Unfair Dismissal Claim Dismissed Due to Employee's Email During Leave

The Industrial Relations Commission dismissed an unfair dismissal claim brought by a former employee who was terminated after sending an email during annual leave. The Commission found the email was unnecessary, negative, and sought to belittle the Executive Director, making the termination reasonable.

Industrial Relations Commission of New South Wales

CITATION: [NAME] & [COMPANY]. [2006] NSWIRComm 1127

APPLICANT: [redacted] RESPONDENT: [redacted]

CORAM: [NAME] C

Unfair dismissal claim Applicant worked as the General Manager of the respondent. Very small non-profit organisation. Applicant had been previously warned re anger outbursts and work. Applicant whilst on annual leave sent an email to the Executive Director. CATCHWORDS: Executive Director offended by the contents of the email. Applicant terminated. Commission found that the sending of the email unnecessary . Found that the email was negative and sought to belittle the Executive Director. Found was not an appropriate action for the applicant to take. Application dismissed.

LEGISLATION CITED: Industrial Relations Act ,1996

HEARING DATES: 17/7/06

DATE OF JUDGMENT: 08/15/2006

APPLICANT: [redacted] LEGAL REPRESENTATIVES: RESPONDENT: [redacted]

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: [NAME] C.

15 August 2006

Matter No IRC 1524 of 2006

IN THE MATTER OF: [NAME] and [COMPANY].

Application by [NAME] re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2006] NSWIRComm 1127

Background.

1 On 15 March 2006, [NAME] (the applicant) filed a claim for unfair dismissal under section 84 of the Industrial Relations Act, 1996 (the Act) against his former employer the [COMPANY]. 2 The applicant had previously worked for the respondent both as an employee and as a contractor prior to him commencing on 1 July 2004 as its General Manager. The applicant was terminated on 3 March 2006. 3 Conciliation was attempted on 6 April 2006 but was unsuccessful and a timetable for the filing and serving of evidentiary material was provided to the parties. The hearing was listed for two days but only one was required. At the end of the hearing on 17 July 2006 the Commission reserved its decision. 4 The respondent is a [COMPANY] that commenced in 1991 and has about 3,500 members, that offers literary resources and professional information to established and aspiring writers of all kinds. It provides a venue for book launches, readings, literary evenings and lectures as well as a meeting place for writers groups and literary organisations. 5 When the applicant was employed it had an Executive Director ([NAME]) who reported to a Board, the applicant, a full time employee and a part-time bookkeeper. 6 In the hearing the applicant represented himself and the Mr. T. [NAME] of counsel represented the respondent. Applicant's Case.

7 It was the applicant's submission that he proceeded on annual leave on 21 February 2006 and was due to return on 4 March 2006. On 1 March 2006 he had reason to come into the office for about ten minutes. Whilst there he spoke with a fellow employee [NAME] but did not speak to [NAME] as she was busy. When he returned home he sent an email (Ex.1 anex.7) to [NAME]. As a consequence of the contents of that email [NAME] spoke with the Board the following day and directed the applicant to come to see her on 3 March 2006 when she handed the applicant a letter of termination. 8 Only the applicant gave evidence on his behalf. His written affidavits became exhibits A and B. It was his view that his dismissal was unfair because he was dismissed whilst on annual leave, had not received a warning be it in writing or verbal, mediation was denied and he received one weeks pay on termination. 9 The applicant sought reinstatement to his previous position or if that was found to be inappropriate then six months pay. 10 The applicant denied that he had ever shouted at [NAME]. He stated in correspondence to [NAME] that as a consequence of a meeting that had taken place with her in May 2005, it had thrown him into a deep state of distress. Ten weeks previously he had slipped into a deep depression as diagnosed by his doctor. He criticised [NAME]'s management style and her lack of respect for him as a person. 11 [NAME] stated that at no time was she made aware of the applicant's health issue until she read the May 2005 correspondence. 12 As a result of this correspondence the applicant and [NAME] met to discuss issues raised and particular changes were made. 13 The applicant stated that he had no opportunity to defend himself either before the Board or [NAME], prior to being terminated therefore the respondent's actions lacked proper procedure. He stated that he had never been warned prior to the termination be it verbal or written.

Respondent's Case.

14 [NAME] gave evidence for the respondent. 15 She stated that she had re-employed the applicant in mid 2004 because in his new role he would not be involved in detail work on the accounts. Whilst the applicant was on holidays in November 2004 she emailed the applicant. In that email amongst other matters she advised the applicant to: "…please don't ever shout at me again. I could not take a repeat of it. It was the most intensely unpleasant experience I have had for a long time and I don't think I deserved it. My memory is not as good as it good [sic] be, and you yourself often forget to tell me crucial things, as you know, but I do not yell at you." It was her evidence that the applicant had screamed at her in front of the other staff. 16 She stated that she had cause to reprimand the applicant in February/March 2005 as a consequence of a tutor writing to her complaining of certain matters. 17 On 24 May 2005 [NAME] held a meeting with the applicant and directed him to carry out particular activities. This resulted in the applicant sending an email to [NAME] which in [NAME]'s view, was totally out of proportion to what occurred at the meeting. It indicated his extreme dissatisfaction with his position and his intense criticism of [NAME]. 18 [NAME] emailed a response to the applicant on 25 May 2005 (Ex.B annex.5). She stated she was disappointed to receive such a letter and noted the anger and resentment and that she has witnessed his outbursts of anger toward a group of hirers and fellow employee [NAME]. In the correspondence she in part stated : "I do not believe I deserve your anger, and if you cannot find a way of dealing with it, we will have to part company. I have tried my best to accommodate you, and it is a surprise to me that some of the things in your letter are an issue for you. It is the first time I have heard of many of them….. The [NAME] has given me total responsibility for staffing matters and my feeling is that no outside mediation will help if we cannot discuss these things with one another.

[NAME] made some changes to accommodate the applicant. 19 On 14 February 2006, [NAME] stated that she held a meeting with the applicant and raised a number of issues with him. She outlined quite clearly what the issues were and how he had interfered in other peoples work to the detriment of the respondent. 20 In response to the applicant's email received by [NAME] on 1 March 2006,it was her view that it convinced her that there was no longer any possibility of maintaining a reasonable working relationship with him. She was disturbed and dismayed at his hostile and mocking tones in the email and his criticism of her doing some of his jobs whilst he was on leave. His claim that she was going to terminate [NAME] was untrue. [NAME] provided a statement (Ex 1 Annex.8) to the Commission that clearly expressed that [NAME] had verbally advised [NAME] that she was resigning to pursue a career in publishing. 21 The following day [NAME] said that she met with the [NAME] who after discussion voted unanimously to dismiss the applicant. 22 On termination [NAME] stated that she contacted the Department of Industrial Relations and paid out the applicant in accordance with their advice.

Considerations and Decision.

23 A good portion of the applicant's written evidence (Ex. A) was centred on rebutting a claim by the respondent that the applicant had whilst employed with the respondent overpaid himself with respect to fringe benefits. [NAME] in response to a question from the Commission denied that this alleged overpayment was a reason for termination. As a consequence I did not take this issue into consideration in my determination. 24 The applicant had received an email from [NAME] dated 1 November 2004 which brought to the applicant's attention that she did not wish to be shouted again. " I could not take a repeat of it. It was the most intensely unpleasant experience I have had for a long time and I don't think I deserved it." It is my finding that on the balance of probability that the applicant did shout at [NAME] and this correspondence from [NAME] to the applicant should have been recognised by the applicant as a warning concerning his behaviour. 25 It is clear from the evidence that the dismissal of the applicant was triggered by the email sent by him to [NAME] on 1 March 2006. The applicant sent the email three days prior to returning to work from annual leave. 26 In cross-examination the applicant stated that he had listed seven "surprises" in the email.

Q. A surprise to you ? Why did you think it was necessary to tell her that it was a surprise to you?

A. [NAME] and I have a very friendly way of dealing with each other and it's a sarcastic way-it's more of a-it's malicious it's just the way how I speak and the way I communicate.

Q. Are you indicating you always communicate like this ?

A. I'm not indicating that I always communicate like this but in certain circumstances where I think a bit of sour humour is appropriate I do. 27 The applicant was cross- examined on each "surprise" in the email and accepted that the comments expressed were: complaints, criticisms of [NAME], actions of his that went against her wishes, asking a question he admitted he already knew the answer to and it included a grain of sarcasm. 28 He also admitted that his concluding comment of : "[NAME], is this all for real ?"

was a reference to the whole seven surprises which he disagreed with and that he held [NAME] responsible. 29 Included in the email "Surprise #4" was a statement that [NAME] had sacked [NAME] ([NAME]). He stated that [NAME] made a decision that he did not accept. He said that it was pretty appalling. Included in [NAME]'s filed statement was a statement from [NAME] that clearly stated that she had not been terminated but had resigned of her own accord. The applicant did not seek to cross- examine [NAME] on her statement.

Needless to say [NAME] took exception to this accusation by the applicant. 30 The applicant made comment in the email that he would be at work on Saturday; "to set up the first showcase of our Data Projector. I know, you object vigorously, but I will be in on Sunday to make sure everything is going to plan. No cost to the [COMPANY], of course. Just pure dedication."

From the transcript it is obvious that whilst [NAME] had told the applicant why she did not wish him to do what he wished to do and the applicant acknowledged that he was aware of her views, he had determined that he would attend, contrary to her views, for the good of the [COMPANY]. He also stated that he was prepared to apply this attitude to other occasions.

In other words he would do what he thought was best for the respondent notwithstanding the contrary views of his superior.

The applicant wanted to come in on that Sunday to assist a hirer of the respondent's premises in carrying out a connection to the respondent's internet service. It was [NAME]'s evidence that the respondent did not offer such a service and did not wish to offer such a service. 31 The applicant stated that [NAME] tried to terminate him in 2002 but he resigned. He then worked for the respondent as a contractor after his resignation and came back to the [COMPANY] on numerous occasions and then came back in February 2004, again as a contractor. 32 The applicant was asked the following questions by the Commission:

Q. And your primary position in this case is to be reinstated back to your previous position ?

A. Correct. and Q. So you will follow exactly what she says; reasonable orders ?

A. Well, I will have to.

Q. See what I'm trying to understand is if that's your attitude now why wasn't it your attitude then ?

A. Because I felt safe.

Q. Because you had been sacked before………

A. Yes.

Q…..and crying wolf, "She won't sack me again." Is that the attitude ?

A. That's correct. 33 From the documentation that made up the evidence in this case it is clear that the applicant had experienced difficulties with [NAME] and vice versa. In evidence [NAME] acknowledged particular attributes of the applicant and their benefits to the respondent. Her email to the applicant of 25 May 2005 placed the applicant on notice that if he did not find a way to deal with his anger then, "we will have to part company." The respondent is a very small entity with only four employees working as I understand in one room. The requirement for all employees to work in harmony would have to be a fundamental necessity for the business to prosper. 34 The email sent by the applicant to [NAME] on 1 March 2006 was in my finding completely unnecessary. It was sent on a malicious, sarcastic and sour humour basis (to use the words of the applicant). He was to return to work in a few days time, and could if he had wished raised any of the issues, face to face with [NAME] in a normal business like manner. It is my finding that this correspondence was sent to belittle [NAME]. It was a destructive document with a negative intent. As stated, he would do what he thought was correct notwithstanding the contrary attitude of the person he reported to. For an employee to act contrary to the wishes of his boss exposes that employee to be disciplined. 35 For the applicant to state that [NAME] had terminated a particular named employee and then in the arbitration fail to seek to cross- examine the named employee who had filed a statement stating the contrary, did nothing for the applicant's credibility. 36 It would seem the applicant believed that he was immune from termination because of his previous history with the respondent. Whilst he held such a view I do not believe he would change his attitude towards [NAME]. He had been placed on notice in May 2005 but it would seem had not taken heed. He had instigated his own termination by the sending of this unnecessary email. Holding the position that he did there were other more appropriate business like ways of dealing with any problems that he believed were requiring of action. 37 The failure of the respondent not to allow the applicant an opportunity to discuss his views prior to being terminated, I do not believe was fatal to the respondent's case. From my observations of the applicant I did not conclude that he was an employee who would readily change his way of operating at the direction of his superior. 38 In summary it is my finding that the termination of the applicant by the respondent was neither harsh, unjust or unreasonable. 39 I therefore dismiss this application. This matter is concluded.

[NAME] COMMISSIONER

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