DISPUTE RE TERMINATION OF EMPLOYMENT OF UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Liquor, Hospitality and Miscellaneous Union, Western Australian Branch

APPLICANT

-v-

The Department of Education and Training

RESPONDENT

CORAM Commissioner J L Harrison

HEARD Tuesday, 15 July 2008

DELIVERED TUESday, 12 AUGUST 2008

FILE NO. CR 35 OF 2007

CITATION NO. 2008 WAIRC 01260

Catchwords Termination of employment - Harsh, oppressive and unfair dismissal - Procedural fairness considered - Principles applied - Applicant unfairly dismissed - Application upheld - Order for re-employment - Industrial Relations Act 1979 s 44

Result Upheld and Order issued

Representation 

Applicant Mr M Aulfrey (of counsel)

Respondent Ms R Hartley (of counsel)

Reasons for Decision

1         On 20 December 2007 the Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (“the applicant”) lodged an application pursuant to s 44 of the Industrial Relations Act 1979 (“the Act”) claiming that one of its members Mr Robert Deas had been unfairly dismissed on or about 23 November 2007 by the Department of Education and Training (“the respondent”).  As conciliation was unavailing the issues in dispute were referred for hearing and determination pursuant to s44(9) of the Act.

2         The schedule of matters referred for hearing and determination is as follows:

“1. The applicant claims that the respondent dismissed Mr Robert Deas on or about 23 November 2007 in circumstances that were harsh, unjust or unreasonable and seeks the following orders:

That the respondent re-instate Mr Deas to the position he held immediately prior to his termination with no loss of continuity of service and that he be compensated for any losses he has incurred as a result of his termination.

2. The respondent denies the claim and opposes the orders sought.

Background

Applicant

(a) Mr Deas was employed by the respondent as a Cleaner at Morley Senior High School.  Mr Deas first commenced employment with the respondent on 25 January 2004.

(b) Mr Deas’s employment conditions are in part set out in the Cleaners and Caretakers (Government) Award 1975.

(c) Mr Deas was the subject of a complaint by the Cleaner in Charge of Morley High School, one Rena McAteer.  Mr Deas received a letter on 16 May 2007 regarding allegations of verbal abuse of Ms McAteer from the Principal of Morley Senior High School.  The letter contained a requirement that Mr Deas refrain from using abusive or intimidating language, either directly or indirectly, when at work.

(d) In the course of an incident on 18 June 2007 Mr Deas engaged with another staff member and made derogatory remarks and hand gestures in respect of Ms McAteer.

(e) In the course of an investigation the respondent found this allegation – and only this allegation – proven against Mr Deas.  Notwithstanding the testimony of Ms McAteer other allegations of failure to follow lawful orders had insufficient evidence to be proven.

(f) The respondent neither attempted to mediate the dispute between Ms McAteer and Mr Deas, nor transfer Ms McAteer or Mr Deas to another school despite the options being available.

(g) The respondent was advised by the applicant representing Mr Deas on 7 November 2007 that:

• Mr Deas was operating under a tremendous level of anxiety due to an imminent operation on his knee at the time of the incident – the anxiety arising from his fears he would not be able to return to work after the operation, and thus be unable to support his family.
• Mr Deas had expressed regret for his actions on the relevant day.
• Mr Deas was willing to transfer to another school in order to maintain his employment and thus conclusively deal with the personality conflict which had arisen.

(h) On 19 November 2007 the respondent wrote to Mr Deas (the letter being received on 23 November 2007) that having considered his response termination was to follow immediately on receipt of the letter.  The reasons given for the termination were as follows;

• The response he had made.
• The “surrounding circumstances of the allegations made against you”.
• The subsequent investigation.

Respondent

(a) Mr Deas’ employment conditions are in part set out in the Cleaners and Caretakers (Government) Award 1975 and the Government Services Miscellaneous General Agreement 2007.

(b) Mr Deas was the subject of a complaint by the Cleaner in Charge of Morley High School, one Rena McAteer.  Mr Deas received a letter on 16 May 2007.  In this letter Mr Deas’ attention was drawn to the Western Australian Public Sector Code of Ethics and the Department of Education and Training’s (DET) Code of Conduct.  These documents were also attached.  Mr Deas was also directed to follow DET’s Code of Conduct and in particular “follow DET’s Code of Conduct in your dealings with all members of the school community.  This includes refraining from using abusive language or intimidating language, either directly or indirectly, when at work”.  He was also directed to follow lawful orders given by the Cleaner in Charge.

Mr Deas was also told that if he failed to follow these specific directives this matter may be referred to the Standards and Integrity Directorate for investigation “for which sanctions can apply if proven”.

(c) In the course of an incident on 18 June 2007 where Mr Deas left work early after the morning shift and the Cleaner in Charge attempted to speak to him at the beginning of the afternoon shift it was alleged he made a nazi salute to her and started to abuse her.

(d) In the course of an investigation the respondent found the allegation that Mr Deas had failed to follow DET’s Code of Conduct in his dealings with all members of the school community, including refraining from using abusive language or intimidating language, either directly or indirectly, when at work was proven against Mr Deas.  Notwithstanding the testimony of Ms McAteer the allegation of failure to follow lawful orders had insufficient evidence to be proven.

(e) The respondent was advised by the applicant representing Mr Deas on 7 November 2007 that:

• Mr Deas was operating under a tremendous level of anxiety due to an imminent operation on his knee at the time of the incident – the anxiety arising from his fears he would not be able to return to work after the operation, and thus be unable to support his family, although the respondent was not previously advised of this during the investigation into the allegation.
• The applicant expressed regret on behalf of Mr Deas in a letter to the respondent on 7 November 2007.
• Mr Deas was willing to transfer to another school in order to maintain his employment.

(f) On 19 November 2007 the respondent wrote to Mr Deas (the letter being received on 23 November 2007) that having considered his response termination was to follow immediately on receipt of the letter as he had been found to have committed a breach of discipline.  The reasons given for the termination were as follows:

• The response he had made.
• The “surrounding circumstances of the allegations made against you”.
• The subsequent investigation.”

3         After the conciliation conferences took place the respondent indicated why it was not prepared to reinstate Mr Deas by way of a Notice of Answer and Counter Proposal lodged in the Commission on 28 March 2008:

“DEPARTMENT OF EDUCATION AND TRAINING’S RESPONSE TO ORDER ARISING FROM C35/2007

Consistent with the Western Australian Industrial Relations Commission order in relation to C35 of 2007 (Liquor Hospitality Miscellaneous Union v Department of Education and Training), the Department indicates that it will not reinstate Mr Robert Deas based on the following:

• Ms Fortune had spoken personally with Mr Deas on numerous occasions about his conduct towards the School’s head cleaner, Ms McAteer in an attempt to resolve the issue – to no avail.
• Mr Deas was provided with documentation on at least three occasions regarding his behaviour, an indication that his behaviour was not a once off situation.
• On 16 May 2007 Mr Deas was issued with the following written directive from the Morley Senior High School Principal, Ms Gay Fortune.

‘You are directed to follow the Department of Education and Training’s Code of Conduct in your dealings with all members of the school community.  This includes refraining from using abusive or intimidating language, either directly or indirectly, when at work’.

This directive was issued after a series of complaints received by Ms Rena McAteer regarding Mr Deas behaviour towards her.

• After an investigation into a further complaint from Ms McAteer on 18 June 2007, Mr Deas was found to have breached the above directive and informed by the Director General on 28 September 2007 that his employment was to be terminated (Note that the only sanctions available to the Director General for non PSMA employees are reprimand or dismissal.  Reprimand was not deemed appropriate due to his clear failure to amend his behaviour having been issued with a directive and after having been spoken to by Ms Fortune).”

Background

4         Ms Gay Fortune the Principal of Morley Senior High School (“MSHS”) issued two directives to Mr Deas by letter dated 16 May 2007.  The directives are as follows:

“Accordingly I am issuing you with the following directive (sic):

• You are directed to follow the Department of Education and Training’s Code of Conduct in your dealings with all members of the school community.  This includes refraining from using abusive or intimidating language, either directly or indirectly, when at work.

• You are directed to follow lawful orders given to you by the Cleaner-in-Charge within a reasonable time and without the need for the cleaner in charge to refer the matter on to her line manager.”

(extract from Exhibit R5)

5         The applicant was terminated subsequent to an investigation undertaken by the respondent into an event which occurred at MSHS on 18 June 2007.  The Acting Principal Investigator, Mr Liam Smyth, of the respondent’s Standards and Integrity Directorate investigated this incident and on 23 July 2007 he completed a report into Mr Deas’ conduct (see Exhibit R1 and the executive summary attached to this exhibit).  A copy of Mr Smyth’s report was provided to Mr Deas around the end of July 2007, who then forwarded it onto the applicant, and the respondent invited Mr Deas to provide a written submission “to the evidence contained in the report” (sic) (Exhibit R6).

6         In response to the report the applicant wrote the following letter to the respondent on behalf of Mr Deas (formal parts omitted):

“RE: MR. ROBERT DEAS – CLEANER, MORLEY SENIOR HIGH SCHOOL

Mr. Robert Deas has requested that the Liquor, Hospitality and Miscellaneous Union (LHMU) act on his behalf with regards to the investigation of allegations of misconduct.

Having read through the report we find there is insufficient evidence to support the conclusion that Mr. Deas has “clearly breached the general principles of official conduct as laid down in Section 9 of the Public Service (sic) Management Act and also the Western Australian Public Sector Code of Ethics.”

It appears that there is a personality conflict between Mr. Deas and Ms McAteer (Cleaner in Charge) and that the professional relationship between the two parties was never afforded an opportunity to work through with mediation.  The Principal, Ms Gay Fortune has discounted negotiations between the two parties in any circumstance.

If you wish to discuss the matter further please do not hesitate to contact me on (08) 9388 5400.”

(Exhibit R7)

7         After considering Mr Deas’ response Ms Sharyn O’Neill, Director General of the respondent wrote to Mr Deas on 28 September 2007 stating that Mr Deas had, during an incident at MSHS on 18 June 2007, breached the first directive given to him by Ms Fortune on 16 May 2007 by his conduct towards Ms Rena McAteer, the Cleaner in Charge at MSHS, and told Mr Deas that such behaviour cannot be tolerated.  As a consequence of the respondent’s view that Mr Deas had breached this directive, the respondent indicated to Mr Deas that it proposed to terminate his employment but prior to doing so he was given an opportunity to make a written submission in response to his proposed termination (see Exhibit R8).

8         The applicant responded to the letter from Ms O’Neill on behalf of Mr Deas as follows (formal parts omitted):

“MR. ROBERT DEAS – CLEANER, MORLEY SENIOR HIGH SCHOOL

We act on behalf of Mr. Robert Deas, Cleaner at Morley Senior High School with regards to your letter dated 28th September, 2007 and respond as follows:

During May and June, 2007 Mr. Deas was fraught with immense anxiety due to the (then) impending operation on his knee; not knowing if he would be able to make a speedy recovery to return to work to support his family and therefore acted irrationally towards Ms McAteer.

It would seem appropriate to reprimand Mr. Deas for the alleged breach of conduct as opposed to termination of employment.  Mr. Deas has expressed regret for his actions and has indicated that he is willing to transfer to another school to maintain his current employment with the Department of Education and Training.

If you require additional information pertaining to Mr. Deas please do not hesitate to contact me on 9388 5400.  Any further documentation pertinent to this issue should be sent to me at the above address.”

(Exhibit R9)

9         On 19 November 2007 Ms O’Neill wrote to Mr Deas stating that after considering the applicant’s response on behalf of Mr Deas and the surrounding circumstances of the allegations and the report completed by Mr Smyth the respondent maintained the view that Mr Deas should be terminated and he was advised that his termination was effective from the date he received the letter.  Mr Deas was also advised that he would be paid monies in lieu of any requirement to offset his remaining period of notice (see Exhibit R10).  This letter reads as follows (formal parts omitted):

“In my letter to you dated 28 September 2007, I informed you that I had found you had committed a breach of discipline.  I further informed you that I proposed to terminate your employment as a result of the breach.

You were given a reasonable opportunity to provide written submissions concerning the action I proposed to take and I note you have availed yourself of that opportunity.  I have considered your response and the surrounding circumstances of the allegations made against you and the subsequent investigation that took place.  Accordingly, I maintain the view that termination of your employment is the most appropriate action in this case.

I hereby terminate your employment with effect from the date you receive this letter, in accordance with the relevant Award.  You will be paid in lieu of any requirement to offset the remaining period of notice.

Upon receipt of this letter you are hereby directed to return any school property in your possession, including keys, to the Principal at Morley Senior High School.

If you feel aggrieved by this decision, you may appeal to the Western Australian Industrial Relations Commission.

If you have any questions in relation to this matter, please do not hesitate to contact Mr Liam Smyth, A/Principal Investigator, Standards and Integrity Directorate on 9270 3014.”

(Exhibit R10)

10      Whilst the respondent was considering its position with respect to Mr Deas’ ongoing employment he was stood down from undertaking his normal duties on full pay until his termination took effect on 23 November 2007.  When Mr Deas was given his letter of termination by Mr Graeme Wright he was told that he was not allowed to apply for any further positions within the Western Australian Government school system.

11      The following two memorandums were given to Ms O’Neill by Mr Tony Vidovich, Director, Standards and Integrity through Mr Trevor Porter, Acting Executive Director, Professional Standards and Conduct prior to Mr Deas being terminated (formal parts omitted):

Memorandum dated 5 September 2007

“ROBERT DEAS – PROPOSAL TO TERMINATE EMPLOYMENT

The respondent in this investigation is Mr Robert Deas who is employed by the Department in the capacity of a cleaner at Morley Senior High School.  As such he is not subject to the Public Service (sic) Management Act 1994.

In March and May 2006 he was informed in writing of his substandard performance and also his behaviour and general conduct towards his line manager, Ms McAteer.  Despite being in receipt of these reprimands, his performance and attitude towards Ms McAteer did not improve.  Attempts to manage this at a local level proved unsuccessful.

On 16 May 2007 the respondent was served with a written notice containing two separate directives.  These directed him to follow orders issued to him by Ms McAteer and to also refrain from using abusive or intimidating language towards her.  It was alleged that following an incident on the (sic) 18 June, he breached these directives.

This matter was later reported to the Standards and Integrity Directorate and Acting Principal Investigator Liam Smyth was appointed to investigate.  A copy of his investigation report and an Executive Summary are attached herein.  In short he found that one of the alleged breaches was proven whilst the other was not.

At the conclusion of the investigation, he reported his findings to the Acting Executive Director, Trevor Porter.  He concurred with them and recommended that Mr Deas’ employment with the Department should be terminated.

The Department wrote to Mr Deas in July 2007 and reported the findings of the investigation and also allowed him sight of the investigation report.  He was asked to submit a response and through his Union representative, he has replied in a letter dated 24 August 2007 (see attached).

The document alleges that the breach of discipline is actually a mere “personality clash” between the respondent and Ms McAteer.

You will see within the file considerable documentation concerning Mr Deas’ alleged similar behaviour since he was served with the report.  A decision was made by Mr Graeme Wright, Manager of Education Services, Swan District Office in consultation with Ms Gay Fortune, Principal at Morley Senior High School to direct Mr Deas away from the school until further notice.  There has been considerable consultation between Mr Smyth, the school and also Elizabeth McAdam from Labour Relations and the situation is being managed locally at this point.  This Directorate has deliberately had no involvement in the processes and decisions made with regards to these specific issues except to assist with the wording of a letter sent to Mr Deas to remain away from the school.  The separate issue they are dealing with formed no part of the investigative decision making or findings.  The decision to direct Mr Deas away from the school was made after the decision Trevor Porter made in advocating the termination of Mr Deas’ employment.

I have examined the investigation report compiled by Mr Smyth.  It is comprehensive and his investigation was thorough and complete.  I have also considered the response from Mr Deas in relation to it and there is nothing in that response that provides significant mitigation to suggest the original course of action suggested by Trevor Porter was in anyway flawed or incorrect.

I therefore recommend that the attached letter to Mr Deas, advising him of our intentions, be signed.”

(Exhibit R11)

Memorandum dated 8 November 2007

“MR ROBERT DEAS PROPOSAL TO TERMINATE EMPLOYMENT

Mr Robert Deas is employed by the Department as a cleaner at Morley Senior High School.  He is therefore not subject of the Public Sector Management Act 1994 (the Act).

In March and May 2006 he was informed in writing of his substandard performance and also his behaviour and general conduct towards his line manager, Ms McAteer.  Despite been (sic) in receipt of these reprimands, his performance and attitude towards Ms McAteer did not improve.  Attempts to manage this at a local level proved unsuccessful.

On 16 May 2007 the respondent was served with a written notice containing two separate directives.  These directed him to follow orders issued to him by Ms McAteer and to also refrain from using abusive or intimidating language towards her.  It was alleged that following an incident on 18 June, he breached these directives.

This matter was later reported to the Standards and Integrity Directorate and Mr Liam Smyth was appointed to investigate.  A copy of his investigation report and an Executive Summary is attached herein.  In short he found that one of the alleged breaches was proven whilst the other was not.

This was later communicated to Mr Deas in correspondence.  Given the limited options of penalty and the previous history of the respondent, a decision was made to terminate his employment.  This was outlined in a letter to Mr Deas on 28 September 2007.

Through his union representative, Ms Rebecca Murphy, Mr Deas has now responded.  He has outlined that he was suffering from “immense anxiety” at the time of the breach due to an impending knee operation and the resultant fears for his livelihood.  The response also expresses “regret for his actions” and a willingness to move to another school.  A copy of this letter is attached herein.

I have discussed the mitigation with Mr Smyth.  His only observations are that at no time during his investigation (until now) was Mr Deas’ knee injury ever raised as a mitigating factor for his behaviour and again, until now, there has never been any acknowledgement of guilt or inappropriate behaviour by him.

In conclusion, I do not feel that there are any significant grounds to believe that the original recommendation (of termination) was flawed or unduly harsh and I therefore recommend the attached letter to Mr Deas, informing him of his dismissal is signed.”

(Exhibit R12)

12      The day before the hearing the applicant provided an agreed statement of facts to the Commission which is as follows:

“1.1 Mr Robert Deas was employed by the Respondent as a Cleaner at Morley Senior High School.  Mr Deas commenced employment with the Respondent on 25 January 2004.

1.2 Mr Deas’ employment conditions are in part set out in the Cleaners and Caretakers (Government) Award 1975 and the Government Services Miscellaneous General Agreement 2007 (sic)

1.3 Mr Deas was the subject of a complaint by the Cleaner in Charge of Morley High School, one Rena McAteer.  Mr Deas received a letter on 16 May 2007.  In this letter Robert Deas’ attention was drawn to the WA Public Sector Code of Ethics and the Department of Education and Training’s (DET) Code of Conduct.  These documents were also attached.  Robert Deas was also directed to follow DET’s code of conduct and in particular “follow DET’s Code of Conduct in your dealings with all members of the school community.  This includes refraining from using abusive language or intimidating language, either directly or indirectly, when at work”.  He was also directed to follow lawful orders given by the Cleaner in Charge.

Robert Deas was also told that if he failed to follow these specific directives this matter may be referred to the Standards and Integrity Directorate for investigation “for which sanctions can apply if proven” (sic)

1.4 In the course of an incident on 18 June 2007 where Robert Deas left work early after the morning shift and the Cleaner in Charge attempted to speak to him at the beginning of the afternoon shift. (sic) It was alleged he made a nazi salute to her and started to abuse her.

1.5 In the course of an investigation the Respondent found the allegation that Mr Deas had failed to follow DET’s Code of Conduct in his dealings with all members of the school community, including refraining from using abusive language or intimidating language, either directly or indirectly, when at work was proven against Mr Deas.  Notwithstanding the testimony of McAteer the allegation of failure to follow lawful orders had insufficient evidence to be proven.

1.6 The Respondent was advised by the Applicant representing Mr Deas on 7 November 2007 that:

• Mr Deas was operating under a tremendous level of anxiety due to an imminent operation on his knee at the time of the incident – the anxiety arising from his fears he would not be able to return to work after the operation, and thus be unable to support his family, although the respondent was not previously advised of this during the investigation into the allegation.
• The LHMU expressed regret on behalf of Mr Deas in a letter to DET on the (sic) 7 November 2007.
• Mr Deas was willing to transfer to another school in order to maintain his employment (sic)

1.8(sic)On 19 November 2007 the Respondent wrote to Mr Deas (the letter being received on 23 November 2007) that having considered his response termination was to follow immediately on receipt of the letter as he had been found to have committed a breach of discipline.  The reasons given for the termination were as follows:

• The response he had made.
• The “surrounding circumstances of the allegations made against you.”
• The subsequent investigation.

1.9(sic)The Union has attempted to resolve the matter with the Respondent without success.”

Applicant’s evidence

13      Mr Deas gave evidence that when Ms McAteer became the cleaner in charge in 2006 they initially had a good relationship but it soon deteriorated.  Mr Deas stated that after Ms McAteer asked him to catch another cleaner Mr Christopher Newcombe smoking and he told her that he refused to spy on him Ms McAteer turned on him and monitored him closely.  Mr Deas claimed that she did this even though he helped Ms McAteer out if a cleaner was away.  Mr Deas maintained that Ms McAteer picked on him about trivial issues and she told him that if he could not complete the work required of him then she would get someone else to do his job.  Ms McAteer told Mr Deas off for talking to teachers and gardeners and he was told that if he did it again he would be “written up” which Mr Deas described as being given a warning.  Mr Deas stated that Ms McAteer gave him a few warnings however he did not receive any correspondence from MSHS as a result of being “written up”.

14      When asked if he had ever been asked for his side of the story in relation to being ‘written up’, Mr Deas stated that he was once asked to attend a meeting with Ms  Fortune, who told him that things were getting out of hand between himself and Ms McAteer and she advised Mr Deas to have a discussion with Ms McAteer to clarify the duties she expected of him.

15      Mr Deas gave evidence about the incident which occurred on 18 June 2007.  Mr Deas stated that he was with his son Mark Deas who was also a cleaner at MSHS when they approached the cleaners’ room to sign on and take out their equipment to start cleaning.  Mr Deas stated the door to the room was locked and his son Mark opened the door and Ms McAteer came out of the cleaning room where she was meeting with other female cleaners and she shoved Mr Deas’ son Mark on the chest pushing him out of the door.  Mr Deas said all he wanted to do was go into the room to sign on and get his vacuum cleaner so he could undertake his duties however Ms McAteer shut the door on them.  Mr Deas stated that he did not recall “making German signs” at Ms McAteer at the time.  Mr Deas gave evidence that when Ms McAteer came out of the room he did not say anything about Germany and he stated that put his “hand out the window and I said, I said I can’t work that’s that”.  Mr Deas said he and his son then waited outside the room for the meeting to finish.

16      Mr Deas stated that during his interview with Mr Smyth during the investigation into the incident on 18 June 2007 Mr Smyth asked him if he would transfer to another school and Mr Deas stated that he was happy to agree to this.

17      Mr Deas said that no discussions were held with him before Mr Fortune gave him correspondence about his behaviour.

18      Mr Deas stated that he was scheduled to have a knee operation in July 2007 but this was put back to November 2007.  Mr Deas stated that in the period prior to his operation he was on heavy medication and he stated that at times Ms McAteer told him he could not do his work properly and he should go on a pension and she told him that he should not be at work.  Mr Deas then claimed that he was harassed at least four times a week by Ms McAteer and “written up a few times”.  Mr Deas stated that he is currently fit to return to work. 

19      After his termination Mr Deas worked as a cleaner at Mercy College but as it was a very late shift he was not prepared to continue working this shift and Mr Deas then worked at another private school for a while.  Mr Deas stated that he did not apply for alternative cleaning positions at other Government schools because Mr Wright, who delivered his termination letter, told him that he can no longer work at Western Australian Government schools.

20      Under cross-examination Mr Deas agreed that cleaners were not allowed to smoke at MSHS but he stated that it was not his job to watch cleaners on behalf of Ms McAteer to catch them smoking.  Mr Deas maintained that no teachers had any issues with the standard of his cleaning.

21      A number of letters were put to Mr Deas which he agreed he had received.  These letters were dated 23 May 2005 (Exhibit R2), 23 March 2006 (Exhibit R3), 15 May 2006 (Exhibit R4) and 16 May 2007 (Exhibit R5).  Mr Deas stated that he could not recall if there was a complaint sheet attached to the letter dated 16 May 2007 as stated in the letter.

22      Mr Deas confirmed that he received a copy of the respondent’s Staff Conduct policy when he commenced employment at MSHS and he stated that he had read this document.

23      Mr Deas stated that during the incident on 18 June 2007 outside the cleaner’s room all he did was put up his hand and say he would wait until Ms McAteer finished in the room.  Mr Deas stated the following:

“MS HARTLEY: All right. And it was about month later then, Mr Deas ... I think it was on 18 June 2007 ... that this incident occurred with the gestures or the signing that Mr - - -? ---Outside the cleaning room.

I'm not sure exactly where it is?---No, all I done was put my hand up and I says, "Right, we'll wait," and we sat there on the fence, me and the son. I said, "If we can't get in, we'll wait. If we're running late, we're running late. We can only do what we can do."”

(Transcript p 27)

24      Mr Deas agreed that he received correspondence from the respondent subsequent to the incident on 18 June 2007 advising him that he could respond to the investigator’s report and to the respondent’s view that he should be terminated and he stated that he sent copies of these letters to the applicant to respond on his behalf.

25      When Mr Deas was asked about the reference to him “acting irrationally” towards Ms McAteer in the letter the applicant wrote on his behalf dated 7 November 2007 he said:

“Okay. But the representation there that you acted irrationally towards - - -?---No, I didn't act ... no, no, she come in ... she always came in shouting, bawling, because I went - you go back to Chris. Because of when (indistinct) cleaner about the school. I told her, "I'm not following nobody. I'm doing what I'm doing and that's it," and she didn't like it.

Okay. So you say you didn't act irrationally towards Ms McAteer?---I maybe said something if she said something to me. I mean, she came in shouting ...

…

Okay. Can I confirm, Mr Deas, that it is your view that you didn't act irrationally towards Ms McAteer?---Maybe I said something back, I don't know, just to back myself up, but you can only go so far. When you hit that wall, you've got to come back. You can't go right through the wall.

Okay. So when a letter from the union on your behalf to the department advises that, due to, I guess, anxiety in relation to an impending operation, you acted irrationally towards Ms McAteer - - -?---No, I didn't act. I only talked to her, I spoke back to her. I didn't touch her, I didn't do nothing to her.

So that's not - - -?---All I done was talk to her. I didn't touch her.

Sure. So that's not a correct representation then of - - -?---No. I didn't touch her. I only says to her ... I always kept saying, "Leave me alone. I'm doing the job and my knee still hurts." I was taking two Panadine (sic) Forte in the morning and two in the afternoon to keep me going; two strong tablets.”

(Transcript pp 32/33)

26      When asked if there had been any attempts at mediation with Mr Deas prior to August 2007, Mr Deas stated the following:

“MS HARTLEY: … Mr Aulfrey asked you about mediation between yourself and Ms McAteer?---Mm'hm.

I think you referred to the time around August 07 when Liam Smythe came out to investigate as being a time when this matter was discussed. Is that the case?---Mm'hm.

Is that the case ... that - - -?---Yes, Liam sat across from me. He talked to me about it.

Okay. If I could take you further then: Mr Aulfrey asked you if there'd been any attempts at mediation before August 07 and, as I understood your answer to be, it was the case that there'd been attempts at mediation before 2007. That's the answer I have down here and I just want to confirm that; that it is your recollection that there were attempts at mediation prior to - - -?---There was attempts. Gay tried. Gay was trying to do something and, yeah, Gay says to me, "Ask her when you come in if there's any extra to do." She says ... and then she says, "I advise you to go ... when you come back in" ... I thought she was kidding me on. She says, "Put your clogs on and just go away and do your job." I said, "But I've got to ask her now."”

(Transcript p 35)

27      Under re-examination Mr Deas stated that he had only one meeting with Ms Fortune and she did not arrange any meetings between Ms McAteer and himself to discuss issues between them.  Mr Deas also stated that the issues raised in the letters dated 23 May 2005, 23 March 2006 and 15 May 2006 were not discussed with him prior to the letters being sent to him.

28      Mr Newcombe has been a friend of Mr Deas for approximately ten years and he has been cleaning at MSHS for approximately three and a half years.  Mr Newcombe stated that his relationship with Ms McAteer was fair at the beginning but she then picked on him after he had a disagreement with her.  Mr Newcombe stated that after approximately six or seven months he had a private discussion with Ms McAteer about his wife who was ill at the time and he stated that Ms McAteer then backed off from picking on him and he stated that she then started picking on Mr Deas.

29      Mr Newcombe stated that the disagreement he had with Ms McAteer was when she asked him to return to fix something and he stated that he lost his temper and received a warning letter.  Mr Newcombe stated that Ms McAteer made frequent complaints about him and he was given letters of warning without these letters being discussed with him.  Mr Newcombe stated that on one occasion he was told he could respond to a complaint made against him by Ms McAteer.  Mr Newcombe stated that Ms McAteer accused him of smoking at the workplace and he received a letter about this issue and Mr Newcombe stated that at a meeting held to discuss Ms McAteer’s claim that he was smoking on the school premises Ms McAteer told Ms Fortune that she could smell smoke on Mr Newcombe and he claimed that this was the basis for Ms McAteer’s complaint against him.  Mr Newcombe maintained that he had never smoked at MSHS and Mr Newcombe stated that after this meeting Ms McAteer threatened Mr Newcombe and claimed that he had lied and told him “I am going to get you out of here”.  Mr Newcombe then complained to Ms Fortune about Ms McAteer and told her that it was unfair to be subjected to these sorts of conditions.

30      Mr Newcombe stated that Ms McAteer picked on male cleaners and she closely supervised his work and Mr Newcombe also stated that if Ms McAteer “had a down on someone” she would monitor them closely and would be on their back.  Mr Newcombe stated that Ms McAteer also told him off for talking to gardening staff.

31      Mr Newcombe stated that when Ms McAteer complained to him about Mr Deas and told him that Mr Deas was uncooperative he told Ms McAteer that the issues were between her and Mr Deas.

32      Mr Newcombe stated that he understands that Ms McAteer is currently on secondment and not working at MSHS.

33      Mr Newcombe confirmed that he was interviewed by Mr Smyth as part of his investigation into the incident which took place on 18 June 2007 even though he was not at MSHS on the date of the incident.  Mr Newcombe gave evidence that he told Mr Smyth that Ms McAteer had unreasonable and unrealistic cleaning standards and Mr Newcombe stated that Mr Smyth asked him if Mr Deas had left work early and he told him that he was unaware if that was the case.

34      Under cross-examination Mr Newcombe stated that he had received three or four letters of warning over the three years that he had been at MSHS.  Mr Newcombe stated that when he was interviewed by Mr Smyth he was asked questions about whether or not Mr Deas left work early and whether or not he had physically abused Ms McAteer or used abusive language towards her.  Mr Newcombe stated that to his knowledge that was not the case “because as soon as I could see something brewing between the two of them, I just got my key and went off to my area to work and left them to it” (T46).

35      Mr Mark Deas is Mr Deas’ son and was working as a cleaner at MSHS on 18 June 2007.  Mark Deas stated that he ceased working at MSHS in December 2007 because he obtained a better job and because of Ms McAteer.  Mark Deas described Ms McAteer as being awkward to get along with.  Mark Deas stated that when she commenced at MSHS things were going well for him and Mr Deas and she had it in for Mr Newcombe however this changed and there was then a personality clash between Mr Deas and Ms McAteer.

36      Mark Deas stated that cleaners would be “written up” if they did not do things Ms McAteer’s way and Mark Deas stated that he was given one letter by Ms Fortune after an altercation with Ms McAteer over “something stupid”.  He also stated that he was aware that other cleaners had been given these types of letters.

37      Mark Deas stated that when he and his father tried to enter the cleaning room on 18 June 2007 Ms McAteer pushed him in the chest, Mark Deas said that his father did not do make a Heil Hitler salute.  Mark Deas stated the following:

“Can I ask you about ... was there ever an incident where ... well, did you ever get into any physical contact with Rina McAteer?---Yes.

Can you tell the commission about that incident?---It was at an afternoon where me and the head cleaner, Ms McAteer, had a disagreement on talking about cleaners behind their backs, and they had witnesses at the time in the afternoon. She took a cleaner into the cleaning room to have a one-on-one word with her, and I had my cleaning equipment still in the room - wanted to get back in to get my cleaning equipment. She kept the door pushed against me. Tried to get in. Then when I did eventually get into the room, physically put her hands on my chest, pushed me, and I walked away.

Okay?---Got on with my work.

Do you remember if your dad was present?---Yes, he was.

He was?---Yes.

Okay. Do you remember any gestures he may have made towards Rina?---I've heard this ... what she made something like ... assuming that he made a thing with his hand, like Heil Hitler. But he didn’t he just went, "Right, we're going out the room," and that was it. She's making up stories.”

(Transcript p 49/50)

38      Mark Deas stated that Ms McAteer’s cleaning standards were “over the top” and he stated that Ms McAteer pushed buttons to get employees to react.  Mark Deas stated the following:

“Because she'd pushed his buttons?---Yes ... get ... she'd ... fire back at. She knew that he already had - - -

Okay?---Didn't know how to speak back, probably, without reacting in a stupid way.

All right. When you say that she'd push his buttons, what sort of things would she do, do you reckon?---Be right in your face when it came to your cleaning in the school.

Yes?---Using all these tactics against other cleaners, and I did write in about that as well.”

(Transcript p 50/51)

39      Under cross-examination Mark Deas stated that he did not see the letters given to other cleaners after they had been ‘written up’ by Ms McAteer but he was told about them.  Mark Deas confirmed that he had the opportunity to respond to the letter that he was sent about his cleaning standards.

40      Mark Deas stated that there were a number of cleaners including Victoria, Lucy and Marion as well as his father who witnessed Ms McAteer push him in the chest on 18 June 2007.

Respondent’s evidence

41      Mr Porter is currently employed by the Western Australian Police Service.  Mr Porter has worked as a detective and as an investigator and he has also worked in the ethical standards division within the Police Service.  Mr Porter was seconded to work with the respondent in their Professional Standards and Conduct Division on 8 November 2006.

42      Mr Porter stated that he briefed Ms O’Neill about Mr Deas after reviewing Mr Deas’ file which contained the investigator’s report along with records of interviews and other relevant documents.  Mr Porter stated that after Mr Deas responded to the investigator’s report and the respondent’s proposal to terminate him, his submissions were considered by the respondent.

43      Mr Porter gave evidence that he reviewed the memorandums given to Ms O’Neill containing the proposal to terminate Mr Deas’ employment (Exhibits R11 and R12).

44      Mr Porter stated that Mr Deas was terminated because of his ongoing poor conduct and for failing to abide by the written directive given to him on 16 May 2007 (Exhibit R5).  As Mr Deas continued to exhibit inappropriate conduct an investigation was conducted and there was clear evidence that Mr Deas had breached the written directive.  Mr Porter stated that the options open to the respondent was to reprimand or dismiss him and Mr Porter stated that after talking to the investigator and other people in the standards and integrity area it was appropriate in the circumstances that Mr Deas be dismissed.  Mr Porter stated that transferring Mr Deas to a different school was not an option because Mr Deas had demonstrated that his behaviour would not change so there was no point in transferring him.

45      Under cross-examination Mr Porter stated that he was unsure if the warnings given to Mr Deas prior to 16 May 2007 were verbal or written warnings and he was unaware if Mr Deas had accepted that these warnings were appropriate.

46      Mr Porter stated that even though the letter dated 16 May 2007 from Ms Fortune to Mr Deas did not state that it was a reprimand he took it as being a reprimand (see Exhibit R5).

47      Mr Porter confirmed that the respondent does not have a written disciplinary procedure for employees employed in Mr Deas’ classification.

48      Mr Porter stated that he understood that the complaints against Mr Deas prior to 18 June 2007 were properly founded and he was unaware if a right of reply had been given to Mr Deas in each instance and he stated that he assumed that the complaints had been properly dealt with.

49      In re-examination Mr Porter said he accepted the veracity of the correspondence generated by Ms Fortune with respect to Mr Deas’ behaviour.

50      Mr Porter stated that Mr Deas was terminated because of his ongoing inappropriate behaviour and because he had been given several warnings that this behaviour needed to change and as his behaviour did not change he was terminated.

Applicant’s submissions

51      The applicant submits that Mr Deas was unfairly dismissed because he was denied procedural fairness and natural justice given the manner of his termination.  Mr Deas is seeking reinstatement.

52      The applicant argues that the applicant and Mr Deas were not given all of the information that the respondent relied upon in order to terminate him therefore they were unable to respond appropriately to the respondent’s decision to terminate Mr Deas.  The applicant also argues that the investigative process was flawed, the work place where Mr Deas worked was an unhappy one and that the difficulties between employees in the cleaning area should have been mediated.

53      The respondent took into account Mr Deas’ alleged prior misconduct but did not check the veracity of Mr Deas’ previous behaviour and whether or not he was treated unfairly or denied natural justice given the process used when this correspondence was generated.  Letters given to Mr Deas prior to the incident of 18 June 2007 had different headings, they were vague and did not provide any opportunity for Mr Deas to properly respond to the allegations made against him.

54      The applicant argues that Mr Deas’ termination was disproportionate to what the investigator found to have occurred during the incident of 18 June 2007 and Mr Deas could have been warned if he was found to have given a salute to Ms McAteer.

55      The applicant argues that the respondent’s own documentation confirms that Mr Deas was denied natural justice and the applicant also claims that Mr Deas made efforts to mitigate his loss but this was hampered because he was unable to obtain work within the Western Australian Government school system (see Exhibit R11).

Respondent’s submissions

56      The respondent maintains that the respondent had good reason to terminate Mr Deas.  The respondent argues that at all times Mr Deas was afforded natural justice and procedural fairness when he was subject to the respondent’s disciplinary processes and procedures.  The respondent submits that Mr Deas was terminated after sufficient warnings or notice of the need to improve or change his behaviour was given and when this did not occur a directive was issued that he ultimately breached.  The respondent maintains that correspondence given to and received from Mr Deas subsequent to the incident on 18 June 2007 demonstrates that he had the opportunity to respond to the respondent’s view that he be terminated and his responses were taken into account.

57      In the alternative the respondent argues that if there were procedural flaws in the process used to terminate Mr Deas then this is not fatal to the process (see Pia Madrigali v The City of Cockburn (2006) 86 WAIG 545).

Findings and conclusions

Credibility

58      I listened carefully to the evidence given by each witness in these proceedings and closely observed each witness.  Mr Deas had difficulty understanding some of the questions asked of him and some of his responses to questions put to him were rambling and confusing.  It is my view however that even though Mr Deas’ evidence was at times unclear he was not deliberately misleading the Commission.  I also formed the view however that Mr Deas was not as forthcoming as he could have been about some issues, particularly his interactions with Ms McAteer on 18 June 2007.

59      I have confidence in the evidence given by all of the other witnesses.  In my view they gave their evidence honestly and to the best of their recollection and I therefore accept the evidence they gave in these proceedings.

60      The test for determining whether a dismissal is unfair or not is well settled.  The question is whether the employer acted harshly, unfairly or oppressively in dismissing the applicant as outlined by the Industrial Appeal Court in Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385.  The onus is on the applicant to establish that the dismissal was, in all the circumstances, unfair.  Whether the right of the employer to terminate the employment has been exercised so harshly or oppressively or unfairly against the applicant as to amount to an abuse of the right needs to be determined.  A dismissal for a valid reason within the meaning of the Act may still be unfair if, for example, it is effected in a manner which is unfair.  However, terminating an employment contract in a manner which is procedurally irregular may not of itself mean the dismissal is unfair (see Shire of Esperance v Mouritz (1991) 71 WAIG 891 and Byrne v Australian Airlines (1995) 61 IR 32).  In Shire of Esperance v Mouritz (op cit), Kennedy J observed that unfair procedures adopted by an employer when dismissing an employee are only one element that needs to be considered when determining whether a dismissal was harsh or unjust.

61      Paragraphs 4 to 12 of this decision set out the background to this application and need not be repeated.  It was also not in dispute and I find that throughout Mr Deas’ employment at MSHS from January 2004 to November 2007 he was given four letters about his performance and behaviour culminating in a letter dated 16 May 2007 from Ms Fortune whereby Mr Deas was required to abide by two directives on information provided to Ms Fortune by Ms McAteer (see Exhibit R5 and paragraph 4).  Subsequent to Mr Deas receiving this letter a complaint was made by Ms McAteer about Mr Deas’ behaviour on 18 June 2007 and Mr Smyth was appointed by the respondent to conduct an investigation into whether or not Mr Deas had breached both directives.

62      In his report Mr Smyth describes the alleged incident on 18 June 2007 which he investigated as follows:

“On the 18 June 2007, the respondent [Mr Deas] and the complainant [Ms McAteer] were in the cleaner’s office at work when an argument ensued about the respondent leaving early that morning.  Also present was the respondent’s son, Mark who is also employed as a cleaner at the school.  During the course of the argument, it is alleged that the respondent and his son both made “Nazi” salutes towards the complainant and the respondent also referred to her as “Hitler”.”

(see Exhibit R1 paragraph 1.12)

63      After detailing the persons he interviewed about this incident and other matters concerning Mr Deas, Mr Smyth made findings about whether or not Mr Deas had breached the directives.  Mr Smyth stated the following in relation to the first directive:

“In respect of the allegation that the respondent [Mr Deas] breached this directive, I find that the allegation is proven.  By engaging with another staff member and making the “Nazi” gestures towards the complainant which she alleged and he later admitted to me when interviewed and also by making constant derogatory remarks to the complainant about her age and abilities, which she alleged and he also admitted, his actions, words and conduct were certainly intimidating to the complainant.”

(Exhibit R1 paragraph 4.1)

Mr Smyth stated the following in relation to the second directive:

“In respect of the allegation that the respondent [Mr Deas] breached this directive, I find that there is insufficient evidence to make judgement (sic) and hence, the allegation is not proven.  I have reached this conclusion by looking at matters purely between the date of the directive and the final day the complainant worked with the respondent [Mr Deas] when she was able to issue such “lawful orders” (18 June 2007).”

(Exhibit R1 paragraph 4.1)

64      After considering the evidence given in these proceedings and reviewing the exhibits I find that Mr Deas was denied procedural fairness and natural justice given the manner of his termination.

65      There is no dispute and I find that after Mr Smyth completed his report a copy was forwarded to Mr Deas around the end of July 2007 for his comment on ‘the evidence’ contained in that report and on his behalf the applicant responded by claiming that there was insufficient evidence for the respondent to support the claim that Mr Deas had behaved inappropriately and referred to a personality clash between Mr Deas and Ms McAteer.  In reality Mr Smyth’s report did not contain any ‘evidence’ but the report was a summary of who he interviewed and it included his conclusions about whether or not Mr Deas had breached the directives after conducting his investigation.

66      I find that Mr Deas was denied natural justice when the respondent informed him that he was being terminated because his behaviour on 18 June 2007 breached one of the directives given to him on 16 May 2007 and he was only asked to respond to why his behaviour on this date should not result in his termination.  I have reached this conclusion on the basis that the respondent relied on a number of events and not just on what occurred on 18 June 2007 when reaching a decision to terminate Mr Deas, and Mr Deas was not given any opportunity to comment about these other events and issues and whether or not in all of the circumstances Mr Deas should have been terminated.

67      Ms O’Neill’s letter dated 28 September 2007 informed Mr Deas that after the respondent had investigated a complaint made by Ms McAteer about his behaviour towards her during an incident at MSHS on 18 June 2007 the respondent had formed the view that he had breached the first directive given to him on 16 May 2007 by Ms Fortune and that as a consequence of this breach the respondent proposed to terminate his employment.  In my view this confirms that Mr Deas was advised by the respondent that he was being terminated because his behaviour on 18 June 2007 breached the first directive.  Relevantly Ms O’Neill stated the following after identifying the directive the respondent believed Mr Deas had breached:

“Specifically, it was alleged and subsequently found, that during an incident at the school on 18 June 2007 you breached the above directive by your conduct towards Ms McAteer, a member of staff.  Such behaviour cannot be tolerated.”

(extract from Exhibit R8)

The respondent then gave Mr Deas an opportunity to respond to its view that as a result of breaching this directive on 18 June 2007 he should be terminated.  When the applicant responded on behalf of Mr Deas on 7 November 2007 and given Ms O’Neill’s reference to Mr Deas’ conduct on 18 June 2007 the applicant stated that at the time of the incident Mr Deas was suffering from anxiety and therefore acted irrationally towards Ms McAteer and recommended that Mr Deas be reprimanded instead of being terminated.

68      It was also the case that Mr Smyth did not restrict his investigation to the events of 18 June 2007 when finding that Mr Deas had breached the directive.  Given Mr Smyth’s conclusions in his report about whether or not Mr Deas had breached the first directive it is apparent that he took into account Mr Deas’ comments to Ms McAteer about her age which Ms McAteer did not claim was stated to her by Mr Deas on 18 June 2007.  At paragraph 4.1 of his report Mr Smyth concludes that after being issued with the directive Mr Deas made constant derogatory remarks to Ms McAteer about her age and abilities and as these actions, words and conduct were intimidating towards Ms McAteer these actions in his view contributed to Mr Deas breaching the directive.  However, it is clear from Ms O’Neill’s letter dated 28 September 2007 that Mr Deas was only invited to respond to his actions on 18 June 2007.

69      The internal memorandum to Ms O’Neill from the respondent’s Standards and Integrity Directorate dated 5 September 2007, which detailed relevant background to assist Ms O’Neill to determine whether or not Mr Deas should be terminated makes reference to a considerable amount of documentation concerning Mr Deas’ alleged similar behaviour after he was served with Mr Smyth’s report.  At paragraph 8 of the memorandum Mr Vidovich advises Ms O’Neill of the following:

“You will see within the file considerable documentation concerning Mr Deas’ alleged similar behaviour since he was served with the report. (my emphasis)  A decision was made by Mr Graeme Wright, Manager of Education Services, Swan District Office in consultation with Ms Gay Fortune, Principal at Morley Senior High School to direct Mr Deas away from the school until further notice.  There has been considerable consultation between Mr Smyth, the school and also Elizabeth McAdam from Labour Relations and the situation is being managed locally at this point.  This Directorate has deliberately had no involvement in the processes and decisions made with regards to these specific issues except to assist with the wording of a letter sent to Mr Deas to remain away from the school.  The separate issue they are dealing with formed no part of the investigative decision making or findings.  The decision to direct Mr Deas away from the school was made after the decision Trevor Porter made in advocating the termination of Mr Deas’ employment.”

(extract Exhibit R11 dated 5 September 2007)

Even though the respondent maintained that this additional documentation was not taken into account when recommending to Ms O’Neill that Mr Deas be terminated nevertheless Ms O’Neill had access to this documentation which claims to reflect a pattern of behaviour on the part of Mr Deas subsequent to 18 June 2007 and this information may well have been taken into account by Ms O’Neill when deciding to terminate Mr Deas as this memorandum was provided to her prior to her making a decision to terminate Mr Deas.  As this information was before Ms O’Neill as additional information and as no details about the nature of this alleged behaviour were provided to Mr Deas nor were copies or information about this documentation provided to Mr Deas or the applicant to respond to prior to Mr Deas’ termination I find that Mr Deas was thereby denied procedural fairness (Exhibit R11).

70      The two memorandums given to Ms O’Neill as background to assist her to determine whether or not Mr Deas should be terminated and the evidence given by Mr Porter confirms that the respondent not only relied on Mr Deas behaviour on 18 June 2007 but also took into account correspondence given to Mr Deas prior to 16 May 2007, which the respondent understood to be reprimands, to reach the view that Mr Deas should be terminated.  In Mr Vidovich’s memorandum of 5 September 2007 he stated the following:

“In March and May 2006 he was informed in writing of his substandard performance and also his behaviour and general conduct towards his line manager, Ms McAteer.  Despite being in receipt of these reprimands, his performance and attitude towards Ms McAteer did not improve.  Attempts to manage this at a local level proved unsuccessful.”

(extract Exhibit R11)

Mr Vidovich’s memorandum to Ms O’Neill dated 8 November 2007 states the following:

“Given the limited options of penalty and the previous history of the respondent, a decision was made to terminate his employment.  This was outlined in a letter to Mr Deas on 28 September 2007.”

(extract Exhibit R12)

As these memorandums refer to Mr Deas’ behaviour at MSHS prior to 18 June 2007 and previous reprimands being given to Mr Deas whilst at MSHS being taken into account when the respondent decided to terminate Mr Deas and as Mr Deas was not given an opportunity to respond to the respondent’s reliance on this correspondence I find that Mr Deas was denied procedural fairness.

71      In any event a review of the correspondence given to Mr Deas in March and May 2006 does not demonstrate that Mr Deas was being warned or reprimanded when he received this correspondence and I am not convinced the additional correspondence given to Mr Deas prior to May 2007 which the respondent relied on to form the view that Mr Deas be terminated constituted reprimands.  I also find that this correspondence was not part of a clear and transparent disciplinary process which was properly applied to Mr Deas when concerns were raised by Ms McAteer about his performance and behaviour.

72      In March and May 2006 Mr Deas was informed in writing by Ms Fortune that his performance was substandard and he was also advised that his behaviour and general conduct towards his line manager Ms McAteer was unsatisfactory.  The letter sent to Mr Deas by Ms Fortune in March 2006 is titled “Substandard Cleaning” and claims that Mr Deas had failed two consecutive cleaning inspections and there was also reference to his attitude to his cleaning responsibilities, failure to take directions and continually challenging and questioning the cleaner in charge and Mr Deas was reminded to improve his cleaning standard at the school.  Whilst the letter raises concerns about Mr Deas’ performance and behaviour the letter does not specify that it is a reprimand and Mr Deas was not advised that the letter was disciplinary in nature and could be taken into account at a later date.  On the evidence of Mr Deas no opportunity was given to him to discuss these issues with Ms Fortune prior to this letter being generated nor was Mr Deas given the opportunity to respond in writing to the complaints made about him and Mr Deas also gave evidence that no discussions were held between Ms Fortune, Ms McAteer and Mr Deas about how Mr Deas’ cleaning standards and his relationship with Ms McAteer could be improved and on the evidence of Mr Deas no effort was made by Ms Fortune to mediate these issues between Ms McAteer and Mr Deas.  Even though Mr Deas gave evidence about having one meeting with Ms Fortune it did not appear to be a formal disciplinary meeting and Mr Deas was only advised at the time to seek clear instructions from Ms McAteer.

73      The letter given to Mr Deas on 15 May 2006, headed “Performance Management” informs Mr Deas that the respondent did not consider that he was performing to a satisfactory standard as a Cleaner Level 2 and his performance was unsatisfactory with respect to cleaning standards.  Reference is also made in the letter to “Continued Undermining of authority of Cleaner in Charge” and “Argumentative with Cleaner in Charge” and Mr Deas was reminded that if he was unable to meet the required standard of performance action may be taken by the Director General under s239 of the SE Act and s 79 of the PSM Act, which are sections of legislation which do not apply to Mr Deas, and Mr Deas was invited to provide in writing an explanation for his unsatisfactory performance in the areas listed by 25 May 2006 and a further inspection of the cleanliness of the school was to occur on 26 May 2006.  There was no discussion with Mr Deas prior to this letter being sent about what was alleged against him, this letter did not state that it was disciplinary in nature or constituted a warning or reprimand about his behaviour and performance and there was no reference in the letter to what if any training or follow up would be put in place to assist Mr Deas to come up to the required standards of behaviour and performance.  There was no documentation confirming what if anything occurred subsequent to this correspondence in relation to Mr Deas’ cleaning standards but I note that until a letter was sent to Mr Deas on 16 May 2007 by Ms Fortune about his behaviour no other correspondence from Ms Fortune with respect to any issues concerning problems with Mr Deas’ cleaning standards since May 2006 appears to have been sent to Mr Deas, which is a lengthy period.  Additionally, Mr Deas gave evidence during his interview with Mr Smyth that he had improved his cleaning standards since receiving these letters.  Again, apart from Mr Deas being given the opportunity to “explain his unsatisfactory performance”, no effort was made by Ms Fortune to mediate the issues in dispute between Mr Deas and Ms McAteer.

74      I also have concerns about the nature of the correspondence given to Mr Deas on 16 May 2007 by Ms Fortune.  In this letter she refers to Mr Deas’ repeated failure to follow directions without attitude (sic) and continual dispute (sic) of cleaning directions by the cleaner in charge and the letter also refers to a copy of a complaint sheet outlining the details of these claims which was purportedly attached to this letter.  Mr Deas could not recall receiving this complaint sheet nor was a copy of this sheet provided during the proceedings, nor was it attached to this letter which was tendered by the respondent so it may well be the case that the complaint sheet specifying the areas in which Mr Deas needed to improve was not attached to the letter when it was given to Mr Deas.  Reference is also made to “the very serious matter of you inciting other cleaning staff to also refuse to follow directions” from the cleaner in charge however no details were provided to Mr Deas in this letter about this allegation.  Notwithstanding this lack of detail Mr Deas was given seven days to respond to these allegations if he wished to do so and Mr Deas was then reminded about the Western Australian Public Sector Code of Ethics and he was then issued with the two directives which were the subject of Mr Smyth’s investigation.  Reference is then made by Ms Fortune about ensuring that Mr Deas receives procedural fairness by Ms Fortune reminding him that the directives were lawful orders and that failure to follow them may be referred to the Standards and Integrity Directorate for investigation as a breach of discipline for which sanctions can apply if proven and attached to this letter was a copy of the Staff Conduct: Standards of Conduct and Integrity for Mr Deas to look at.  Mr Deas’ attention was drawn in particular to s 3.1 - Breach of Discipline of this document and also page 7 the Western Australian Public Sector Code of Ethics and Ms Fortune stated that she was available to meet with Mr Deas if he wished to do so.  There is no evidence that Mr Deas received details about the specific complaints that were made by Ms McAteer against Mr Deas thus giving him no opportunity to be appraised of what was being alleged against him, there was no evidence that Ms Fortune investigated whether or not Mr Deas had acted in the manner claimed by Ms McAteer prior to Ms Fortune issuing the directives to Mr Deas thus denying him the opportunity to be heard with respect to these claims and Ms Fortune’s reference to the failure to follow lawful orders “may be referred to the Standards and Integrity Directorate for investigation as a breach of discipline for which sanctions can apply” is vague and does not give a clear indication to Mr Deas that termination could result from any further contravention of these directives.  Furthermore, Ms Fortune refers Mr Deas to s 3.1 - Breach of Discipline in the Staff Conduct: Standards of Conduct and Integrity document which does not apply to Mr Deas.  On the evidence of Mr Deas, Ms Fortune did not speak to Mr Deas about the seriousness of what was contained in this letter for Mr Deas’ ongoing employment nor did Ms Fortune attempt to mediate the issues in dispute between Mr Deas and Ms McAteer.  In my view it was as though Mr Deas was being set up to fail.

75      Whilst it is clear that Mr Deas’ interactions with Ms McAteer were less than satisfactory it appears that Ms McAteer was quick to warn all employees including Mr Deas, without consultation, if she believed they were not confirming to her requirements.  Not only were these ‘warnings’ unilateral it appears that Ms McAteer’s complaints about employees were not part of a clear and transparent process and were not part of a known, understood and in my view fair disciplinary process.

76      It is not always the case that a denial of procedural fairness will result in a finding that an employee has been unfairly terminated however in all of the circumstances of this case I find that Mr Deas was unfairly terminated as he was denied procedural fairness and natural justice at all stages prior to and during the process of his termination and in my view this fatally tainted all of the respondent’s disciplinary proceedings against him.

77      It is also my view that it is unclear whether or not Mr Deas made a Nazi salute towards Ms McAteer on 18 June 2007 thereby bringing into doubt Mr Smyth’s conclusion that Mr Deas breached the first directive given to him by Ms Fortune on 16 May 2007.  Mr Smyth’s report records that Mr Deas agreed that he made a Nazi gesture towards Ms McAteer.  In contrast Mr Deas gave evidence at the hearing that he did not recall making a Nazi gesture towards Ms McAteer on 18 June 2007 notwithstanding an apparent confirmation in the applicant’s background to the orders being sought which states that Mr Deas abused Ms McAteer and made a derogatory hand gesture on 18 June 2007 (see paragraph 2 above - applicant’s background [d]).

78      Mr Deas gave the following evidence at the hearing about what transpired during the incident on 18 June 2007:

“Do you recall any sort of incident where you're said to have made some sort of Nazi gesture towards Rina McAteer?---No, I never … that was the time … that was the time we were going to sign off.  Sign on, sign off.  She was in the cleaning room with the ladies … a couple, they couldn't get in.  And she came back … she came out and she shoved the son Mark in the chest.

Can you just slow down a little bit?---Shoved him out the door.

Let's just - - -?---Pushed him out the door.

Okay.  Let's just slow down a little bit here.  So this is the incident that you were investigated for?---Yes.

You came into the school and what happened?  Just slowly.  It's just that everyone is trying to take notes?---Just I came in … we came in (indistinct) all we want to do is sign off or sign on.  I can't remember.  And she's always in the room with the ladies.  The door's locked.  We opened the door up and she came out and she pushed Mark out the road … the son out the road, and I caught Mark.

All right?---And then she says we made German … we made signs … German signs at her.

You made German signs?---Towards her we put our hand up.

Okay.  All right, sorry?---I says, "All I want is to sign on, get my vacuum cleaner, and go to the job.

Mm'hm?---And she shut the door on us again.  So it seemed like a meeting place for the ladies.

Just so I've got this right, because I admit I missed some of that ... so she was in a room with - - -?---Some of the cleaning ladies.

Right?---Mm.

The door was closed?---The door was closed.

Okay.  And you had to go in there why?---All I wanted to do was to go and sign on and get working … my vacuum cleaners, buckets, and then go.

So you were going in there to sign on and get your equipment and start your shift?---Yes.  Mark was at the door first.  When Mark pushed the door, she pushed it, and then she came out and pushed Mark out the road.

All right, so Mark pushed the door open, did he?---To get in, yes.  He just pushed it open to get in, and she came out and pushed Mark, and I caught Mark.  I just … I was behind Mark.

When you say she pushed Mark, I think you suggested … because these things don't record video, obviously?---On the chest.  Just got hold of him at the chest, just went like that.

Okay.  So just for the transcript, you're using … she used both hands, open palms?---Pushed him out.

Pushed forward?---I was standing at the back, I got Mark.

Okay, so you caught Mark.  And then you made German signs?---I was supposed to have made German signs.

All right.  Do you recall doing that?---No.

(Transcript pp 10/11)

79      In cross-examination Mr Deas stated the following:

“MS HARTLEY: All right. And it was about month later then, Mr Deas ... I think it was on 18 June 2007 ... that this incident occurred with the gestures or the signing that Mr - - -?

---Outside the cleaning room.

I'm not sure exactly where it is?---No, all I done was put my hand up and I says, "Right, we'll wait," and we sat there on the fence, me and the son.  I said, "If we can't get in, we'll wait.  If we're running late, we're running late.  We can only do what we can do."

Okay.  And you're aware of the fact that that then led to an investigation in relation to - - -?---I know she was going to do something.

Yes?---And then Mark turned around ... the son turned around and said, "Well, I'm going to do something because you pushed me out that door," and I caught him coming out the door.  I put my hands out to stop him from going down.  She just put her hands on his chest and shoved him, "Get out."  She shut the door on the two of us again.

And was that ever reported, Mr Deas?---We talked, yeah, about that.

You talked about it?---I talked about it.  Yes, we talked about she'd done.

You told her?---Yes.

You told Ms McAteer?---We told ... well, we told Gay.  We told Rina.

Yes?---Then we've seen Gay.  I told Gay about it, but I don't know what Gay done about it.”

(Transcript pp 27-28)

80      In his report Mr Smyth stated that Mr Deas agreed that he had made the “Nazi” gesture towards Ms McAteer on 18 June 2007.  A transcript of Mr Smyth’s interview with Mr Deas on 26 June 2007 was forwarded to the Commission subsequent to the hearing.  The relevant parts of this transcript are as follows:

“MS BODDICO:  - - 2007 it's been alleged that you made some derogatory gestures towards Ms McAteer and I might refer to it's been suggested that you may have made a - - a Nazi type salute, can you recall - -

MR DEAS:  A? salute??

MS BODDICO:  A salute.

MR SMYTH:  Like? Zeig Heil.

MR DEAS:  Oh, that was ...(indistinct)... no, that was - - that wasn't me, that was the? son?, that's the time she tossed her (sic) out the room ….. ”

(Department of Education and Training recorded interview p 17)

“MS BODDICO:  Just getting back to the Nazi salute - -

MR DEAS:  ...(indistinct)... that was the time - -

MS BODDICO:  - - can you tell me - -

MR DEAS:  - - that was the time she was in the room, she said?, "Now? youse all don't leave here until five? to?," - -

MS BODDICO:  Yeah.

MR DEAS:  - - and Mark, the? son? Mark said, "Right, right," and? I? said?, "Heil? Hitler?," ...(indistinct)... Julia's just went down the corridor and at the end of the corridor there's a man standing called Laurie - - ”

(Department of Education and Training recorded interview pp 18-19)

“MS BODDICO:  Okay.  So just so we've got it right, it was your son that made that salute?

MR DEAS:  He made it, yes, because she says to him - - she says to him, "Why do you let the women go?  You wouldn't let us go, the men go," and Chris says, "She doesn't like the men," - -

MS BODDICO:  Okay.

MR DEAS:  - - and I said, "Well I'm? going? to? hang? back?, I'm going to stay in my own area till five to and I'll walk out and shut the door and? then? I'll? ...(indistinct)... put my keys up and I'll walk out."

MS BODDICO:  Okay.

MR DEAS:  ...(indistinct)... since that day Gaye told me 2 months ago.

MS BODDICO:  Okay.  Did you make a salute yourself as well?

MR DEAS:  ...(indistinct)... say, "Heil? Hitler?," and walked away with? my? vacuum cleaner.

MR SMYTH:  For the purpose of the tape - -

MR DEAS:  ...(indistinct)... Heil? Hitler?, I just said?, "Heil? Hitler?," ...(indistinct)...

MR SMYTH:  - - ...(indistinct)... - -

MS BODDICO:  Raised a? hand.

MR SMYTH:  - - raised? your left hand.

MR DEAS:  ...(indistinct)...

MR SMYTH:  ...(indistinct)... well you're raising your right now but - -

MR DEAS:  ...(indistinct)...

MR SMYTH:  - - ...(indistinct)...

MR DEAS:  ...(indistinct)... and walked way.

MS BODDICO:  Okay.

MR DEAS:  ...(indistinct)... lady still walked away.”

(Department of Education and Training recorded interview pp 19-20)

81      A review of the transcript of Mr Smyth’s interview with Mr Deas in my view does not confirm that Mr Deas agreed that he made the “Nazi” gesture or salute towards Ms McAteer on 18 June 2007.  Even though the transcript demonstrates that Mr Deas did not give direct answers to the questions asked of him and it was difficult to understand exactly what he was saying at times given his rambling responses to questions Mr Deas states clearly that it was his son that made the ‘Nazi’ salute.  Specifically, at page 27 of the transcript of the hearing Mr Deas confirms that put his hand up but he does not state that it was in the form of a “Nazi” salute and he told Mr Smyth that it was his son Mark Deas who made a “Nazi” gesture (Department of Education and Training recorded interview p 17).  Apart from Mr Smyth referring to Ms McAteer making this allegation there is no specific confirmation that Mr Deas made the “Nazi” gesture (salute) towards Ms McAteer in the form of a single hand being raised and other cleaners who witnessed the incident between Ms McAteer and Mark Deas and Mr Deas, according to Mark Deas, ‘Victoria’, ‘Lucy’ and ‘Marion’, may have been of assistance to verify whether or not Mr Deas made the “Nazi” salute towards Ms McAteer however they do not appear to have been interviewed by Mr Smyth and there is no reference made to them being interviewed in his report.  As there was uncertainty as to whether or not Mr Deas made the “Nazi” salute towards Ms McAteer when Mr Smyth interviewed Mr Deas I find that it was not open for Mr Smyth to rely on this action on the part of Mr Deas to form the view that this contributed to Mr Deas breaching the directive as a result of this alleged behaviour on 18 June 2007.

82      Mr Smyth does not make any specific finding as to whether or not Mr Deas said Heil Hitler to Ms McAteer as outlined in the alleged incident at paragraph 1.12 of his report however Mr Deas conceded in his interview with Mr Smyth that he said the words “Heil Hitler” in response to Ms McAteer’s interactions with himself and Mark Deas on 18 June 2007.  It is to this extent in my view that Mr Deas could be said to have breached the first directive.

83      Even though Mr Deas conceded that he said “Heil Hitler” to Ms McAteer on 18 June 2007 during his interview with Mr Smyth, given the circumstances of the incident as a whole and on the evidence of Mr Deas and Mark Deas that Ms McAteer pushed Mark Deas it may well be the case that because Ms McAteer’s actions during this incident involved physically pushing an employee she should take some share of the blame for Mr Deas making this comment.  I also note that whilst Mr Deas was found to have made other derogatory remarks towards Ms McAteer and Mr Smyth maintains that Mr Deas agreed that he did so a review of the transcript reveals that Mr Deas did not concede that he made constant derogatory remarks towards Ms McAteer.  What Mr Deas did confirm was that, along with a number of other cleaners, he told Ms McAteer, who was over 70 years of age and suffered ill health from time to time, that she should retire.  In my view this reference to Ms McAteer possibly retiring does not constitute a pattern of behaviour which could be characterised as constant derogatory remarks being made about Ms McAteer’s age and abilities.  In the circumstances I find that this comment towards Ms McAteer did not constitute sufficient grounds for Mr Deas to be terminated.

84      I find therefore that in all of the circumstances of this case Mr Deas was unfairly terminated (see Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch [op cit]).

Reinstatement/Compensation

85      Mr Deas is seeking reinstatement and the onus is on the respondent to establish that reinstatement or re-employment is impracticable (see Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327; Gilmore v Cecil Bros & Ors (1996) 76 WAIG 4434 and (1998) 78 WAIG 1099).  The issue of reinstatement was considered by the Full Bench in Gonzalo Portilla v BHP Billiton Iron Ore Pty Ltd (2005) 85 WAIG 3441.  In this decision the Full Bench clarified the Commission’s powers when dealing with employee’s reinstatement.  His Honour the President and Kenner C stated the following at page 3458:

“The statute prescribes that the Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before the dismissal (s23A(3) of the Act).

The Commission also has the power, if it considers reinstatement impracticable, and only then, to order the employer to re-employ the employee in another position that the Commission considers the employee has available and is suitable.”

86      Mr Deas gave evidence that he is fit to return to work and he stated that he was prepared to return to work at a different workplace and there was no evidence that Mr Deas was incapable of returning to work with the respondent or that it was inappropriate for him to do so.  Given that I have found that Mr Deas was unfairly terminated I am of the view that Mr Deas should therefore return to his employment with the respondent.

87      The weight of evidence given in these proceedings lends support to Mr Deas’ claim that Ms McAteer was domineering towards some employees and she set high standards and rigorously enforced these standards.  It also appears that she was not averse to pressuring employees to have her way and she was at times abusive towards Mr Deas by calling him a “f- ing dickhead” and telling him “What are you doing up here you dickhead?” (Department of Education and Training recorded interview pp 8 and 35).  It was within this context in my view that a substantial amount of friction arose between Ms McAteer and Mr Deas and the tenor of their interactions could well be described as being “robust” on both sides.  I find that greater effort should have been made by the respondent to assist in mediating the issues in dispute between Mr Deas and Ms McAteer rather than sending Mr Deas letters which in reality did not deal with the issues in dispute between Mr Deas and Ms McAteer and if the respondent had clear and understandable disciplinary procedures and processes in place for employees working in Mr Deas’ classification this would also have assisted in bringing a more timely and effective process to deal with the dispute between Mr Deas and Ms McAteer.

88      I accept that Mr Deas made some efforts to mitigate his loss by seeking employment as a cleaner in two private schools for relatively short periods.  However in my view Mr Deas could have been more diligent in seeking out alternative employment even though he was unable to apply to work as a cleaner within the Western Australian Government school system.  However, it is also clear that Mr Deas has not been a ‘model’ employee, he is headstrong and quick to stand his ground, and he has also been subject to a range of concerns as detailed in correspondence about his behaviour and performance from Ms Fortune.  In my view questions therefore remain about Mr Deas’ behaviour and attitude in general, particularly his attitude towards supervisors, even though I accept that Mr Deas worked on improving his unsatisfactory cleaning standards after this was brought to his attention in 2006 (Department of Education and Training recorded interview pp 27-28).

89      In the circumstances and after carefully considering all of the issues with respect to this case it is my view that Mr Deas not be reinstated to his previous position as at the date of his termination but that he be re-employed given that Mr Deas has not been a model employee and I am of the view that Mr Deas should take some responsibility for his actions and poor behaviour.  I therefore am of the opinion that he should be re-employed as a cleaner at a different high school effective from the beginning of Semester 2, 2008 and an order will issue to that effect.  I will also order that Mr Deas’ accrued entitlements shall be reinstated, his service with the respondent be treated as being continuous with the break between his termination and re-employment being treated as leave without pay and that he be given compensation in the form of lost wages after the beginning of Semester 2, 2008 less any earnings from that date until the date of Mr Deas’ re-employment.