Electrical Trades Union of Australia, New South Wales branch (o/b Allan Grice) v Nepean Blue Mountains Local Health District

Industrial Relations Commission (NSW)|2015-07-29

Background

The Electrical Trades Union of Australia, New South Wales branch, on 23 December 2014, filed an unfair dismissal claim, pursuant to section 84 of the Industrial Relations Act 1996 (the Act) in relation to the alleged unfair dismissal of its member, Allan Grice, by the Nepean Blue Mountains Local Health District (the Respondent).
Mr Grice commenced employment with the Respondent on a permanent full-time basis in the capacity of Electrician from May 2003 and as an Electrician Leading Hand from 27 November 2007 pursuant to the terms and conditions of the Public Health Service Employees Skilled Trades (State) Award.
In 2010, allegations of bullying and harassment were made against Mr Grice. Those allegations were not sustained due to a lack of evidence. Mr Grice was reminded of his obligations as a Leading Hand under the NSW Health Code of Conduct.

The Allegations

The allegations which the Investigators found were substantiated were as follows: Allegation 1 - Granting of unauthorised access to the Car Park CCTV footage confirmed that Mr Grice had granted unauthorised motor vehicles access to the maintenance car park on three different occasions. This behaviour contravened a directive issued to staff via memorandum on 21 and 22 July 2014 and also breached local car parking policy and signage displayed at the entrance to the car park. Allegation 2 - Misuse of Resources CCTV footage confirmed that Mr Grice had removed Hospital resources (being the retriever) from the premises. Mr Grice confirmed to the Interviewers that he removed the retriever without prior authorisation to use at his personal residence. In addition, CCTV footage confirmed that Mr Grice had been accessing the emergency car park without a car parking permit. During his interview, Mr Grice stated that he was not familiar with the policy, but later indicated that he was on the waiting list for car parking but was never granted a pass, acknowledging that there was a governing practice in gaining access to parking. Allegation 3 - Bullying and Harassment Mr Grice had engaged in unprofessional behaviour, bullying and harassment. Mr Grice had failed to follow reasonable directives from senior staff to clearly communicate about jobs, to respond to verbal and written requests and to communicate in a professional behaviour. In addition, Mr Grice had acted in an abusive, aggressive, loud, intimidating and angry manner towards other staff members. Allegation 4 - Engaging in unsafe practices Mr Grice had engaged in unsafe work practices when conducting work on live machinery, failing to complete a risk assessment and adhere to control measures and job steps to reduce risk.

Code of Conduct

The sections of the Code of Conduct allegedly breached are set out hereunder: 4.1 Promote a positive work environment Staff must: 4.1.1 … 4.1.2 treat all other members of staff (irrespective of whether they are at the same level of seniority, or more senior or junior) in a way that promotes harmonious and productive working relationships, and a collaborative teamwork approach; 4.1.3 not bully or harass other staff, patients or members of the public, or discriminate against them on the basis of their sex, race, ethnic or ethno-religious background, marital status, pregnancy, disability, age, homosexuality, transgender or carers' responsibilities; … 4.2 Demonstrate honesty and integrity Staff must: 4.2.1 avoid situations which may give rise to pecuniary or other conflicts of interest, and should any conflicts or possible perceptions of such conflicts arise declare them immediately to their manager; … 4.2.3 ensure that their actions and decisions are not influenced by self interest or considerations or personal gain or other improper motives; … 4.3 Acting professionally and ethically Staff must: 4.3.1 …. 4.3.4 carry out their duties diligently and efficiently; … 4.3.7 comply with all lawful and reasonable directions given by their managers or other members of staff authorised to give them; 4.3.8 comply with all applicable NSW Health policies and procedures, and those of the NSW Health agency where they work; 4.3.9 if professionally registered: - report all changes in professional registration (such as the imposition of conditions on registration) to their manager; - maintain and enhance their professional standards and skills, and keep up to date with best practice; - observe all laws, professional codes of conduct and ethics relating to their profession; … 4.3.11 act in a way which protects and promotes the interests of NSW Health and the particular NSW Health agency where they work; … 4.3.14 carry out their duties in a politically neutral manner. 4. Use official resources lawfully, efficiently and only as authorised Staff must: 4.4.1 …. 4.4.3 follow any special directions or conditions that apply to the authorised use of official resources such as the use of cars for non-official purposes; …

Submissions The submissions made by Mr Robinson on behalf of Mr Grice may be summarised as follows:

The Respondent's witnesses included 4 Managers - namely, Mr Prammer, Ms Bryant, Ms Howling and Ms Crowe - all of whom admitted to their limited involvement with Mr Grice as they were acting in their current roles when they became involved with allegations against Mr Grice.
The Respondent relied on the evidence of an Electrician, Mr Hollis, who was supervised by, and had personal issues with, Mr Grice.
The Respondent also relied on evidence from Mr Anthony Hooke who became Acting Supervisor in May 2014. Mr Hooke admitted that he had issues with Mr Grice prior to taking on that role.
The Respondent contended that Mr Grice breached the Code of Conduct Policy Directive. Mr Robinson submitted that the Respondent's Managers did not comply with Clause 2.3, What Happens if there is a breach of the Code, when addressing the alleged breaches by Mr Grice and when considering the possible outcomes.
Mr Hooke gave evidence in relation to the alleged failure of Mr Grice to respond to emails. It was pointed out that Mr Hooke failed to give evidence that all of the requests were in fact completed and procedures followed with other involved parties.
Mr Grice's training record demonstrated that he attended a NBM Basic Computer Skills course on 2 May 2014. What it failed to reveal was that it was a one-hour basic course which did not address the alleged skills gap in emails.
Mr Grice denied any intentional mistreatment of Mr Hooke and there was no evidence before the Commission to support that allegation.
The evidence indicated that the allegations by Mr Hollis and Ms Bryant of bullying by Mr Grice against the former over a 5-year period had previously been investigated and found unsubstantiated.
The alleged effect of Mr Grice's actions on Mr Hollis' medical condition was unsubstantiated. The evidence demonstrated that Mr Hollis had issues with past leading hands and had submitted complaints about them also regarding work allocation and performance.
Mr Hooke alleged that he had "run-ins" with Mr Grice. He did not allege that he was being bullied until 17 August 2014.
Mr Prammer, Manager Maintenance, gave evidence that he never felt harassed nor observed harassment of anyone by Mr Grice.
Mr Grice claimed that he has always promoted a positive work environment in accordance with the Code of Conduct. He denied being bullied or ever intentionally, or accidentally, bullying Mr Hollis or any other staff member.
Mr Grice accepted that he breached the Car Park Policy up until a memorandum was brought to his attention. Thereafter, and until his termination he complied fully with the policy and parked off premises. He pointed out that staff members, including managers, had customarily allowed each other access to car parks from time to time as Nepean Hospital was experiencing major works which resulted in temporary staff/contractor car park relocation.
No evidence was before the Commission evidencing personal gain or pecuniary interest nor has the Respondent ever provided the Applicant with documentation itemising car parking charges owing.
The Respondent relied on the evidence of Messrs Hook and Hollis alleging that Mr Grice failed to carry out his duties diligently and efficiently with particular regard to responding to telephone calls and emails. Mr Hooke did not provide any evidence of his allegations. Mr Grice contended that pressure of work in the electrical workshop meant that he usually responded late in the day by telephone. In fact, Ms Bryant confirmed that Mr Grice had no former performance related complaints against him.
Mr Hooke gave evidence of incidents involving physical aggression by Mr Grice using a trolley and contact in the PECC room. There was also evidence of him throwing "nurse call switches". It was pointed out that the evidence of Mr Steltenpool, Mr Walker and Ms Stephens refuted those allegations.
Mr Hollis made an allegation regarding the stacking of boxes on his bench. He failed to establish that he saw Mr Grice doing so and conceded that other parties also delivered boxes to the workshop.
All matters alleged by the Respondent, with the exception of those raised by Mr Hollis, would, if proven, constitute a breach of clause 4.3.7 of the Code of Conduct. Mr Grice submitted that he complied with all lawful and legal directions given to him by the Respondent. He relied on the fact that he had no previous warnings in relation to breach of the said provision and complied with the direction in relation to the car park once he received it.
Mr Grice submitted that he did not breach clause 4.3.8 and 4.3.9 in relation to compliance with all NSW Health Policies and Procedures, and those of the NSW Health Agency where they work, with the exception of the Nepean Car Parking Policy. The latter, on its own, cannot form a valid reason for termination.
Mr Grice pointed out that the evidence of Messrs Steltenpool and Walker refuted the evidence of Messrs Hooke and Hollis in regard to the nurse call handsets and stacking of boxes on benches.
Mr Grice submitted that he had acted in a politically neutral manner throughout his employment.
The Respondent relied on the evidence of Mr Hooke in relation to the alleged misuse of the electrical workshop telephone. Yet Mr Hooke was unable to identify or provide reasonable evidence of the breach. Mr Hooke took issue with being put on loudspeaker. Mr Grice explained that he placed the workshop telephone on loudspeaker from time to time usually whilst undertaking repair work on the bench.
Procedural fairness was not accorded to Mr Grice. Firstly, the decision maker, Mr Beatty, who was signatory to the termination letter, refused a request to meet with Mr Grice and declined to provide a reason for such refusal; secondly, Mr Grice insisted that he maintained honesty in his responses. A finding was made by the Investigators that some of the Mr Grice's responses were untruthful, nevertheless, they were never brought to his attention and the Investigators failed to give weight to the integrity of his remaining responses once it was determined that untruths were being told; thirdly, the scope of the investigation was narrow in that some employees, relevant to the investigation, had not been interviewed - namely Messrs Steltenpool, Stephens, Brook, Ellery and Bounds, and, fourthly, when considering the work history of Mr Grice, management did not apply the principles contained in its policy, Managing the Performance. It did not consider his unblemished employment history or his improved performance as a result of a Performance Improvement Agreement.
In conclusion, it was submitted that the dismissal of Mr Grice was harsh, unreasonable and unjust. The submissions of the Respondent may be summarised as follows:
The Commission should give little weight to the evidence of Mr Grice's witnesses most of which was opinion and hearsay evidence. Most of his witnesses admitted that they had spoken to him about the proceedings and therefore their evidence was tainted by collusion. Mr Brook admitted that Mr Grice had asked him to prepare a statement about Mr Hooke's behaviour. Mr Brook also admitted that he did not have any personal knowledge about why Mr Grice was dismissed. It was submitted that it demonstrated a deliberate attempt by Mr Grice to direct attention away from the matters in issue in these proceedings by painting Mr Hooke in a negative light.
Mr Grice submitted that he complied with the car park policy from the time of the investigation until his termination. The Respondent submitted that it was irrelevant. He had breached the policy in 2014 and admitted, during cross-examination, that he allowed access to Mick Cooper after he ceased employment with the Respondent.
Mr Grice also submitted that he complied with all lawful and legal directions given by the Respondent. That was refuted by the evidence of Mr Hooke, Mr Prammer, Ms Hoyling and Ms Crowe.
Mr Grice further submitted that he never intentionally bullied Mr Hollis. It was submitted that whether it was intentional or otherwise was irrelevant. What was relevant was that his consistent, unreasonable behaviour towards Mr Hollis created a risk to health and safety.
The evidence of the Respondent's witnesses clearly established that the contention by Mr Grice that he "always promoted a positive work environment in accordance with the Code of Conduct" was incorrect. Ms Hoyling gave evidence that: I believe that Mr Grice … exhibited behaviours that were consistent with being at times belligerent, rude, a poor team player, a poor communicator at times and I found him at times to be disrespectful.,… He doesn't espouse our CORE values. I don't trust him and I believe that the culture of our team will deteriorate if he comes back, and I'm fearful of that.
There is no fixed rule as to what may constitute misconduct nor is there a fixed rule defining the degree of misconduct that would justify dismissal: Clousten & Co v Corry [1906] AC 122 [at 129]. The test to be applied in determining misconduct was laid by the Privy Council in Jupiter General Insurance Co Ltd v Andeshire Bomanji Shroff [1937] 3 All ER 67 [at 74], "[the test] must vary with the nature of the business and the position held by the employee, and decisions in other cases are of little value".
The Respondent submitted that despite providing repeated education and training to Mr Grice in appropriate workplace behaviour in order to modify his behaviour, it received a number of formal complaints from a number of employees about his continued display of unprofessional, aggressive and intimidating behaviour in the workplace. His repeated refusals to follow lawful and reasonable directions were nothing short of disobedience, were wilful and deliberate action and represented serious and repeated breaches of the NSW Health Code of Conduct and justified dismissal: Adami v Maison de Luxe Ltd (1924) 35 CLR 143. He refused to acknowledge his behaviour and its disruptive influence on the workplace. His unwillingness to change his behaviour compromised the Respondent's ability to meet its duty of care to all employees in respect of their health and safety and its ability to provide a workplace free from harassment and intimidation.
The Applicant was untruthful in his responses during the investigation and in his account of events during cross-examination in these proceedings. That conduct was also in breach of the NSW Code of Conduct which requires that he demonstrate honesty and integrity. If an employee cannot be trusted to act honestly then the conduct is sufficient to warrant summary dismissal. In particular, Mr Grice was evasive and unreliable in regards to questions about his mobile phone records and his responses were at odds with the records produced by the Respondent as part of its evidence.
As the Applicant did not acknowledge his conduct, despite all attempts by the Respondent to educate and train him, it can reasonably be held that he is unlikely to be able to alter his ingrained attitudes and behaviour. The Respondent had lost trust and confidence that he will not engage in such conduct again, or that he will comply with its policies and procedures or that he will comply with the lawful and reasonable directions of his managers.
In conclusion, the dismissal of Mr Grice was justified and proportionate. It was not harsh, unjust or unreasonable given that he had displayed persistent and continuing disobedience and dishonesty without insight or motivation to improve or change his behaviour in the workplace.
If, however, the Commission considers that the dismissal was harsh, unjust or unreasonable, then reinstatement and re-employment are not practical remedies: Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 [at 105-108. If compensation is to be awarded, therefore, it is open to the Commission to discount the amount of compensation if it is satisfied that the conduct of the Applicant was destructive of the employment relationship between the parties.
In addition, it was pointed out that despite Mr Grice's oral evidence that he made several unsuccessful events to find other employment to mitigate his loss, there was no proof produced to evidence such efforts. The Respondent submitted that his skills were not so highly specialised as he made out in his evidence as to preclude him from finding suitable alternative employment. The evidence of Mr Prammer and Mr Hooke confirmed that he was able to secure employment as an electrician in another industry.

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

Mr Robinson did not deny that Mr Grice was provided with reasons for his dismissal. It was argued, however, he was not provided with an opportunity to apply for, or submit his case in writing, for reinstatement or re-employment.
The Respondent pointed out that despite the above statement, Mr Grice had conceded in his Outline of Submissions that he had been provided with reasons for his dismissal. In addition, aside from these proceedings, the Applicant had not sought reinstatement or re-employment.
It is not up to the Respondent to "invite" a dismissed employee to seek reinstatement or re-employment. If Mr Grice had sought either of those two remedies, the Commission would have to take into account the reasons provided by the Respondent for its refusal. That consideration does not arise in the present proceedings because Mr Grice did not seek reinstatement or re-employment prior to filing a section 84 claim.

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

It was contended on behalf of Mr Grice that he was first made aware of the likelihood that the investigation may lead to his dismissal during the investigation process.
The Respondent submitted that the allegations against Mr Grice had been the subject of a thorough investigation during which he was afforded sufficient opportunity to respond to them. They were found to have a basis in fact. Mr Grice had been reminded of his obligations in regard to the NSW Code of Conduct on a number of occasions in the period between 2009 - 2014 and had been provided with training in relation to appropriate standards of behaviour.
It is noted that on 28 August 2014, Mr Grice was formally advised that an investigation into the allegations of inappropriate behaviour was being undertaken. The notification relevantly included that: These allegations are regarded as serious … If proven, your actions would constitute misconduct, a breach of the NSW health Code of Conduct … …Following consideration of your response, appropriate disciplinary action may be taken, including counselling, written warnings or the termination of your employment.
On 14 October 2014, Sally Sammut, Workforce Executive Advisor, Workforce People and Culture, wrote to Mr Grice providing details of the investigation process and annexing 19 attachments which included details of the allegations, witness statements, the Code of Conduct and the various relevant Practices. Mr Grice was also provided with CCTV footage evidencing some of the allegations.
Mr Grice was invited, on 25 November 2014 to put forward, by 1 December 2014, any mitigating circumstances he wished to have considered regarding the recommendations contained in the Investigation Report which recommended that he terminated on the basis of misconduct. Mr Grice responded on 28 November 2014 denying that he had behaved in the manner alleged.
There can be no doubt that Mr Grice was made aware of the allegations against him prior to the commencement of the investigation process and was kept informed at all times of the progress of the matter.
Upon receipt of a verbal complaint on 10 July 2014 from the Car Parking Administrator that a staff member was inappropriately accessing the maintenance car park, the CCTV footage was viewed and it revealed that Mr Grice had granted access to a physiotherapist on 3 occasions and a former employee on one occasion. It also revealed that Mr Grice had been accessing the emergency car park for the purpose of parking his motorcycle without a permit and without paying for parking.
The parking areas in question were gated areas and had relevant signage displayed in relation to who was eligible to park there and the fact that payment was required to be made prior to returning to one's vehicle.
During the interview, Mr Grice stated that he was not familiar with the policy. However, he went on to acknowledge that there was a governing practice in gaining access to car parking, that he was on a waiting list for car parking and that he was never granted a pass.
In fact, messages had been left for Mr Grice on three occasions in late 2013 offering a car parking permit but he failed to respond to the telephone messages left for him and, as a result, he was removed from the waiting list. That, in itself, is a further confirmation of the allegation that Mr Grice failed to respond to his voice messages.
The CCTV footage also revealed Mr Grice getting into a van and leaving the car park with a retriever (a claw type device that picks up items) from the workshop. Mr Grice confirmed during the interview that he had removed the retriever, without authorisation, to use at his residence. Mr Grice said he took it home and returned it a number of times and that it was back at the workplace. Whether it was returned or not cannot be ascertained in the absence of an audit.
During the interview, Mr Grice stated that he was unaware of whether there was voicemail on his mobile telephone and that he could not recall getting voice messages on his phone. Nevertheless, the telephone records produced in the Commission identify that the majority of his calls in the period February 2014 - August 2014 were to 101 - the voice messaging retrieval service.
Mr Anthony Hooke, Plumber, was acting in the role of Maintenance Supervisor for a period of 6 months from 3 March 2014. He gave evidence in the proceedings of a number of issues he had with Mr Grice which he had diarised. Mr Hooke summarised those issues as follows: 1. Mr Grice would refuse to respond to his emails; 2. Mr Grice would act in a rude and uncooperative manner during phone calls with him - including refusing to answer his telephone calls, speaking over him on the telephone, hanging up on him and putting him on speakerphone and then making fun of him and/or walking away from the telephone; 3. Mr Grice would refuse to get back to him with information that he requested and sometimes would refuse to accept jobs from him; 4. On occasion, Mr Grice was physically aggressive with him. He shoulder barged him, threw items at him, ran over his feet with a trolley, elbowed him and poked him in the face with a pencil in the vicinity of his eye; and 5. Mr Grice would undermine him by telling people things about him that were not true or by speaking about him in a dismissive manner.
Mr Hooke also summarised what he considered to be inappropriate behaviour by Mr Grice which he had witnessed: 1. Mr Grice throwing around hospital property, being the "nurse call" handsets; and 2. Mr Grice breaking and throwing fluro tubes, which were supposed to be placed into a special bin for special disposal;
Mr Hooke elaborated on both the personal and general issues summarised above both in his statement and in his oral evidence.

Whether a warning of unsatisfactory performance was given before the dismissal

Mr Robinson contended that Mr Grice had not received any prior warnings for unsatisfactory work performance or unsatisfactory behaviour constituting breaches of the Respondent's policies and directives. The diary notes of Messrs Hooke and Prammer were dismissed as mere notes on discussions with Mr Grice who was not made aware that he was being verbally counselled.
Mr Robinson pointed out that the investigators had considered 11 matters referred to it by the Respondent. The Investigators only identified one instance during which it was felt that Mr Grice told untruths. Whilst dishonesty may be sufficient to warrant dismissal without notice, it was not relevant in the present circumstances because Mr Grice had admitted the breach of the car park policy and had ceased breaching the policy.
The Respondent conceded that no written warning of unsatisfactory behaviour had been issued to Mr Grice. However, Mr Grice had been issued with a number of informal warnings and reminders about his unacceptable behaviour prior to his dismissal. Mr Grice was also aware that he had been the subject of investigations into allegations of bullying on a number of occasions. Although the allegations had not been sustained, he had received training in the NSW Health Code of Conduct and Respectful Workplace Behaviour.
The Respondent submitted that a written warning was not required in the circumstances which led to his ultimate dismissal. He was provided with details of the allegations against him, he was notified of the investigation, he was afforded procedural fairness during the investigation, he was advised of the consequences of a positive finding against him and provided with an opportunity to respond to the allegations and, later, to show cause as to why his employment should not be terminated.
Mr Grice had received training in the appropriate standards of behaviour required pursuant to the NSW Code of Conduct and was aware of the consequences of breach of such standards.
In conclusion, the Respondent relied on Electricity Commission of NSW trading as Pacific Power v Nieass (1995) 81 IR 46 as authority for the principle that a reasonable employee should be trusted to act honestly and therefore dishonesty may warrant summary dismissal: We reject as industrially appropriate any notion that adult, responsible and senior employees are entitled to a warning that they might be dismissed if they continue to misconduct themselves within employment dishonestly. No employee of ordinary understanding and certainly not employees of mature age, substantial classification and seniority, need to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told that they should be careful in crossing the street.
Mr Grice relied on his personnel record which indicated that he had not received any formal or informal warnings regarding his conduct or performance. It is noted that investigations conducted into allegations made against Mr Grice over the years revealed that the complaints could not be sustained. Those previous incidents have not been taken into consideration in arriving at this decision.
What has been taken into consideration is the fact that Mr Grice had received re-training in the NSW Health Code of Conduct in 2009, 2010, 2011 and as a member of the Total Asset Management staff as recently as January 2014. In addition, he was reminded of his obligations as a Leading Hand in 2010; he was required to attend training on "Respectful workplace and Code of Conduct" in June 2011 and as recently as May 2014.

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

Mr Robinson submitted that Mr Grice has updated his skills in relation to emails and phone usage since his termination and that would support improved performance as a Leading Hand Electrician.
Mr Hooke had personal issues with, and displayed provocative behaviour towards, Mr Grice since he took on the role of Acting Maintenance Supervisor. Mr Grice had an unblemished performance record prior to that appointment. It was noted that Mr Hooke was no longer in that role and therefore reinstatement or re-employment of Mr Grice was feasible.
The Respondent submitted that if the Commission was to find in favour of Mr Grice, then reinstatement and re-employment would not be feasible as the employment relationship had irretrievably broken down. The Respondent had no confidence in his ability to comply with workplace policies and procedures, particularly those relating to appropriate workplace behaviour.
The Commission was urged to note the evidence of Mr Grice's supervisors which rejected his evidence that he positively impacted the workplace. It was submitted that Mr Grice still does not understand that his colleagues perceived his behaviour as unprofessional, dishonest, aggressive and intimidating. That lack of insight and understanding was of grave concern to the Respondent given the amount of training and education provided to Mr Grice, as recently as January 2014, on appropriate workplace behaviour and given the Respondent's duty of care to its employees at both common law and under workplace health and safety laws: Ian Ueckert and Australian Water Technologies Pty Ltd [2000] NSWIRComm 123 (25 July 2000): Employers must act to ensure a safe workplace - free of intimidation and harassment. A failure to do so might well be held to be in breach of the Occupational Health and Safety Act for which there are substantial penalties.
The Respondent was particularly concerned at the impact of Mr Grice's behaviour on the psychological wellbeing of others.
The Commission notes the evidence before the Commission regarding the impact Mr Grice has had on personnel in the workplace, particularly given that he was employed in the capacity of leading hand with supervisory duties over subordinates.
Mr Prammer, Ms Bryant and Ms Hoyling, members of management, gave evidence that Mr Grice's return to work would have a negative impact on the workplace. Ms Bryant gave evidence as follows: A: …. Based on previous experience in my role as the HR manager, it would likely be that there'd be an increased level of anxiety amongst the staff and that interactions and performance of staff would be directly affected by his presence. The culture of undermining management would likely return and the level of bullying would exist and increase. The collaboration and openness of teams would be affected and the level of respect that is currently being developed would be affected should he return to the workplace. During Mr Grice's tenure as the leading hand, the workplace I considered to be quite toxic.
Ms Crowe, General Manager of the Mental Health Unit, echoed that opinion: Q: When you were manager, did you have any concerns about Mr Hollis' health or wellbeing? A: Yes. Q: Why did you have those concerns? A: Mr Hollis exhibited signs of someone who was being bullied and harassed. Q: And can you describe on what basis do you make those observations? A: Well, my background as a clinician would indicate that some of the symptomology that was exhibited by Mr Grice (as said) was around being unable to carry out his work, he was very stressed while at work and on one occasion he was so upset he was crying in my office. Q: Did Mr Hollis ever advise you as to what has caused him to feel this way? A: There were a number of complaints around allegations against Mr Grice around bullying specifically with Mr Hollis.
Mr Hollis gave evidence in re-examination of the effect the conduct of Mr Grice had on his health: Q: What effect did Mr Grice's behaviour have on your health? A: Profound. For a start, in that five year period I was diagnosed with diabetes, I'd suffered emotionally, I was running this roller coaster of dread to come to work every day, and I felt I was alienated in the workshop and I came to the conclusion on some days that it'd be better for me to quit and get away from the problem. Q: Since Mr Grice no longer works at the hospital, how would you describe your health is now? A: Better, because the people that have taken Allan Grice's place are more easier to get on with and they've got no preconceived ideas of whom I am or what I am, so it works very well at this point in time. I've always been an open person, willing to help and assist other people, and I hope other people will reciprocate.
Mr Grice was employed as leading hand electrician prior to his dismissal. He, therefore, had a supervisory role to play in relation to subordinate employees as well as an obligation to set an example by his own performance and conduct.
The Commission is required to determine whether the dismissal was harsh, unreasonable or unjust. In Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 465, McHugh and Gummow JJ stated: It may be that the termination is harsh but not unjust or 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.
The allegations against him are sustained. Considered individually, those allegations, in my view, would not have led to dismissal of his employment without a previous record of warnings in relation to conduct/performance. However, considered in tandem with the amount of training provided over the years in relation to the Code of Conduct and other matters, I do not find that the termination was unjust.
Was the dismissal harsh, given its consequences for the personal and economic situation of Mr Grice? The Commission notes that Mr Grice did not provide any evidence of any attempts to mitigate his losses following his dismissal. The evidence goes against his submission that his work as an electrician was so specialised that he was unable to find similar work elsewhere.
Was the dismissal unreasonable? Despite the previous history of allegations against him, none were sustained in previous investigations. Therefore, Mr Grice had a "clean" personnel record. Given that he had told some untruths in relation to some matters which were clearly refuted by CCTV evidence, it is understandable that Mr Grice would have been found guilty of the other allegations "on balance of probabilities". Nevertheless, there is no clear cut evidence that Mr Grice stacked boxes on a fellow employee's table or that he left a condom on that same employee's table and other similar conduct which may be classed as bullying and harassment behaviour. On that basis, the Commission is of the view that the dismissal was unreasonable.
Nevertheless, on the evidence before the Commission as to the current climate in the Total Asset Management department since Mr Grice's departure and the concerns held by both management and subordinate employees as to the negative impact he had on the workplace, the Commission has formed the view that neither reinstatement nor re-employment are feasible in the current circumstances.
In considering the issue of monetary compensation, it is noted that Mr Grice was found guilty of breaches of the Code of Conduct as detailed above. He had not produced any evidence of attempting to mitigate his losses. In addition, the Respondent had, over and over again, attempted to train Mr Grice in relation to the requirements of the Code of Conduct which it was subsequently established that he had breached in a number of respects. The monetary compensation, therefore, would be minimal in the circumstances.

Order

Having regard to the provisions of Section 84 of the Industrial Relations Act 1996, the dismissal of Mr Grice is held to have been unreasonable.
The Respondent shall pay to Mr Grice a sum equivalent to five weeks' pay calculated at the rate of pay at the time of his dismissal within 21 days of today's date.

COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2016

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