DISPUTE RE ALLEGED UNFAIR DISCIPLINARY PROCESS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2015 WAIRC 00798

DELIVERED : Thursday, 13 August 2015

FILE NO. : CR 13 OF 2015

Applicant

AND

The Governing Council of Kimberley Training Institute

Respondent

CatchWords : Matter Referred for Hearing and Determination pursuant to s 44 – Harsh, oppressive or unfair dismissal – Interim Restraining Order – Misconduct – Inappropriate behaviour – Disciplinary process – Code of Conduct – Occupational Health and Safety policy – Public Sector Code of Ethics – Appropriate penalty – Reinstatement

Legislation : Industrial Relations Act 1979

  Public Sector Management Act 1994  s 9

Result : Declaration and Order issued

Representation:

Applicant : Mr M Amati

Respondent : Mr D Anderson of counsel

Reasons for Decision

1         The applicant claims that the respondent (KTI), has harshly, oppressively or unfairly dismissed its member, Mr James (Alex) Petticrew.  It also claims that the respondent’s treatment of Mr Petticrew in the time since it first dismissed him 16 months ago until it finally dismissed him on 28 May 2015 has also been callous, unreasonable and unfair.  The applicant seeks that Mr Petticrew be reinstated without loss.

Agreed facts

2         The parties have agreed the following facts: 

1. On 24 February 2014, Mr Petticrew was in a Vocational Education and Training in Schools class (VETiS) talking to Darrel Lee, the lecturer for the VETiS class. 

2. Mr Petticrew was approached by Master Harry Claydon, a student of the VETiS class; whom he knew as he is a friend of his daughter. 

3. Mr Petticrew asked Master Claydon if he had seen Jake Brooks.

4. Master Claydon told Mr Petticrew that he had not seen Jake Brooks.

5. Mr Petticrew told Master Claydon to give Master Brooks a message that if he saw Master Brooks near his home he would break his fucking legs.

6. Mr Petticrew’s comment was overheard by at least one other student.

Statement of Agreed Facts
filed 23 July 2015

Background

3         Mr Petticrew was employed by the respondent from 21 January 2008 as a Lecturer, Maritime Security, that is, for over six years until it first dismissed him. 

4         Mr Petticrew has a daughter.  In 2014 she was around sixteen years of age.  She was friendly with two students, Harry Claydon and Jake Brooks, both around sixteen years of age.  Mr Petticrew’s family and Jake Brooks’ mother, Ms Lisa Griffin, had known each other since their children were small and had been friendly for many years.  According to Mr Petticrew, Jake often came to his house.  However in recent times, Mr Petticrew’s house had been burgled a number of times.  On one occasion he had found Jake in the house at night unexpectedly.  He had Jake stay the night on the couch.  When Mr Petticrew got up the next morning Jake had already left and money was missing from Mr Petticrew’s wallet.  Mr Petticrew strongly believed that Jake was responsible for the burglaries and for the money having gone missing. 

5         Although Jake was a high school student, he was also enrolled at KTI for a VETiS program but he was not at the same campus as Mr Petticrew, nor was he one of Mr Petticrew’s students.

6         Mr Petticrew also knew Harry Claydon through his daughter and Harry Claydon knew that Mr Petticrew was a lecturer at KTI.

7         On 24 February 2014, Mr Petticrew was working at the KTI Broome campus when he called in to the automotive workshop on campus to see if he could obtain some advice from the lecturer about repairs to his own trailer.  At the time there was a class of VETiS students working in the workshop.  Mr Petticrew walked into the workshop and was speaking to the lecturer, Mr Darrel Lee.  Harry Claydon approached Mr Petticrew and greeted him.  As set out in the agreed facts, Mr Petticrew asked Harry if he had seen Jake Brooks.  After Harry responded, Mr Petticrew told Harry to give Jake a message that if he saw Jake near his house he would ‘break his fucking legs’.  Mr Petticrew’s comment was overheard by Mr Lee and at least one other student.

8         By a series of emails, Ms Karen Dickinson, the Managing Director of KTI, and Mr Petticrew communicated regarding the incident.  In particular, by email dated 27 February 2014 at 11.16 am, Mr Petticrew wrote to Ms Dickinson among other things as follows: 

I am outlining for you the reasons for my outburst on Monday.  I was talking Darrel Lee in autos when a student whom I know as Harry, as he is a friend of my daughters, approached me and said hello.  I responded and asked if he had seen Jake to which he replied he had seen him on Saturday night.  I told him to give him a message from me that if I saw him near my home I would break his f****** legs.  This may have been overheard as another student said he had seen on facebook that he had robbed my home on Saturday night.  In retrospect, I admit I was probably wrong passing comment in front of students.  It was a heat of the moment comment.

Since last year, I have been battling some personal issues regarding my daughter, combined with a very tense time during the audit process and trying to keep up delivery at the same time.  More recently, I have had a number of medical procedures and, I suppose, on top of being robbed 5 times, I guess, on Monday I just lost it.  Inappropriate, I know, but many a word is spoken in haste and I deeply regret my actions.  I have taken this on board and I am trying to deal with this.  I believe, given the circumstances that your offer of counselling would be a wise decision on my part and I am investigating anger management assistance.  If I may, I would like to give you some background and perhaps an explanation as to why I am so frustrated with this situation.

We have been friends of Lisa Griffin (Jake’s mother) for almost 14 years.  My daughter and Jake attended early childhood school from the year 2000, we always thought they would end up getting married.  Since their return from Perth we have noticed a marked change in Jake’s behaviour and have found that he is heavily into drugs.  I have banned him from my house for this reason, however in saying that he turned up here a few months ago saying that his mother had kicked him out of their house and he was hungry and had no where to go.  We fed him and gave him a bed for the night after advising his mother that he was safe.

Our thanks, he began robbing us.  The police are at their wits end as he is a minor and little can be done.  We know it is Jake because he is the only one who can get past our dog.  We have been burgled a total of 5 times now, most recently last Saturday night and frankly I am at my wits end.  We have always had a good relationship with Jake’s mother and not long ago she came to our home begging for help as Jake had not been home for 3 weeks and she did not know whether he was alive or dead.  I made the comment that he probably needed a good flogging to knock some sense into him.  She replied ‘you have my permission’

On Sunday morning I went to see Lisa and was met at the door where she immediately began defending Jake.  As mother’s do.  I realised that it was a no win situation and left.  I am telling you this because Jeff mentioned it yesterday.  I must stress that this had absolutely nothing to do with KTI and no reference was made about KTI so I believe this to be of no relevance whatsoever.  I have been told that a group of students from BSHS are going looking for Jake this weekend and I have conveyed this information to police.

In closing, an early resolution to this matter would be appreciated whatever your decision may be as I have students to consider. If, however your decision is not favourable then I need to make arrangements to move on.

Exhibit 1, Document 5

9         Also, on 27 February 2014, Mr Petticrew wrote to Jake’s mother, Ms Lisa Griffin, in the following terms: 

Hi Lisa,

I am writing to apologise for my comments at work the other day.  Although I am frustrated with being robbed, and, I am not saying whether Jake is the culprit or not, you know I would never do anything to hurt him.  We have been friends for too long to let this come between us.  My comments were only meant to deter him if it was him.  I have since installed CCTV cameras and perhaps this will identify who the real thief really is.  God, he is like a son to us and we are very sorry to see him off the rails.  We can only hope that he grows out of it quickly before he hurts himself or gets into trouble. 

Once again, my deepest apologies,

Alex

27 February 2014

Exhibit 1, Document 6

Violence Restraining Order

10      In the meantime, Ms Griffin applied for a restraining order against Mr Petticrew on the basis of the incident and other conduct of Mr Petticrew said to have related to Jake.  A copy of the transcript of the hearing before the Magistrates Court of Western Australia for the interim order on 28 February 2014 is included in the Agreed Documents.  The hearing was conducted ex parte.  The Magistrate heard evidence from Ms Griffin as to what Jake had told her and of her own knowledge.  The Magistrate indicated that he would accept that evidence for the purposes of the hearing even though much of it was hearsay. 

11      Ms Griffin noted that Mr Petticrew and Ms Griffin and Jake had been family friends for some time, and that Jake was not at the time living at home and was associating with people who Ms Griffin was not happy for him to associate with.  She said Jake was ‘running amok a bit’.  She noted that Mr Petticrew had alleged that things had been stolen from his home and thought that Jake had taken them.  She described Mr Petticrew as ‘hot‑headed’ and that he had come around to their house and was screaming at her.  She noted that Mr Petticrew was a lecturer at TAFE and her son goes to the aquaculture TAFE on Mondays, and although he was not there at the time that Mr Petticrew went to the classroom, she said Mr Petticrew burst into the classroom full of high school students and said, ‘(indistinct) where the fuck is Jake Brooks?  I’m going to snap his fucking legs off’.  Ms Griffin reported other concerns, including that Jake had had no idea that this had happened until he went to school on the Tuesday.  She said: 

I guess all the kids were talking about it.  You know, there has been conflict that has been addressed by teachers because of the – say, on Saturday night, the two people Jake was hanging out with were also accused obviously by Alex if Jake was with them, they (indistinct) been stealing as well – of thieving I think they call it.  So there has been lots of conflict at school; there’s teachers that had to get involved about, you know, the rumours spreading, and you know, these people who were hanging out, (indistinct) they weren’t happy to be involved in this, and their names kind of tarnished like that I suppose, and they were threatening the students that were saying it, and all kinds of things have happened since, I think.  Yes.  I think more to his reputation at school, he has had to defend himself a lot.  

Exhibit 1, Document 7, page 5. 

12      She also said that Mr Petticrew came to the house in the early morning and was banging on the front window, screaming that ‘if I see your son, I’m going to kill him; I’m prepared to go to jail and do time for this’. 

13      On the basis of this information, the Magistrate issued a restraining order.  In particular, his Honour noted that the threat to kill and to be prepared to go to jail for it was of concern, and that the threat to kill and the threat of assault was ‘an act of abuse’.  He indicated that if Mr Petticrew did not object to the order, it would continue to operate for two years.  If Mr Petticrew objected to it, it would come back to court. 

14      Mr Petticrew did object, and the matter came back to court on Tuesday, 17 June 2014.  On that occasion, Ms Griffin did not attend and the order was cancelled that day. 

Formal disciplinary process

15      By letter to Mr Petticrew dated 28 February 2014, the respondent formally commenced a disciplinary process relating to the incident on 24 February 2014. 

16      In his response dated 12 March 2014, Mr Petticrew admitted that he had spoken the words set out in the agreed facts, although the words used in the allegation were different.  He denied that his comments and behaviour were threatening, disrespectful, irresponsible or unprofessional.  He said that the comments were not intended to be overheard by the class, that they were made in a private conversation.  He denied that he had shouted.  He said that it was a personal issue and that if anyone overheard they should not have repeated it. 

17      By letter dated 24 March 2015, the respondent informed Mr Petticrew that he had been found to have contravened Part 2, section 9 of the Public Sector Management Act 1994, the KTI’s Code of Conduct, and its Occupational Health and Safety policy and, therefore, his behaviour constituted serious misconduct.  He had also contravened the ‘Relationships’ principle of the Public Sector Code of Ethics.  Mr Petticrew was invited to make a response before a decision on the matter was made.  Mr Petticrew responded by letter dated 7 April 2014. 

18      The respondent dismissed Mr Petticrew by letter dated 9 April 2014.

19      Following an application to the Commission, the respondent considered its position, rescinded the findings and reinstated Mr Petticrew, indicating an intention to redo the disciplinary process on the basis of there having been procedural flaws.  Mr Petticrew was reinstated with effect from 15 May 2014 and was placed on suspension with pay pending further investigation.  He was also paid for the intervening period.

20      The respondent then recast the allegations.  The amended allegation made against Mr Petticrew is set out in the respondent’s letter of 15 May 2014, in the following terms: 

Allegation

You have allegedly behaved in a manner that is threatening, disrespectful, irresponsible, and unprofessional and has resulted in bringing the reputation of Kimberley Training Institute into disrepute. 

Particulars

● On Monday, 24 February 2014, you entered a Kimberley Training Institute automotive VETiS class. 

● Jake Brooks, a student of Broome Senior High School, was not in the class. 

● You said to Harry Claydon, a student in the class, ‘where the fuck is Jake Brooks I want to snap his legs off’. 

● You said the above words in front of the rest of the class. 

● You told some VETiS students that you are angry with Jake because he stole your wallet. 

● Referring to Jake Brooks, you told some VETiS students that you will ‘fucking kill him’. 

If substantiated, the allegation above constitutes a breach of discipline in that the allegation is contrary to the Kimberley Training Institute's Code of Conduct (‘Code of Conduct’) which states that Kimberley Training Institute employees are to: 

a) behave in an ethical and professional manner at all times and not act in any way that brings Kimberley Training Institute into disrepute; and

b) treat members of the public and colleagues with respect, courtesy, honesty and fairness, having proper regard for their interests, rights, safety and values.

Additionally, if substantiated, the allegation above also constitutes a breach of discipline in that the allegation is contrary to the Public Sector Code of Ethics, specifically the requirements that public sector employees ‘treat people with respect, courtesy and sensitivity and recognise their interests, rights, safety and welfare’. 

Exhibit 1, Document 15, page 2

21      The process was undertaken again and a decision was made following that process, to dismiss Mr Petticrew on 6 November 2014. 

22      There was a further application to the Commission and in that matter I found that the decision maker did not have authority to have made the decision ([2015] WAIRC 00054; (2015) 95 WAIG 298).  Accordingly, by letter dated 6 February 2015 the respondent again reinstated Mr Petticrew, paid him for the intervening period, and suspended him with full pay. 

23      The respondent then undertook the decision making process again.  Once again, it dismissed Mr Petticrew by letter dated 28 May 2015, having found as follows: 

That is, the Governing Council finds that on Monday, 24 February 2014, you entered a Kimberley Training Institute automotive VETiS class, loudly telling a student of that class and overheard by other students present, that you would fucking break the legs of Mr Jake Brooks, another student of the Kimberley Training Institute, if you caught Mr Brooks near your home.  The Governing Council notes that you have since admitted threatening Mr Brooks because you thought the student had previously robbed your house. 

Exhibit 1, Document 30

24      Mr Petticrew has given some evidence of the effects upon him of this lengthy process and of having been dismissed again. 

Previous conduct

25      Mr Petticrew was subject to allegations of misconduct in 2012.  A number of allegations were not substantiated, however, one was substantiated and another was partly substantiated.  The substantiated allegation was that ‘[o]n Tuesday 30th October you behaved in a manner that is unprofessional and disrespectful.  It is alleged that whilst taking a Security class you took a phone call and told the person on the phone that [X] ‘is fucked’ that you had a copy of [X]’s certificates and ‘[X] wasn’t qualified to teach, doesn’t even have a marine ticket to teach’ (Exhibit 1, Document 3). 

26      The allegation which was partially substantiated was that: 

You have spoken to students (in your Security class) in a manner that is unprofessional and disrespectful.  It is specifically alleged: 

a. That you told one of the student’s ‘I’ll knock your fucking head off if you keep calling me Sir’.

b. You said to the whole class ‘haven’t you fuckers finished yet’

c. You have told the aboriginal students that wherever they go ‘they leave a smell behind’

Exhibit 1, Document 3

27      The allegation was partially substantiated in that the language used in class had been substantiated, however, the context of the allegation is not entirely reflective of the actual situation. 

28      Allegation c. was not substantiated.

29      The letter informing him of the outcome of the process, dated 15 January 2013, noted that there had been a meeting on 13 December 2012, that Mr Petticrew was aware of the respondent’s Code of Conduct in relation to various matters and the letter went on to say: 

During the meeting you were advised and you acknowledged that all staff need to be treated with respect, professionalism, courtesy, honesty and fairness in accordance with KTI’s code of conduct.  As such it was acknowledged and recommended that all conversations regarding staff performance and/or conduct and grievances relating to staff need to be held in private areas with appropriate representatives of KTI so that conversations can be held in confidence.

In relation to the allegation that you spoke to students in an unprofessional and disrespectful manner it was acknowledged that the allegation was not put in context and that the specific allegation relating to the smell of aboriginal people was reported emotively.  Although you have previously used harsh language to develop a report [sic] with students to engage with them it is strongly recommended that you tone your language down to a level that respectfully reflects the KTI SPIRIT demonstrating professionalism and integrity.

Exhibit 1, Document 3

30      The letter went on to note that a copy of the letter would be placed on his personal file.

Penalties available

31      The respondent has available to it a range of different penalties from a reprimand; a transfer to another position at the Institute; a fine not exceeding five days’ pay; a reduction in remuneration within the employee’s existing classification; a reduction in level of classification, dismissal or any two of the above.

Consideration and conclusions

32      The test in the case of a claim of harsh, oppressive or unfair dismissal is whether the employer has exercised its legal right to dismiss so harshly or oppressively against the employee as to amount to an abuse of that right (Ronald David Miles, Norma Shirley Miles and Lee Gavin Miles and Rose and Crown Hiring Service trading as The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, Western Australian Branch (1985) 65 WAIG 385 at 386). 

(a) The restraining order

33      I give the restraining order no weight.  The hearing for the interim order being, as is usual with such applications, conducted in the absence of the respondent to the application.  Ms Griffin was not cross examined.  Secondly, Ms Griffin gave evidence of conduct which is not directly relevant to the employment about what Mr Petticrew did beyond what happened at KTI and it is this which seems to have swayed the Magistrate to grant the order.  Thirdly, Mr Petticrew objected to the order becoming final and Ms Griffin did not attend at the hearing for it to be challenged.  It is of no assistance to speculate as to why she did not attend. 

(b) Misdemeanour

34      The applicant describes Mr Petticrew’s conduct as a misdemeanour, that is as ‘misbehaviour; a misdeed’ (The Macquarie Dictionary, 3rd ed, p 1374).  I do not believe labelling it that way is helpful.  It is appropriate to look at the behaviour itself and its context. 

(c) The behaviour and circumstances

35      The circumstances surrounding the conduct are that Mr Petticrew was at that time a man in his late 50s.  He had been a TAFE lecturer for more than six years.  As soon as the issue was raised with him, by his email of 27 February 2014, he acknowledged he was ‘probably wrong passing comment in front of students’; that it was inappropriate; he explained his conduct, the circumstances directly related to it and his personal circumstances.  He expressed deep regret.  He also explained the other pressures he was under at the time. 

36      Within three days of the conduct, he wrote a letter to Ms Griffin also containing an apology. 

37      What Mr Petticrew has admitted to is this.  As a lecturer at KTI, he went into a workshop where there was a lecturer and students.  During his visit there, in the presence and within the hearing of the lecturer and at least one other student, he asked a sixteen year old male student to pass on to another sixteen year old male student a message containing a threat of physical violence, and in doing so he used language not appropriate for a lecturer of KTI.

38      I accept without reservation what Mr Petticrew says, that students at KTI and young people of his acquaintance use such language amongst themselves and occasionally in their conversation with him.  However, for Mr Petticrew, as a lecturer, the use of such language to those students is not appropriate. 

39      The most significant aspect of the conduct was that it contained a threat of violence against a student of KTI, and that Mr Petticrew told another 16 year old student to convey the threat. 

40      Mr Petticrew’s conduct has a direct connection with his employment in that it was undertaken on the premises of his employer, during the day when he works as a lecturer.  At least one of the students knew Mr Petticrew as a lecturer at KTI, and both the person he asked to convey the message and the intended recipient were students of his employer. 

41      The fact that Mr Petticrew was not Harry Claydon’s or Jake Brooks’s lecturer and knows them from personal rather than work related circumstances is not to the point of the conduct having occurred in relation to or having a direct connection with Mr Petticrew’s employment.

42      It was not a private conversation in that it was undertaken in the presence of and overheard by the lecturer and at least one other student, as Mr Petticrew acknowledges, they were no more than a couple of metres from him.  Had it been a private conversation Mr Petticrew might reasonably have drawn Harry Claydon to one side, out of earshot of the others.  Even if the conversation had been conducted in private, it was not appropriate for Mr Petticrew to make the threat of violence and tell another student to convey the threat.  However, I accept that Mr Petticrew was frustrated at what occurred, he had no real intention of carrying out the threat, he was angry and lost control due to his frustration and anger.

43      In all of those circumstances, Mr Petticrew’s behaviour was threatening, in that he expressed an intention of physical violence.  It was disrespectful to all of those who heard it and towards Jake Brooks, (whether Jake Brooks deserved it or not), it was irresponsible and unprofessional.

44      The agreed documents include KTI’s Code of Conduct which sets out in the usual, generic terms, the standard of behaviour expected of public sector personnel.  It does no more than attempt to set out what ought to be obvious – that is, that in the workplace, people are to treat each other with courtesy, respect and professionalism. 

45      The standard by which to judge workplace conduct is set out by Fielding C in UFTU v Pay‑Co (1990) 70 WAIG 2497 at 2498: 

However, in dealing with workplace differences, it is well to remember that you are dealing with men and not angels.  Employees are apt to act in strange ways, especially when all does not go to plan in the workplace, and if that reaction is confined to an occasional harsh word to a fellow employee then, I suspect, in most cases there ought to be no reason for despair or drastic action.  Things are apt to be said in such circumstances which are little more than hollow bravado or empty rhetoric and which, with the benefit of hindsight, are not likely to be repeated. 

46      It is true that in some workplaces, the type of conduct Mr Petticrew exhibited may be the norm and unexceptional.  In other contexts, such as in a primary school, it might have been far more serious.  However, it was at a TAFE college in the presence of 16 year old youths.  While they may be young, they are not children, nor would they be unfamiliar with the language or type of threat made by Mr Petticrew.  They may have been shocked by it coming from a lecturer, but I find it hard to believe they would have taken it literally. 

47      However, I am not satisfied that the conduct struck at the heart of the contract of employment such as to warrant dismissal, even though it was inappropriate, threatening, unprofessional and disrespectful.  At its highest, it may be seen as misconduct. 

48      However, not every act of misconduct warrants dismissal. 

49      In deciding on an appropriate penalty for such conduct, consideration is to be given to all of the circumstances including the background provided by Mr Petticrew; the age of the students; the explanation provided and contrition shown by Mr Petticrew very soon after the incident; Mr Petticrew’s length of service; his age; the likely effects on him such as to his prospects of finding such work again; the need to move his home and family to other accommodation within the town or even move out of town. 

50      The previous incidents referred to in the letter placed on Mr Petticrew’s file also need to be noted.  The penalty in that case was a letter recommending that he ‘tone down his language to a level that reflects the KTI SPIRIT demonstrating professionalism and integrity’.  It might be seen as a reprimand or a warning but was not couched in terms as strong as either of those words might suggest. 

51      A further consideration is the range of penalties available to the respondent, from a reprimand to dismissal. 

52      I have also taken account of the issue of damage to KTI’s reputation.  This evidence is of students and possibly other young people becoming aware of some aspects of Mr Petticrew’s conduct but they appear to relate more to the behaviour of Jake and his friends.  However, the evidence also indicates that rumours and ‘Chinese whispers’ escalated the reports to include other issues and inaccuracies. 

53      It is true that the matter became the subject of proceedings in the Magistrate’s Court, by the application for and issuing of an interim restraining order and it was noted on the public record.  However, there is no evidence of any real or lasting reputational damage to the respondent.  That does not make the conduct any more or less significant. 

54      In all of these circumstances, I find that dismissal, being the strongest penalty available to the respondent, was disproportionate to the misconduct, and was harsh and unfair. 

55      Even if this were not so, that the respondent failed to manage its own processes to the effect that Mr Petticrew was dismissed three times and reinstated twice over a period of 15 months, and suspended with pay for the whole time, had his housing arrangements threatened and was under the stress of an ongoing bureaucratic process for so long, was oppressive. 

56      Given the penalties available to the respondent, the seriousness of the conduct and Mr Petticrew’s response to it, and what Mr Petticrew has already suffered, a formal reprimand would be an appropriate penalty.  In saying that, it must be clear to Mr Petticrew that further such conduct should be viewed very seriously and Mr Petticrew should be under no illusions about possible consequences. 

57      There is no evidence that reinstatement is impracticable. 

58      Therefore, I find that in all of the circumstances, the dismissal was harsh, oppressive and unfair.  An order will issue for Mr Petticrew’s reinstatement in his former position, and, for the avoidance of doubt, an order that he be paid for remuneration lost, and for him to be issued with a formal reprimand. 

59      It is not my intention to grant the application for documents to be expunged from Mr Petticrew’s personnel file.  He has in fact misconducted himself.  However, a copy of this decision and order ought to be placed on his personnel file.