Joshua Nash and Nathan Jago v Tasmanian Water & Sewerage Corporation Pty... [2020] FWC 3221 | Case summary

Joshua Nash and Nathan Jago v Tasmanian Water & Sewerage Corporation Pty... [2020] FWC 3221 | Case summary | Zoe

[7]

[1] This matter involves applications for unfair dismissal remedies made by Mr Joshua Nash (the First Applicant), and Mr Nathan Jago (the Second Applicant) (collectively, the Applicants). The Applicants were employed by Tasmanian Water & Sewerage Corporation Pty Limited t/a TasWater (the Respondent) as Supervisory Control Data Acquisition Operators. The First Applicant was employed from 28 September 2015 to 29 August 2019[1] and the Second Applicant from February 2016 to 29 August 2019.[2] The applications were heard together.[3]

[2] The termination of the Applicants' employment was based on substantiated allegations made against the Applicants involving a failure to comply with the Respondent's Code of Conduct and Workplace Behaviour Policy in relation to inappropriate conduct of a sexual nature involving other team members.[4]

[3] On 26 June 2019, the Respondent sent a letter to the Applicants providing details of the allegations to be investigated.[5] In July 2019, the Applicants were interviewed in relation to the allegations.[6] On 29 August 2019, the Applicants were issued with termination letters substantially in the same terms.[7] The allegations were set out by the Respondent in 7 specific allegations in relation to which findings were made that 6 of the 7 allegations were proven. The Applicants were terminated "as at the date of this letter [being 29 August 2019]" and noting that payment in lieu of notice will be provided as required by the Agreement.[8]

[4] On 17 and 18 September 2019, the Applicants made applications for relief from unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). The matter did not resolve at conciliation and proceeded before me to arbitration on 16 December 2019, 17 December 2019 and 29 April 2020.

[5] At the time of the dismissal, the Applicants' employment was governed by the TasWater General Employees (Northern Region) Enterprise Agreement 2018 (the Agreement) and their duties were set out in their respective job descriptions.[9]

[86]

[16] The Respondent submits that if its characterisation of the conversations was accepted there "can be no doubt that the comments would be considered inappropriate to be made in the workplace".[20] The Respondent alleges breaches of its Code of Conduct;[21] and Workplace Behaviour Policy.[22]

[17] The Respondent further submits that "even without a policy or procedure expressly prohibiting such behaviour, normative standards dictate that employees are aware or ought to be aware that such behaviour is unacceptable in the workplace and should not occur" and that, in any event, the Applicants' conduct in having the conversations at work, during work time, using work resources and in circumstances where the colleagues whom were the subject of the discussions were present in the room and unaware of them amounts to a failure to comply with the Respondent's Code of Conduct and is therefore a valid reason for dismissal.[23]

[18] The Applicants deny the allegations above and submit that:

• The comments in each of these communications has been "mischaracterised";[24]

• They did not collude in responding to the allegations and there was no evidence to support this conclusion;[25]

• Ms How was aware of the conversation between the Applicants, has reviewed the transcript of all conversations and was not offended by their contents;[26]

• The investigation of the Applicants was "biased" due to issues and concerns raised by the Applicants in the workplace "frustrating" management;[27]

• It is unclear when the Applicants were last trained in the policies and procedures of the Respondent nor is it apparent which provisions were specifically breached and therefore cannot be relied on;[28] and

• Both Applicants expressed regret and acknowledged the improper use of the Mitel system for personal conversations.[29]

[19] The uncontested facts, insofar as they relate to the allegations, are as follows:

• The Respondent operates a Mitel telephone system which links to a desk top system, allowing employees to dial numbers from their desktop and instant message people who are on the system;[30]

• Between 11 February 2019 and 19 June 2019, the Applicants conversed with each via the Mitel system;[31]

• The transcript of the conversations on Mitel between the Applicants is an accurate record of these conversations;[32]

• The conversations were held in work time, were conducted at work using work recourses;[33] and

• Several sentences on the Mitel system between the Applicants did not elicit a response.[34]

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[30] In addition to the uncontested facts referred to at paragraph [19] above, in relation to allegation 3, it is not disputed that the communications took place on 1[41]March 2019,41 that the reference in the transcript to watching "GOT" refers to the television show game of thrones which contains significant nudity and sexually ex[42]icit scenes42 and the reference in the transcript to the "unsullied" is to a group of characters in Game of Thrones who have be[43] castrated.43

[31] The Respondent submits that the it could be "easily" accepted that the comments relating to this allegation were sexualised comments in the workplace that were inappropriate.[44]

[32] The Applicants deny that the conversation involving fictional characters in Game of Thrones was sexually inappropriate and intending to denigrate Ms How.[45] The Applicants claim that the conversation ought properly be characterised as office banter and that the references to Ms How, were related to Mr Nash commenting that it would be awkward watching a show with nudity scenes with a female and that Mr Jago's comments that Mr Nash join the "unsullied " fictional characters who are castrated was a "joke".[46]

[33] I have carefully reviewed the transcript of the discussion between the Applicants and the material before me. I have noted the concessions made by the Second Applicant that his comment "you mite (sic) have to join the unsullied so you can stop thinking about it" was a joke related to the First Applicant's sexual urges and the First Applicant's comment that "if I did anything about it I wouldn't have a choice. Wife would make sure of that" related to the First Applicant saying that if he acted on his sexual urges and his wife found out, she would castrate him which they laughed about at the time.[47]

[34] I have also taken into account the response of the First Applicant, that the Second Applicant had made a sexual joke and that he, the First Applicant, had replied in a similar fashion, that is, by making a sexual joke in return.[48]

[35] On the basis of the above, I conclude on the balance of probabilities that the Applicants were engaged in a communication of a sexual nature containing sexual innuendo concerning Ms How.

[36] Therefore, I conclude that this allegation is substantiated.

[104]

[64] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. It is well established that a dismissal may be "harsh, unjust or unreasonable", notwithstanding the finding that there is a valid reason for the dismissal.[69] The gravity of an employee's conduct and the proportionality of dismissal to that conduct are important matters to be taken into account. The Commission should consider all the circumstances, and weigh the gravity of the misconduct and other circumstances telling against a dismissal being unfair with any mitigating circumstances and other relevant matters that might support the Applicant's claim that the dismissal was harsh, unjust or unreasonable.[70]

[65] The Applicant submits that termination was disproportionate in circumstances where:

• The Applicants offered to accept "any other" forms of punishment as an alternative;[71]

• There were sanctions available which would have properly punished the Applicant s and reinforced the importance of complying with policies;[72]

• The Respondent did not consider at all or alternatively did not properly consider alternative action to termination;[73]

• There are no relevant policies and procedures at the workplace regulating use of the Mitel system;[74] and

• In the circumstances and in light of the severe consequences for the Applicants, termination was "manifestly disproportionate".[75]

[66] The Respondent submits that:

• The Respondent had regard to and considered the responses to the investigation and potential disciplinary outcomes and there is no basis for the Applicants to submit that the Respondent failed to properly and genuinely consider the Applicants' responses;[76]

• The Applicants do not dispute that the conversations were inappropriate if the Respondent's characterisation is accepted and in circumstances where the Applicants failed to accept they had engaged in wrongdoing, a reference to a specific clause of a policy would not have made any difference;[77]

• There is no dispute between the parties that the Applicants had not previously received any prior warnings and were, in fact, good employees of the Respondent;[78]

• The Respondent was entitled to rely on the independent investigation in making findings about the Applicants' conversations and in any event it is the Commission's role to determine whether there is a valid reason for dismissal based on the evidence before the Commission rather than to step into the shoes of the employer for the purpose of an investigation;[79]

• Mr Smith provided clear evidence that he reviewed the full transcript after receiving the investigation report and formed his view on the inappropriateness of the conversations based on his review of the full transcript;[80] and

• If the Applicants had, prior to the hearing, chosen to accept responsibility for their actions the Respondent would have accepted that the decision to terminate may have been harsh in the circumstances.[81]

[67] I have taken into account my findings above that only allegation 3 has been substantiated which, while contravening the Respondent's workplace policies, did not constitute a valid reason for dismissal. For these reasons, I am not satisfied that the Applicants' conduct was of such a serious nature as to justify dismissal.

[68] The Applicants' dismissals were disproportionate to the conduct that they engaged in.

[69] The Applicants submitted that the investigation conducted by Ms Jones was "biased". Given my findings above in relation to valid reason, I do not consider it necessary for me to make a finding in relation to this submission.

[70] I have taken into account the length of service of the First Applicant and Second Applicant.[82] Further I have considered the personal circumstances of the First Applicant[83] and the Second Applicant[84] and that the dismissal will adversely financially impact the Applicants.[85]

Joshua Nash and Nathan Jago v Tasmanian Water & Sewerage Corporation Pty Limited T/A TasWater [2020] FWC 3221

At a glance

Court

Decision date

Source

Judgment (177 paragraphs)

Joshua Nash and Nathan Jago v Tasmanian Water & Sewerage Corporation Pty Limited T/A TasWater [2020] FWC 3221 (19 June 2020)

Parties

Legislation Cited (1)