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[2019] FWC 4877
General information, not legal advice.
Fair Work Commission
2019-07-12
Original judgment source is linked above.
s.394 - Unfair dismissal
[1] Mr Gary Matthews was employed on a casual basis by the San Remo Fisherman's Co Operative, commonly known as "the Co-Op," and has worked there since 2001. The Co-Op is involved in a range of activities, one of which includes daily feeding of the local pelicans. It is noted in this context that the pelicans at San Remo are often overshadowed by their more famous friends, the world's smallest penguins, who inhabit the island adjacent to San Remo. However, the pelicans and their daily feeding sessions are a popular attraction in their own right.
[2] The feeding sessions take place at twelve noon each day and are conducted by various employees engaged on a casual basis. They have the unusual but appropriate job title of "pelican feeder." When first involved in this work Mr Matthews was employed on a number of days each week. However, in more recent times he has worked only on Tuesdays, meaning that he was employed on one day each week for one hour, commencing at 12 noon and concluding at 1.00 pm. At the time he was dismissed he was receiving an hourly rate of $29.00, meaning that his total weekly income was also $29.00.
[3] Mr Matthews is also a member of what is known as the Pelican Research Group. It is a voluntary group which looks to support the welfare of the local Australian Pelicans ("Pelecanus conspicillatus") who frequent the San Remo region. They are, apparently, a little understood and rarely studied species of bird. Pelicans are often also the subject of jokes, primarily related to the size of their bill, although the American poet and humourist, Dixon Lanier Merritt, arguably viewed them more favourably when he wrote:
[4] The Pelican Research Group is not associated with the Co-Op, however, a number of the pelican feeders employed by the Co-Op are also members of the Pelican Research Group. In addition, the pelican feeders previously sold badges at the conclusion of the feeding sessions, with the revenue earned going entirely to the Research Group to assist in its work.
[5] Mr Matthews was dismissed from his employment on 5 September last year after being involved in an argument on the previous day with Mr Paul Mannix, the General Manager of the Co-Op. He subsequently lodged an unfair dismissal application, and this decision deals with that application.
[6] Mr Matthews' wife, Mrs Joan Matthews, appeared on his behalf. Mr Mark Ritchie from Workplace Wizards was given permission to appear on behalf of the Co-Op under s.596(2)(a) of the Fair Work Act 2009 (Cth) ("the Act") as the matter involved some complexity and his involvement might enable it to be dealt with more efficiently.
[7] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied "the dismissal was harsh, unjust or unreasonable." Section 387 continues to provide that the Commission must take into account the following considerations in determining whether a dismissal was harsh, unjust or unreasonable. It states:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant."[1]
[8] The Commission is therefore now required to determine whether Mr Matthews' dismissal was "harsh, unjust or unreasonable" taking into account the matters set out in s.387.
[9] Mr Matthews has been involved in feeding the pelicans at San Remo since 2001. While the pelican feeders are employed and paid by the Co-Op they previously raised additional revenue from donations received from tourists and visitors attending the feeding sessions. Seventy percent of this money was retained by the Co-Op, with thirty percent given to the pelican feeders to purchase equipment used during the feeding sessions, and to assist in activities related to the support and welfare of the pelicans. This arrangement was based on a 'handshake agreement.' In 2009 Mr Matthews was involved in the formation of the Pelican Research Group, and it subsequently received permission from the Co-Op to sell badges to raise additional funds for research into the pelicans. This revenue was retained entirely by the Pelican Research Group.
[10] Mr Paul Mannix commenced as the General Manager of the Co-Op in 2015 and for a period of time the above arrangements continued unchanged. However, in April last year Mr Mannix asked Mr Matthews to provide details about the donation money revenue and expenses. This was provided to him. He also asked for financial details about the badge sales, but Mr Matthews declined to provide this information. The pelican feeders were then directed by Mr Mannix in July to stop placing donation bins out during the feeding sessions, and to stop selling badges. This direction was complied with. Mr Mannix also asked again for details about the amount of money raised from selling badges, but Mr Matthews told him it had been agreed by the members of the Pelican Research Group that this information was not to be disclosed.
[11] On 4 September Mr Matthews carried out his regular Tuesday pelican feeding duties. At the conclusion of his shift Mr Mannix asked to meet with him. He spoke again about the pelican feeders not selling badges, and again requested financial details about the revenue earned by the Research Group from these activities. He also spoke about different uniforms for the pelican feeders, and the preparation of a new handbook to assist the work of the employees involved in pelican feeding.
[12] Mr Matthews then said that one of the visitors at a recent feeding session had asked if he could buy a badge. Mr Matthews asked Mr Mannix if this person was a "stooge"[2] that he had arranged to attend the session. Mr Mannix became upset at this point and both men swore in the conversation that followed. However, Mr Matthews immediately apologised and left the meeting soon after, as Mr Mannix was getting angrier. As he left Mr Mannix said "there will be repercussions."[3]
[13] On the following evening Mr Matthews received an email from Mr Mannix at 9.14 pm informing him that his services as a pelican feeder were no longer required. It stated:
Thank you for meeting with me at the Co-op yesterday.
From our discussion it is clearly evident that you still have a problem with my input in the Pelican Feeding.
I understand why you feel like this, as you have been looking after the pelican team for a long time, with negligible involvement from previous management.
Nevertheless, for a significant period of time, your conduct has been unacceptable.
I have given this situation a lot of thought over a long period of time, with multiple attempts to communicate respectfully with you. You deserve recognition and thanks for the effort that you have put in to the Pelican Feeding, but this does not excuse your ongoing behaviour which was evident again yesterday.
I wish that you could've come to yesterday's meeting with a more positive attitude. Despite continued requests to change, your conduct remains unacceptable and your attitude yesterday was more confrontational than ever before. Therefore I am writing to let you know that your services are no longer required at SRFCO and your current shifts will be filled by other staff. I understand that you have already asked for a fill in for next Tuesday - Emma has accepted this shift.
You ask what award are the pelican feeders paid under.
As you would know, Pelican Feeders are not paid under any award.
Yourself and Christian set up an agreement together many years ago, under which staff were given a flat rate (prior to this it was volunteer work for over twenty years).
[14] Mr Matthews sent an email in response on the following day, which was directed to both Mr Mannix and the Board of Directors of the Co-Op. It stated:
"I write in reply to your email with my Right of Reply.
I accept your comment that I swore once at you during Tuesday's meeting September 4th, however you have failed to acknowledge that I respectfully apologised. Also at the same meeting you swore at me in anger calling me a f---ing idiot without an apology and with threats that there would be repercussions. I then left the Meeting very quickly as you could not control your anger.
I was disappointed with your email of dismissal after nearly eighteen years of dedicated service. I look forward to a reply from the Board of Directors of the San Remo Fisherman's Co-Operative as the employer of you the Manager and myself.
[15] Mr Matthews did not receive a reply to this email. On 24 September he received a further email from Mr Mannix indicating that he wanted to continue to work with him in relation to pelican research, and offering to reimburse him for monies expended previously. It stated:
I have just got back from leave today and thought it might be a good time to contact you and follow up with you on a couple of things:
[16] However, Mr Matthews elected not to reply to this email as he had by then lodged his unfair dismissal application.
[17] Mr Matthews indicated in cross-examination that he generally had a good relationship with the management and staff at the Co-Op during the 18 years he was employed. He also carried out a range of additional duties during this time, such as training new staff to take on the pelican feeding duties, and purchasing necessary equipment. He also had a good relationship with Mr Mannix in the initial period after he was first employed as the General Manager of the Co-Op.
[18] Mr Matthews and the other pelican feeders began selling badges at the feeding sessions in 2009. This was done at the conclusion of the sessions after the feeding was completed. However, Mr Mannix told him during the course of 2017 that he wanted to make some changes to these arrangements, and later advised that he was going to stop the badge selling and the collection of donations. Mr Matthews was disappointed by these decisions, and the way Mr Mannix went about implementing them, particularly as he became aware of the changes while he was on leave. However, he accepted that he was required to comply with these new arrangements.
[19] The members of the Pelican Research Group then collectively agreed that it was not appropriate to provide Mr Mannix, or the management of the Co-Op, with details about the revenue earned from the badge sales because it had nothing to do with the business of the Co-Op. However, they were happy to disclose the revenue earned from the donations because this was distributed in accordance with the prior agreement entered into with the Co-Op. Mr Matthews said he was not aware at the time that Mr Mannix apparently wanted this information as he believed it was required to enable the Co-Op to comply with various regulatory requirements.
[20] He also agreed in cross-examination that he had sworn in the discussions with Mr Mannix on 4 September, but his comments were not directed at him, and he was not able to now recall what he had been upset about. He also disagreed with the suggestion that asking a question about a "stooge" being placed in the crowd was disrespectful, and he didn't pursue the matter any further after Mr Mannix's denial. He also apologised immediately for the language he had used.
[21] He also denied in cross-examination that he told Ms Emma Dowling she could wear whatever she liked during the feeding sessions, however, he did acknowledge that he had a conversation with her in September last year in which she urged him to do what Mr Mannix wanted. He also told her that he was going to maintain his current position in regard to the badge money, as that was no business of the Co-Op, but he was happy to cooperate in regard to other matters.
[22] Mrs Matthews has supported her husband in feeding the pelicans and in promoting their welfare over the past 18 years. In July last year Mr Mannix was invited to attend a dinner arranged by the Pelican Research Group. Mrs Matthews discussed the history of the pelican feeding activities with him at the dinner, and said he told her that he had a good working relationship with her husband. Mrs Matthews also confirmed that as a member of the Pelican Research Group she had agreed that it was not appropriate to provide financial information about the badge sales to the management of the Co-Op.
[23] Mr Matthews submits that he has over a long period of time done everything asked of him in regard to the pelican feeding activities, often without being paid or without asking to be paid for this work. He continues to submit that the events of 4 September last year were not sufficient to justify his termination, particularly given his long record of service, and there was therefore no valid reason for his dismissal. He also takes issue with the procedure adopted, and submits that most of the procedural fairness steps set out in s.387 were not complied with.
[24] He also submits that he did not accuse Mr Mannix of putting a "stooge" in the crowd, but simply asked whether he had done so. In addition, his swear words were not directed at Mr Mannix, and he was instead simply expressing his frustration at the proposed wording contained in the draft of the handbook being prepared to assist the work of the pelican feeders.
[25] He also submits that there would be no difficulty in terms of his relationship with Mr Mannix if he were to be reinstated as he had minimal contact with him when conducting the feeding sessions, and would often go for long periods of time without seeing him at all. He also had a good relationship with him for much of the time he was employed and holds no ill will toward him. He also points to the email sent to him by Mr Mannix on 24 September as evidence that Mr Mannix also believed it was possible for a relationship between the two men to be re-established and maintained.
[26] Mr Paul Mannix is the General Manager of the Co-Op and has been in this role since December 2015. When he commenced the business was making a loss and his immediate objective was to introduce changes designed to make it more professional and ultimately more profitable.
[27] In April last year he was contacted by two Officers from the Department of Environment, Land, Water and Planning ("DELWP") who raised concerns about whether the Co-Op was "profiteering from wildlife."[7] He understood that Officers from the Department had previously attended one of the pelican feeding sessions. He was also informed that the Co-Op might be subject to an audit by the Department, and if this occurred it would require details about its finances, including details about the revenue earned from donations and badge sales at the feeding sessions.
[28] Mr Mannix then attempted to contact Mr Matthews to discuss this situation as he understood he was responsible for the revenue collected from the donations and badge sales. He was not aware that Mr Matthews was on holiday at the time, and met with him when he returned from leave. However, Mr Matthews was only prepared to provide some notes setting out details about how the donations received had been spent, and he was not prepared to provide details about the revenue raised from the badge sales. Mr Mannix then sent a further email on 24 April again requesting these details, but Mr Matthews did not respond, and he subsequently continued to refuse to provide a record of the amounts held in the accounts of the Pelican Research Group. Mr Mannix then met with Mr Matthews again on 4 September, and was told that the members of the Pelican Research Group, which included a number of the staff employed by the Co-Op to conduct the pelican feeding sessions, had decided not to provide it with any information about the revenue from the badge sales.
[29] Mr Mannix acknowledged in his witness statement that the pelican feeders had previously been given permission by the Co-Op to sell badges at the conclusion of the feeding sessions, and this revenue contributed to pelican research. However, this activity was not completely separate from the work of the Co-Op, and the badges were sold when the pelican feeding was being conducted by employees wearing uniforms provided by the Co-Op. In his view the request to provide details about the revenue raised from badge sales was therefore a reasonable management request.
[30] In August last year Mr Mannix advised the pelican feeders that donations were no longer to be collected and the badge sales were to cease. This was because of the risks associated with allowing these arrangements to continue. The pelican feeding activities would instead now be financed entirely by the Co-Op. He was subsequently approached by the pelican feeders to discuss these changes, and a meeting was arranged for 3 September. However, Mr Matthews did not attend and provided no explanation for his absence.
[31] On the following day Mr Matthews was involved in his weekly feeding session. Mr Mannix approached him and asked if they could meet after the session concluded. His intention was to try and resolve any outstanding issues in a conciliatory manner. However, Mr Matthews adopted an aggressive attitude in the meeting and stated at one point, "what you did was very f-----g disrespectful from the word go."[8] Mr Mannix then decided, given Mr Matthews' approach and attitude, that it was appropriate to take notes of their conversation, and at that point Mr Matthews apologised for his earlier comment. Mr Mannix assumed he had apologised because he had started taking notes.
[32] Mr Matthews then made reference to a "stooge" being placed in the crowd during the feeding session in order to try and set him up, but Mr Mannix said this suggestion was completely false. Mr Mannix then said it was "effing offensive that you would make such an accusation."[9] A further discussion then took place about the content of the proposed pelican feeders' handbook. Mr Matthews was upset about what he described as the "reems of paper"[10] contained in the draft document. Mr Mannix had previously asked Mr Matthews to draft the handbook, but he had refused, and he had therefore asked someone else to compile it.
[33] Mr Matthews then indicated that he was not prepared to be involved in any further management issues and would simply just continue working as a pelican feeder. The meeting ended with Mr Mannix advising Mr Matthews that if his conduct did not improve there would be consequences. He responded by asking "is that a threat."[11] Mr Mannix indicated in response, "It's a threat it's a warning it's whatever you want it to be."[12] At that point Mr Matthews "stormed down the stairs and left."[13]
[34] Mr Mannix said he was appalled by Mr Matthews' conduct in the meeting and took time to consider what was an appropriate response. He then stated, "After significant deliberation, I proceeded to advise Mr Matthews of his termination via email dated 5 September 2018."[14] He considered that he had demonstrated an insubordinate and rude attitude towards management, which ultimately was the "'final straw' leading to his termination."[15] He had also not shown any remorse or contrition, or made any attempt to comply with what were reasonable management requests about the financial details associated with the badge sales.
[35] Mr Mannix later emailed Mr Matthews on 24 September and as a gesture of good faith offered to purchase all the remaining badges as he wanted to ensure he was not left out of pocket. He considered Mr Matthews' failure to respond to this email again indicated that he was no longer willing to work with the management of the Co-Op, on any reasonable level. He also denied he had ever told Mrs Matthews he had a good working relationship with her husband.
[36] He also indicated in cross-examination that Mr Matthews had not been provided with any written or verbal warnings prior to his dismissal on 5 September. He also acknowledged that he had asked Mr Matthews to ring the Department after some of its Officers had apparently attended a pelican feeding session in April. He did so because of Mr Matthews' knowledge and understanding about the appropriate people in the Department to deal with. He also indicated that he may have congratulated him at the time on a job well done. He also confirmed that he had asked him to prepare a handbook for the pelican feeders because he was the unofficial leader of the pelican feeding team. He was frustrated when Mr Matthews refused to agree to this request. Mr Mathews had also been involved in organising and maintaining the equipment required during the feeding sessions, without asking to be paid for this additional work.
[37] Mr Mannix also denied that he used the expression "effing idiot" during the course of his conversation with Mr Matthews on 4 September. He also did not consider that the use of the word "effing" constituted swearing. He also denied he had said "there would be repercussions," or "do not speak until I have finished."
[38] Ms Dowling works at the Co-Op as a Shift Supervisor and has been employed since June 2016. She is employed on a casual basis and works between ten and twenty hours each week, on average. Her responsibilities include managing staff, ordering stock, customer service, preparing and cooking food, fresh fish sales, and pelican feeding. She is in regular contact with the pelican feeders as part of her role, and generally has a good working relationship with them.
[39] In August 2018 she was conducting a feeding session when she saw an Officer from the DELWP recording what was occurring on an iPad. However, the soliciting of donations and selling badges at the feeding sessions had stopped by this time.
[40] Ms Dowling was regularly involved in the pelican feeding, but had not agreed with the decision by Mr Matthews and the other pelican feeders to refuse to provide financial details about the badge sales to the management of the Co-Op.
[41] She said she has a very good working relationship with Mr Mannix and believed he acted at all times in the best interests of the staff and the Co-Op.
[42] Ms Dowling also stated that she did not want to work with Mr Matthews again, and if he was reinstated she would stop being involved in the pelican feeding sessions. She believed he had lied to her, and attempted to manipulate her into supporting his approach from the time she commenced feeding the pelicans around two years ago. She also believed he had been confrontational and uncooperative in his relationship with Mr Mannix.
[43] However, she also indicated in cross-examination that while she had seen Mr Matthews acting in a combative way, he was not usually aggressive and could generally be described as a happy and outgoing person.
[44] The Co-Op acknowledges in its submissions that Mr Matthews has been a dedicated supporter of the welfare of the local pelicans, and the lunchtime feeding sessions, over an extended period of time. His support of these activities has also been of benefit to the Co-Op. However, in more recent times it has been necessary to make changes to its operations, particularly given the involvement of the DELWP, and potential concerns about profiteering from wildlife activities. However, Mr Matthews had been resistant to change and had pushed back against ceding control when asked to do so. It also points to his failure to assist in the preparation of the pelican feeders' handbook; his passive resistance to adhering to required dress standards; and his failure to provide details about the revenue generated from badge sales, which the Co-Op submits "is the heart of this aspect of the case."[16]
[45] It continues to submit that the request to provide these details constituted a lawful and reasonable direction, as the opportunity to sell the badges would not have existed without the pelican feeding sessions taking place. In addition, the pelican feeders were paid by the Co-Op; they were wearing uniforms supplied by the Co-Op; and it provided the fish being fed to the pelicans. The request was accordingly sufficiently connected to Mr Matthews' employment, and his failure to disclose the information had the potential to cause damage to the organisation. It was therefore not appropriate, in those circumstances, for Mr Matthews to rely on the pretence that the badge sales were a private matter concerning the members of the Pelican Research Group only.
[46] Mr Matthews refusal to follow this reasonable and lawful direction was compounded by the language he directed at Mr Mannix in the 4 September meeting. It also submits that his language can be contrasted with that of Mr Mannix, who pulled back from using a swear word when he stated, "I find that effing disrespectful." In its submission Mr Matthews use of language was amplified by the fact that it was directed at his Manager, and if an employee decides to abuse their Manager in that way then they inevitably place their ongoing employment at risk. In addition, his actions demonstrated a lack of respect for his Manager, and acted to destroy the necessary relationship of trust and confidence.
[47] The Co-Op also makes reference to the email sent by Mr Mannix on 24 September, which it describes as "an admirable gesture."[17] It demonstrated that Mr Mannix was prepared to continue to work at one level with Mr Matthews, but was not prepared to have him remain as an employee, given what had occurred. In addition, Mr Matthews had not shown any real contrition for his actions and behaviour, and his apology in the meeting on 4 September only came after he realised Mr Mannix was taking notes of their conversation.
[48] The Co-Op also acknowledges that the process in carrying out the dismissal was not perfect. However, the Commission should have regard to the serious nature of Mr Matthews' conduct, and the size of the organisation and its lack of specialist HR expertise. It submits that it did the best it could in all the circumstances, and the procedure adopted can be said to have been fair "given the gravity of the conduct by the applicant."[18] However, it acknowledges that Mr Matthews was given no indication that his employment might be terminated in the meeting on 4 September, and was not provided with an opportunity to respond before the decision to terminate his employment was conveyed to him.
[49] It submits, in conclusion, that the existence of a valid reason, and the overall fairness associated with carrying out the termination of Mr Matthews' employment, mitigates against any finding of unfair dismissal.
[50] This application can, on one view, be seen as somewhat trivial and insignificant, given that Mr Matthews was only employed in the somewhat unusual occupation of "pelican feeder" for one hour on one day in each week. However, it is also acknowledged that any employee is entitled to pursue an unfair dismissal application after they have been dismissed, regardless of the nature of their employment arrangements, providing they satisfy the relevant jurisdictional requirements.
[51] The circumstances are also somewhat unfortunate, given that it is clear from the evidence that Mr Matthews has, over a long period of time, been the acknowledged leader of a dedicated group in the local San Remo community who have worked to support the region's pelican population, as well as the daily pelican feeding activities carried out in conjunction with the Co-Op. It appears that these activities have provided valuable support for the welfare of the local pelicans, and have also been beneficial to the interests of the Co-Op. Mr Matthews has also been prepared to take new staff under his wing, and to assist in the training and development of other pelican feeders. However, his relationship with the Co-Op was turned on its head when he was dismissed from his employment in September last year. The Commission is accordingly now required to consider whether he was unfairly dismissed in that his dismissal was harsh, unjust or unreasonable having particular regard to the matters set out in s. 387 of the Act.
[52] The circumstances in which an employee's dismissal can be considered to be "harsh, unjust or unreasonable" have been considered in a number of previous decisions. The decision in Byrne v Australian Airlines Ltd[19] is often cited in this context. The joint judgement of McHugh and Gummow JJ concluded:
"...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."[20]
[53] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd[21] also provides guidance about the Commission's role in regard to each of the matters in s.387 that must be taken into account in determining whether an employee's dismissal was "harsh unjust or unreasonable." The Full Bench concluded:
[54] I turn now to deal with each of the considerations in s.387, and those authorities that I consider relevant to the determination of this matter.
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)
[55] Before coming to the particular circumstances involved in this matter it is noted again that previous decisions have had regard to what is required in order to conclude that there was "a valid reason for the dismissal related to the person's capacity or conduct." The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd[23] is often referred to in this context. His Honour came to the following conclusions:
"The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.
Section 170DE(1) refers to ''a valid reason, or valid reasons'', but the Act does not give a meaning to those phrases or the adjective ''valid''. A reference to dictionaries shows that the word ''valid'' has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ''2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.'' In the Macquarie Dictionary the relevant meaning is ''sound, just, or well founded; a valid reason''
In its context in s 170DE(1), the adjective 'valid' should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that' the employer and employee are each treated fairly..."[24]
[56] In Parmalat Food Products Pty Ltd v Wililo[25] the Full Bench also concluded that:
"The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open."[26]
[57] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post[27] ("Australian Postal Corporation") also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:
"Reaching an overall determination of whether a given dismissal was "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason" involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct."[28]
[58] It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the Employer believed it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi[29] at paragraph 19 when it stated:
"...the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason."[30]
[59] These authorities make clear that the existence of a "valid reason" is often the most important consideration of the matters in s.387 that the Commission must have regard to. It is also clear that a "valid reason" must be one that is "sound defensible and well founded" as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee's capacity or conduct, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well. I have sought to adopt the approach of these authorities in coming to a decision in this matter.
[60] The Co-Op relies, firstly, on a series of events leading up to September last year in support of its view that it had a valid reason to dismiss Mr Matthews. It acknowledges that he has been a dedicated supporter of the local pelicans, and the pelican feeding activity over an extended period of time. However, he had more recently been resistant to change and unwilling to cede authority. The changes were required, particularly because of concerns that the DELWP believed the Co-Op was profiteering from native wildlife by conducting the feeding sessions. The Co-Op considered that this now required that it be informed about all revenue earned during the course of the pelican feeding sessions, including from the badge sales conducted in the past at the conclusion of each session.
[61] The second set of circumstances relied on by the Co-Op in support of it having a valid reason to dismiss Mr Matthews relates to what occurred in the meeting on 4 September last year. It alleges that Mr Matthews swore at Mr Mannix in that meeting, and then showed no contrition for having done so, before he finally stormed out of the meeting.
[62] Mr Matthews submits, in response, that he was disappointed but accepting of the decision to end the collection of donations and the sale of badges at the feeding sessions. However, he rejects any suggestion that he acted in breach of his employment obligations in not revealing details about the revenue derived from the badge sales. He submits that the sale of badges only took place when the feeding sessions had concluded, and was carried out for the benefit of a separate entity, being the local Pelican Research Group. In addition, there had never been any suggestion or agreement that the revenue generated was to go, in whole or part, to the Co-Op.
[63] In regard to the meeting on 4 September Mr Matthews does acknowledge that he swore during the conversation with Mr Mannix, but states that he immediately apologised for having done so. He also claims Mr Mannix used similar language during the course of their conversation, and the circumstances involved did not justify his dismissal.
[64] The decision by Mr Mannix to bring to an end any revenue raising activities associated with the pelican feeding sessions, until such time as the legitimacy of those activities had been clarified with the DELWP, can be understood. It is less clear, however, whether Mr Mannix was entitled to direct Mr Matthews to provide him with details about how much revenue had been previously earned from the sale of badges. The Co-Op sought to rely on various out-of-hours conduct decisions, such as that in B. Rose v Telstra Corporation Limited[31] ("Rose") in support of its submission that Mr Mannix had given a lawful and reasonable management direction to Mr Matthews because the badge sales were sufficiently related to his employment, given that they would not have occurred without the feeding sessions taking place.
[65] The circumstances involved in the matter of Rose led Vice President Ross, as he was then, into a detailed exposition about the extent to which an employee's conduct outside of work can provide a valid reason for their termination. After extensively reviewing the shift in the nature of the employment relationship since the era of master and servant Vice President Ross concluded (footnotes omitted):
"It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited,:
In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.
Absent such considerations an employer has no right to control or regulate an employee's out of hours conduct. In this regard I agree with the following observation of Finn J in McManus v Scott-Charlton:
"I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified.""[32]
[66] The Vice President then continued to review a series of previous decisions in which the conduct or misconduct of employees in their private life was found to have impacted on their employment. Most of the examples referred to involve conduct or behaviour that is significantly different and evidently more serious in nature than anything involved in the present matter. For example, the Vice President referred to a case in which a police officer was found loitering in the grounds of a girls' school, while off duty and wearing only his underpants. He also made reference to a matter involving an employee physically assaulting his foremen at a hotel after work, and to another involving employees fighting in the crib room at their workplace.
[67] Vice President Ross came to the following conclusion in Rose:
"I do not doubt that the applicant's behaviour on 14 November 1997 was foolish and an error of judgment. He made a mistake. But employers do not have an unfettered right to sit in judgment on the out of work behaviour of their employees. An employee is entitled to a private life. The circumstances in which an employee may be validly terminated because of their conduct outside work are limited. The facts of this case do not fall within those limited circumstances."[33]
[68] The decision in Rose makes clear that an employee has an obligation to avoid damaging the interests of their employer through conduct in their private life, but at the same time it also makes clear that the conduct complained of must be both incompatible with their duty as an employee, and likely to cause serious damage to the employment relationship. I am not satisfied, when viewed objectively, that Mr Matthews' conduct in refusing to reveal the revenue generated from the badge sales can be said to fall into this category. The following circumstances are relevant in this context:
the Co-Op had previously been prepared to allow the sale of badges at the conclusion of the feeding sessions, without any expectation that any of the revenue generated would go to the Co-Op;
the pelican feeders had immediately stopped selling the badges at the feeding sessions when directed to do so by the Co-Op management;
Mr Matthews had been asked by Mr Mannix to speak to the relevant Officers from the DELWP about any concerns they may have had about the conduct of the feeding sessions. He was apparently asked to do this because of his previous dealings with the Department, and his knowledge about the appropriate staff members to talk to. He was presumably well-placed as a consequence to understand whether the DELWP had any concerns about the conduct of the feeding sessions, and any revenue generated;
there is no evidence indicating that the Co-Op's interests had in any way been damaged by the badge sales and the revenue retained by the Pelican Research Group. For example, there was no regulatory or other breach being pursued against the Co-Op at the time as a consequence of the previous activities associated with the pelican feeding sessions;
there is no suggestion that the Pelican Research Group had done anything wrong, or was looking to feather its own nest, by retaining the revenue from the badge sales. The evidence indicates instead that it was acknowledged as having done valuable work in supporting the welfare of the local pelicans; and
Mr Matthews also appears to have been acting in accordance with a decision taken jointly by the relevant members of the Pelican Research Group, and consequently felt bound by this decision. (However, it is also acknowledged in this context that he appears to have been at the top of the pecking order when it came to the activities of the Pelican Research Group, and likely had a significant influence over the other members in coming to this decision.)
[69] I am not satisfied, in summary, that Mr Matthews' failure to comply with the request made by Mr Mannix can be said in all the circumstances to be of such gravity or importance as to constitute the rejection or repudiation of his employment contract.
[70] I now turn to consider the events of 4 September. Mr Matthews acknowledges that he was frustrated about various things at the time, after Mr Mannix asked to meet with him, and swore when asked about the content of the proposed handbook being developed to assist the work of the pelican feeders. He claims he immediately apologised for having done so, and is remorseful about what occurred. However, Mr Mannix takes issue with the spontaneity of this apology, and submits it was only forthcoming when Mr Matthews realised Mr Mannix was taking notes of their discussion. Mr Matthews also claims Mr Mannix swore at him during the course of their discussion.
[71] Mr Mannix rejects the suggestion that he swore when he used the word "effing." In considering this issue I have been unable to find any authority that has ruled definitively on the question of whether the words "fucking" and "effing" can be distinguished in any way, apart from the obvious fact that they are spelt differently.
[72] However, I am aware that some online dictionaries have a divergence of view about the meaning of the two words. While online dictionaries such as "Urban Dictionary" cannot be deemed to be authority on the definition of words in the 'dictionary sense' some contributors have made what I consider to be enlightening entries in relation to the definition of "effing." For example, some contributors draw little distinction between the two words, with one contributor's definition of the word "effing" stating "Derivation of the word fucking, "effing" means literally fucking," with another stating "used in place of the f-bomb."
[73] However, other online dictionaries take a slightly different view and, for example, a Google search of "effing" produces the online dictionary definition of "effing" in the following way:
"Used as a euphemism for fucking, for emphasis, or to express annoyance. Give me an effing break! He is an effing awful prime minister."
[74] This latter definition suggests that "effing" can be viewed as a milder, more indirect word that is substituted for one considered to be too harsh or too blunt. However, leaving aside these somewhat divergent definitions it does appear to be something of an exercise in hair splitting to suggest that Mr Mannix's language was somehow more restrained during the course of the conversation between the two men on 4 September when he used the word "effing." Any such distinction is perhaps akin to a person being told, "We're letting you go," instead of "You're fired!" The words might be different, but the intent is still the same.
[75] Regardless, the use of swear words in the course of a conversation between an employee and his/her Manager is not condoned or encouraged although it is also acknowledged, based on my experience of dealing with matters that come before the Commission, that the use of such language in similar discussions is not unusual. It also appears that Mr Matthews used the f-word as an adjective to emphasise his frustration, and his language was not directed at Mr Mannix in an aggressive or threatening way. The conversation can also be seen as a robust discussion between two mature and experienced individuals, who had known each other for some time, and previously had a good relationship. It also appears that Mr Mannix gave 'as good as he got' during the course of the conversation.
[76] I have had regard to all of the circumstances involved in this matter. I am not satisfied, in conclusion, that the Co-Op had a valid reason to dismiss Mr Matthews in the sense that the reason can be said to be sound, defensible and well founded. I am also mindful of his long and dedicated service, which extended to training, repairs and maintenance, and other support of the pelican feeding activities that went well beyond what he was paid to do. It is also acknowledged that Mr Mannix was acting in what he believed to be the best interests of the Co-Op, and took a considered decision when he decided to terminate Mr Matthews' employment. However, I am also satisfied that the decision was at least disproportionate in all the circumstances and other responses, short of termination, would have been more appropriate.
(b) whether the person was notified of that reason.
[77] Mr Matthews was notified of the decision to terminate his employment, and the reasons for that decision, in an email sent to him by Mr Mannix on the evening of 5 September last year.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[78] Mr Mannix and Mr Matthews had a discussion on the day prior to Mr Matthews' termination about various issues of concern to both men. However, Mr Matthews was not aware that his employment might be terminated as a consequence of that discussion, and he was not provided with any further opportunity to respond to the reasons related to his conduct prior to receiving the email notifying him that his employment had been terminated.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[79] There were no discussions related directly to the termination of Mr Matthews' employment, however, there was also no direct refusal at any time of any request to have a support person present in any such discussions.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[80] There is no formal record of any warning being provided to Mr Matthews prior to his dismissal.
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[81] It is appropriate to deal with both of the above matters together. It is accepted that the Co-Op is a relatively small organisation, and does not appear to have any dedicated access to specialist HR or other related advice and support. It is also acknowledged that it attempted to do what it believed was appropriate in all the circumstances, and the limited resources available to it undoubtedly impacted on the processes involved.
(h) any other matters that the FWC considers relevant
[82] I am not aware of anything further that is required to be considered in this context.
[83] As indicated, I have had regard to each of the matters contained in s.387. I am satisfied in response that Mr Matthews was unfairly dismissed on the basis that his dismissal was at least harsh and unreasonable. In coming to this conclusion I have had particular regard to whether a valid reason existed, and to whether Mr Matthews was given an appropriate opportunity to respond to the reasons for his termination related to his conduct. Having come to this conclusion I turn now to consider what remedy is appropriate.
[84] Section 390 of the Act provides as follows:
"(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case."[34]
[85] Mr Matthews wants to be reinstated to the position of pelican feeder, where he was engaged on a casual basis to work for one hour on one day each week. Such arrangements can be said to be as rare as hen's teeth. Mr Matthews submits that he was generally a happy and well-respected employee, who was well-liked by those he worked with at the Co-Op. He also submits that there is no practical barrier to his reinstatement, despite the relatively small size of the organisation, and when previously conducting the weekly feeding sessions he had little or no involvement with Mr Mannix, and could often go for extended periods without coming into contact with him at all.
[86] The content of the email sent by Mr Mannix to Mr Matthews on 24 September is also noted. On the one hand, Mr Mannix is to be congratulated for attempting to ensure that the Pelican Research Group was not out-of-pocket for any badges it retained in stock after the decision was made to no longer allow them to be sold. However, the 'olive branch' extended by Mr Mannix in this email also suggests he was prepared to accept that an ongoing relationship with Mr Matthews could be re-established, most likely because of the relationship they had shared in the past, and Mr Matthews' experience and standing in the local area in regard to all things pelican.
[87] Mr Matthews also relies on his long period of service, and his dedication to the welfare of the pelicans, none of which appears to be at issue based on the evidence in the proceedings.
[88] The Co-Op submits, in response, that Mr Matthews' failure to acknowledge any fault in his conduct is a significant factor that works against him being reinstated. It also submits that his conduct went to the heart of the relationship between a Manager and an employee, and this precludes reinstatement from being a viable option.
[89] Previous decisions of the Tribunal have clearly acknowledged that trust and confidence is a necessary ingredient in any employment relationship, and where trust and confidence is lost, reinstatement may be impractical. However, the same authorities have also held that the rationale for the loss of trust and confidence must be sound and rationally based.
[90] In Perkins v Grace Worldwide (Aust) Pty Ltd[35] the Full Court of the Industrial Relations Court of Australia came to the following conclusion:
"Trust and confidence is a necessary ingredient in any employment relationship... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
Each case must be decided on its own merits ... In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive.
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable."[36]
[91] In addition, in the decision in Australian Meat Holdings Pty Ltd v McLaughlin[37] a Full Bench of the Commission found that:
"We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessary conclusive."[38]
[92] I have had regard to these authorities. I am satisfied, in conclusion, that it is appropriate to order that Mr Matthews be reinstated, and that the necessary level of trust and confidence can be established in circumstances where he only has a very limited involvement with the Co-Op in any case, given his one hour per week responsibilities associated with his weekly pelican feeding shift. As indicated already there are no issues about his capacity or capability to carry out the role. In addition, the issues that in large part brought matters to a head are now in the past, given the decision to cease any revenue raising activities associated with the feeding sessions. Mr Matthews has also indicated that he is prepared to step away from any extra-curricular activities associated with the management or administration of the pelican feeding activity that might otherwise have brought him into more regular contact with Mr Mannix. For these reasons I am satisfied, in conclusion, that it is appropriate for an order of reinstatement to be made.
[93] It is also noted that this outcome should not necessarily be construed as implying any criticism of the management of the Co-Op. As indicated already the evidence makes clear that Mr Mannix was doing what he believed was appropriate in terms of safeguarding the interests of the Co-Op, in the face of concerns about possible repercussions from the DELWP, and he should not be criticised for having done so.
[94] Section 391(2) of the Act also provides that the Commission may order that continuity of service be maintained. I consider that such an Order is also appropriate in all the circumstances of this matter.
[95] Section 391(3) continues to provide that the Commission can order the restoration of lost wages during the period of unemployment. I decline to make such an Order. Mr Matthews indicated in his submissions that his application was never about lost earnings, and given his weekly income comprised the grand total of $29.00 at the time of his termination it is evident that he was never "in it for the money." He has also acknowledged that he was at fault in using the language he did in the meeting with Mr Mannix in September last year.
[96] An Order requiring that Mr Matthews be reinstated to his previous position within 14 days of this decision, on terms and conditions which are not less favourable than those which applied to him previously, will be issued as a consequence of this decision. As indicated, the Order will also provide for continuity of service.
M Ritchie of Workplace Wizards for the Respondent.
[1] Fair Work Act 2009 (Cth) s.387.
[4] Email from Paul Mannix to Gary Matthews, dated 5 September 2018.
[5] Email from Gary Matthews to Paul Mannix and Board of Directors, dated 6 September 2018.
[6] Email from Paul Mannix to Gary Matthews, dated 24 September 2018.
[29] Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).
[34] Fair Work Act 2009 (Cth) s.390.
[35] [1997] IRCA 15 (7 February 1997).
Printed by authority of the Commonwealth Government Printer
Gary Matthews
San Remo Fisherman's Co Operative [2019] FWC 4877
(1995) 185 CLR 410
(1995) 62 IR 371