Rim Fire.

January Travel Request - Why was the adverse action taken?

• [19] I am satisfied that, on 14 January 2024, Mr Gray exercised a workplace right when he wrote to Mr Racki to explain his pre-existing medical condition and the accommodations he was seeking in order to attend the conference and do so in a state that allowed him to contribute.

• [20] Mr Gray was seeking one (1) additional night of accommodation in Melbourne and alternative flight times to manage his fatigue as he suffers from narcolepsy. In return, Mr Gray was offering to assist with the additional costs and take a day of annual leave to travel during business hours. These appear to be rational and in fact generous offers from Mr Gray. However, Rim Fire did not respond to Mr Gray's request, instead they told him he was no longer able to attend the sales conference, and his trip was cancelled. Rim Fire provided no reason for this.

• [21] Noting the rule in Jones v Dunkel,[1] in light of any alternative submissions or denial from Rim Fire, I accept that Rim Fire took adverse action against Mr Gray by cancelling his trip to the sales conference after he exercised a workplace right. Mr Gray was treated differently from his fellow team members who were still able to attend the sales conference, this in no doubt impacted Mr Gray's ability to build relationships in his sale representative position.

12 March Complaint - Why was the adverse action taken?

• [22] The primary consideration here is the operative reason for the termination of Mr Gray's employment with Rim Fire.

• [23] Mr Gray submits that his complaint about the conduct of Mr Richards led to Rim Fire making the decision that his employment had to end, as the two men were struggling to work together in a productive manner.

• [24] Rim Fire submits that the business made the position of Sales Representative redundant, as they decided to restructure the operations of the business in Western Australia. Rim Fire denies that the workplace complaint raised by Mr Gray played any part in its decision.

• [25] From the limited submissions and evidence provided by the parties, I have formed the view that Mr Gray and Mr Richards had a strained relationship in the workplace, it is clear neither man liked the other and they struggled to work together in a cooperative manner. If Ms Wrangles' evidence is accepted as being relevant (although she was not available for examination on her evidence), there was clearly tension between Mr Gray and Mr Richards with each having their views on each other's performance and conduct. As Ms Wrangles was not available for her evidence to be tested at Hearing, I have not considered her views of Mr Gray's conduct or Mr Richards' in isolation, only that she confirmed both men raised their voices and the meeting on 8 March 2024 became heated.

• [26] Rim Fire has failed to provide any notable evidence to discharge the reverse onus of proof that exists in this jurisdiction. The reason provided for Mr Gray's termination, as provided by Mr Monaco during oral submissions at the hearing, was that Rim Fire decided its Western Australian operation needed to be restructured for efficiency and productivity. One the face of it, this reason would appear sensible.

• [27] However, Rim Fire could not provide any supporting evidence to support this position. Had Rim Fire provided any relevant evidence, perhaps financial data or direct witness evidence, as to why they needed to restructure the Western Australian operation this may have assisted in discharging the reverse onus of proof; however, this was not done.

• [28] It was also made clear to the Commission during the hearing that Mr Racki was the sole decision maker on the termination of Mr Gray's employment with Rim Fire. Mr Racki did not provide evidence as to the operative reason for Mr Gray's termination. The Commission does not have any understanding as to the state of mind of the decision maker (Mr Racki), when he decided to terminate Mr Gray's employment.

• [29] Mr Racki signed the termination letter of Mr Gray, but he did not tell Mr Gray that he was dismissed. In the termination letter, Mr Racki states "it is also very important that a job is not made redundant for discriminatory reasons or reasons that include discriminatory reasons". However, Mr Racki did not provide a witness statement or attend the hearing to provide explanation regarding his decision-making process or the operative reason for the dismissal of Mr Gray. In conclusion, I find that this line inserted into the termination letter is not adequate to discharge the reverse onus of proof.

• [30] On the balance, Rim Fire has not discharged the onus of establishing that the reasons for the termination of Mr Gray did not include reasons which contravene the provisions of Part 3 - 1 of the Act.

• [31] I have concluded that the adverse action taken against Mr Gray were because of the following protected reasons:

• the exercise of Mr Gray of a workplace right to make a workplace complaint against a fellow employee Mr Richards, and

• Mr Gray outlining his pre-existing medical condition to Mr Racki and Rim Fire then uninviting Mr Gray to the sales conference.

• [32] Directions will be issued in due course to deal with the remedy of the application.

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