[2012] FWAFB 7423 Download Word Document

FAIR WORK AUSTRALIA DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Australian Postal Corporation T/A Australia Post

v

Nick Rushiti

(C2012/3531)

SENIOR DEPUTY PRESIDENT ACTON

DEPUTY PRESIDENT HAMILTON

COMMISSIONER GREGORY MELBOURNE, 21 SEPTEMBER 2012

Appeal against decisions [Confidential decision of 3 April 2012, [2012] FWA 2850 and [2012] FWA 5012 ] and order [ PR525318 ] of Commissioner Ryan in matter number U2011/8066. Application for unfair dismissal remedy - valid reason - dissemination of pornographic images on Australia Post email system - procedural fairness - decisions and order quashed - matter determined by Full Bench - application dismissed.

Introduction

[1] This is an appeal made by the Australian Postal Corporation T/A Australia Post (Australia Post) to Fair Work Australia (FWA) under s.604 of the Fair Work Act 2009 (the FW Act). The appeal is against decisions 1 and an order2 of Commissioner Ryan concerning the termination of Mr Nick Rushiti’s employment by Australia Post on 16 May 2011.

First instance decisions and order

[2] On 19 May 2011 Mr Rushiti applied under s.394 of the Act for an unfair dismissal remedy with respect to the termination of his employment by Australia Post on 16 May 2011. Conciliation was unsuccessful, and the matter was set down for arbitration.

[3] On 3 April 2012 the Commissioner handed down a decision that the termination of Mr Rushiti’s employment was unfair. He also decided that a remedy of reinstatement and other matters was appropriate. The decision was marked ‘Confidential’. It was not given a print number. No orders were actually issued. When it received the decision Australia Post objected that it had not been heard on the issue of remedy. It submitted that this was a breach of natural justice. 3 It appears from the transcript that the Commissioner decided to revoke this decision,4 although no formal order to that effect was issued.

[4] On 4 April 2012 the Commissioner handed down a second decision. 5 The second decision did not refer to his first decision of 3 April 2012. The Commissioner decided that the termination of Mr Rushiti’s employment was harsh, in terms which were for all material purposes the same as the earlier decision with one exception. He dealt with the issue of remedy by providing for a further hearing on that issue.

[5] On 19 June 2012, following a further hearing, the Commissioner issued a third decision. 6 In the third decision he decided to make an order of reinstatement, and other orders relating to remedy. An order was issued on the same day.7

Decision of 4 April 2012

[6] In his decision of 4 April 2012, the Commissioner firstly described the circumstances which led to the termination of Mr Rushiti’s employment:

“[1] On 16 May 2011 Mr Rushiti was dismissed from his employment with Australia Post for serious misconduct for sending 6 emails from his Australia Post email account to a person outside of Australia Post, where the content of the emails breached Australia Post’s policy on email use. The emails included pornographic content and were sent by Mr Rushiti in late 2010.” 8

[7] The Commissioner made findings in relation to the matters set out in s.387 in part by referring to concessions made by Mr Rushiti. The Commissioner said:

“[5] Mr Rushiti conceded that:

There was a valid reason for his dismissal (s.387(1)(a)); and







Australia Post had notified him of the reason for dismissal (s.387(b)); and







Australia Post had given him an opportunity to respond to any reason related to his conduct (s.387(c)); and







Australia Post had allowed him to have a support person present to assist at any discussions relating to the dismissal (s.387(d)); and







The dismissal did not relate to any performance issue (s.387(e)); and







Australia Post was a large employer with dedicated HR resources (s.387(f) and (g)).





[6] The issue in contest was [what] weight should be attached to other relevant matters under s.387(h).” 9

[8] He then considered and made findings with respect to Australia Post policies, 10 its email filtering system,11 investigations of inappropriate emails,12 the Australia Post disciplinary process13 and its treatment of the employees who had engaged in breaches of the Australia Post policy concerning emails,14 the Australia Post delegate decision,15 and the proper characterisation of Mr Rushiti’s misconduct. 16

[9] Importantly, in considering the proper characterisation of Mr Rushiti’s misconduct, the Commissioner said:

“[63] The misconduct of Mr Rushiti in sending inappropriate emails has been categorised by Australia Post as constituting serious misconduct for several reasons all of which were detailed by Mr X the Inquiry Officer in his Disciplinary Inquiry Report. In summary they are: The sending of the 6 emails constitutes breaches of ‘Our ethics’ and constitute serious and wilful misconduct. The reference to ‘Our ethics’ included each of the following policies which are referred to in ‘Our ethics’: IT Systems Security policy and Harassment Discrimination and Bullying policy. Mr Phillopou determined that the conduct was serious misconduct on the basis that the emails sent to an external email address ‘were accordingly branded as being the property of Australia Post’ because of the automatic inclusion of a text on the bottom of every email being sent externally from an Australia Post email account. [64] As Mr X’s Report stated: ‘The above text is automatically generated on emails sent to an address outside the Australia Post IT system. If an email is on-forwarded by an external recipient, the above identifying text accompanies the email. This results in the email, and in this case it’s objectionable content, continuingly being identified as having its origins or a relationship to Australia Post. It is the inquiry officer’s view that such conduct is serious as it has the potential to cause damage to Australia Post’s public reputation, trusted brand name and corporate image’... [69] Whilst Mr X formed the view that ‘such conduct is serious as it has the potential to cause damage to Australia Post’s public reputation, trusted brand name and corporate image’, nothing was put which considered whether that potential would or could be realised. The fact that Mr Rushiti sent the 6 external emails to his sister in law at her request would suggest that the potential relied upon by Mr X would not eventuate. [70] The conclusion which I draw from the above analysis is that the misconduct of Mr Rushiti is sufficient to constitute a valid reason for dismissal, as conceded by Mr Rushiti, but when viewed objectively and having regard to the circumstances of the case does not ‘include conduct, in relation to important matters, that constitutes a repudiation of or is incompatible with or repugnant to the essential obligations of an employee.’ ” 17

[10] The Commissioner concluded that:

“Overall conduct of Rushiti [71] It is important in my considered view to put Mr Rushiti’s conduct into proper perspective. Mr Rushiti was given access to a computer as from 21 September 2009 as part of his return to work program so that he could provide some limited administrative support at the Melbourne Consolidation Centre. [72] The training given to Mr Rushiti in relation to ‘Our Ethics’ was given on 7 August and 11 September 2009 before Mr Rushiti was given access to a computer. There is nothing in the evidence of Australia Post to suggest that the timing of the training was to prepare Mr Rushiti to work on a computer. Rather the evidence suggests that at a time when Mr Rushiti was not employed on computer work he was given the ‘Our ethics’ training simply as part of a general program of training Australia Post staff on ‘Our ethics”. Mr Rushiti did not appear to take the training seriously as his evidence was vague and uncertain about any such training. Mr Rushiti only conceded that he had received the training from Australia Post when presented with evidence of his attendance at various training events. Mr Rushiti had a blasé attitude about the agreement he was entering into each time he turned on his computer. Mr Rushiti never read the contents of the pop up box and merely pressed ‘ACCEPT’ on the pop up box in order to access the Australia Post IT system. [73] I have no hesitation in finding that Mr Rushiti displayed a naive disregard for the requirements of the Australia Post policies on email use. But this naivety falls far short of any calculated or wilful disregard for Australia Post’s policies. Mr Rushiti was influenced by the conduct of other Australia Post employees who being in roles which required constant long term use of computers were much more culpable in relation to breach of Australia Post’s email use policy. [74] I accept the evidence of Mr Rushiti that he was genuinely remorseful for his conduct. Does the Punishment fit the crime? [75] In Gilbert and Sullivan’s ‘Mikado’ the Emperor of Japan sings of his own virtues when he says: My object all sublime I shall achieve in time— To let the punishment fit the crime, The punishment fit the crime; [76] In the context of the unfair dismissal jurisdiction of Fair Work Australia the concept of the punishment fitting the crime is approached through considering whether the dismissal of the employee is a proportionate response to the conduct of the employee. As a Full Bench of the Australian Industrial Relations Commission said: ‘If summary dismissal was disproportionate to the misconduct that would support a conclusion that the termination was harsh, despite the existence of a “valid reason” for termination.’ [footnote omitted] [77] Having taken into account each of the other matters that I consider relevant under s.387(h) together with each of the matters in s.387(a) to (g) inclusive I find that the dismissal of Mr Rushiti was harsh. The summary dismissal was disproportionate in all of the circumstances of this case to the misconduct. [78] The punishment did not fit the crime.” 18

Grounds of the appeal

[11] The Australia Post notice of appeal was lodged on 24 April 2012 against the Commissioner’s decision of 4 April 2012. On 26 June 2012 and 27 August 2012 Australia Post sought to amend the appeal grounds. Mr Rushiti submitted that an amendment to add the decision of 3 April 2012 was “unnecessary” given that it had been revoked. 19 However, no order revoking the 3 April 2012 decision was made. In the circumstances, and to ensure that the result from this appeal is clear, we have decided to allow the amendment to include the decision of 3 April 2012. The other amendments were not opposed and we grant leave to make the amendments.

[12] The amended appeal grounds allege that the Commissioner made a number of errors of fact and principle in his three decisions and order. Australia Post submitted that there is a public interest in granting permission to appeal. Permission to appeal was opposed by Mr Rushiti.

Appealable error

[13] An appeal under s.604 is an appeal by way of rehearing and the tribunal’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 20

[14] A decision as to whether a dismissal was harsh, unjust or unreasonable involves a degree of subjectivity or value judgment and in a broad sense can be characterised as a discretionary decision. 21 In Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and others,22 the High Court stated the following in respect of an appeal from a discretionary decision:

“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms: ‘If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.’ ” 23

[15] Further, in respect of an appeal in relation to an application for an unfair dismissal remedy, s.400 of the FW Act provides that:

FWA must not grant permission to appeal from a decision made by FWA under the Unfair Dismissal Part of the FW Act unless FWA considers it is in the public interest to do so; and







an appeal from a decision made by FWA in relation to a matter arising under the Unfair Dismissal Part of the FW Act can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.





[16] It is convenient to deal with a number of the appeal grounds advanced by Australia Post together. In particular, the appeal grounds that the Commissioner erred in finding that the termination was harsh where there was a substantive and procedural foundation for the termination of Mr Rushiti’s employment and in circumstances where the finding was unsupported by the totality of the evidence and inadequately explained.

Consideration of the appeal

[17] The matter of the dismissal of an employee for inappropriate use of email at work was considered by a Full Bench of the Australian Industrial Relations Commission in Queensland Rail v Wake. 24 In Queensland Rail the Full Bench said:

“[2] At all relevant times the appellant had a policy directed at ensuring that employees did not use its electronic communications system to store or transmit images containing material that is sexually-related, pornographic or violent. The appellant terminated the employee’s employment for breaches of its policy. [3] ... It cannot be doubted that electronic traffic in sexually-related, pornographic and violent images is of legitimate and growing concern to employers. Such images, apart from being offensive to many, can undermine acceptable standards of behaviour in the workplace and create an environment conducive to harassment and discrimination. It is possible, even likely, that an employer which does not take active steps to eliminate traffic of this kind on its email and other electronic communication systems may incur legal liability, under anti-discrimination legislation for example. It is reasonable and, arguably, necessary that employers take what steps they can to eradicate traffic in such images. Although this case raises issues about the control of traffic in sexually-related, pornographic and violent images, similar issues may arise in relation to images of other kinds, such as images related to ethnicity or gender identity. For these reasons we have formed the view that the matter is of such importance that, in the public interest, leave should be granted to appeal. We grant leave... [11] On the face of it, a dismissal in the circumstances outlined so far would not be harsh, unjust or unreasonable. The employer’s right to exercise control over its own information technology systems is undoubted. If that right is exercised unfairly or unlawfully, however, the employee concerned may have a remedy under the Act... [16] The second ground of appeal with which we deal concerns the Commissioner’s approach of rating the six 2005/6 images in order to decide whether the termination was harsh. The following passage encapsulates the Commissioner’s reasoning: ‘[111] To be weighed against these transgressions of the policy is an employee of 27 years service with no disciplinary history. QR submits and I accept that the employee’s length of service is not to become some immunity from discipline for breaching the policy. Nor should the employee’s employment history be ignored. It is but one of the matters to be taken into account. Lengthy service may not be sufficient to outweigh findings against an employee that emailed or stored large amounts of high level, sexually explicit, “hard core” pornography. That is certainly not the case here. The circumstances of this case place it at the other end of the scale.’ [17] As we indicated earlier, control of email traffic in inappropriate material is a matter of legitimate concern to employers. The Commissioner’s approach might well be interpreted to mean that employees with long service ought be immune from termination of employment unless guilty of breaches of the policy involving large amounts of ‘hard core’ pornography. We think that an employer is entitled to take a firmer line than that. In this case the appellant went to great lengths to alert employees to the policy and to warn them that breaches would lead to dismissal. Despite this the employee breached the policy on a number of occasions in a substantial way... [19] In our view the Commissioner’s decision was affected by relevant errors and his conclusion that the termination was harsh is for that reason unsafe. The appellant submitted that if we concluded that the Commissioner’s decision was affected by error this Bench is in a position to decide the application and should do so. The employee’s representative did not advance a different view... [20] The relevant facts have been set out already. In determining whether a termination of employment is harsh, unjust or unreasonable the Commission is to have regard to a number of matters specified in s.652(3) of the Act. The Commissioner found that there was a valid reason for the termination of the employee’s employment: s.652(3)(a). We agree. It is accepted that he was notified of the reason and asked to respond, which he did. The response was in writing and comprehensive. The Commissioner was mildly critical of the appellant for not dealing with the employee’s response in a similarly comprehensive way but nevertheless expressed his satisfaction that the appellant had given the employee a relevant opportunity to respond: ss.652(3)(b) and (c). The termination was not based on unsatisfactory performance and accordingly the question of whether a warning was given does not arise: s.652(3)(d). The size of the appellant’s undertaking would not be likely to impact adversely on the procedures followed in effecting the termination: s.652(3)(e) and the appellant has dedicated human resource management specialists: s.652(3)(f). [21] For a number of years the appellant has had a firm and well-publicised policy prohibiting the use of its electronic communication system to store or transmit material which is sexually-related, pornographic or violent. Obviously each case is to be decided on its merits, but in general it is in the public interest that, subject always to considerations of fairness, the Commission’s decisions should support employers who are striving to stop inappropriate email traffic. It has not been suggested, subject to a qualification to which we shall return, that the appellant’s policy is unreasonable. Furthermore the policy is supported by the relevant unions and has been reinforced by appropriate training and education. We have set out earlier in a summary way the steps the appellant took to warn employees that breach of the policy would result in termination of employment. In the case of this particular employee these warnings went unheeded. Although an employee of 27 years without any history of being disciplined, he breached the policy in a serious way in 2003 and on a number of occasions in late 2005 and early 2006. Although we have not set out the contents of the 2003 files, it seems to have been common ground that they were caught by the policy. The employee conceded as much in his evidence before the Commissioner. Having seen the material it is apparent to us that it contains material that the policy was directed at. While we have dealt with two of them ourselves above, details of the 2005/6 images are set out in the Commissioner’s decision. It is apparent that the breaches were not minor or few in number. Looked at objectively there is evidence of flagrant and repeated breaches. [22] While the employee’s representative put all that could reasonably be put on his behalf, it has not been established that the termination of his employment was harsh, unjust or unreasonable. The use of company electronic communications systems for storage and transmission of images containing sexually-related, pornographic and violent material is a serious and socially important issue. The appellant, rightly in our view, made sustained efforts over a number of years to make employees aware of its policy and the consequences of breaching the policy. Despite those efforts and repeated warnings the employee breached the policy in a substantial way and on a number of occasions. While appreciating that loss of employment is a bitter blow, we see no proper basis on which the Commission might properly intervene to reverse the employer’s decision in this case. [23] There is one additional issue requiring comment. The appellant’s policy states that any deliberate breach involving pornographic or sexually-related material will result in termination of employment. Although in this case we have decided not to interfere with the application of that policy, it ought not be assumed that the Commission would uphold the employer’s right to apply the sanction of termination in all cases of deliberate breach regardless of the circumstances. As s.652 of the Act makes clear, in determining whether a termination of employment is harsh, unjust or unreasonable the Commission is required to take a range of matters into account. In addition the statutory provisions are intended to ensure a ‘fair go all round’: s.635(2). In the proper exercise of its functions the Commission must exercise its own judgment. Whatever sanction the employer’s policy prescribes, the Commission must decide whether the termination is harsh, unjust or unreasonable. [24] For these reasons we uphold the appeal, quash the Commissioner’s decision and order and dismiss the application under s.643.” 25 [Endnotes omitted]

[18] The Commissioner was referred to Queensland Rail, however he does not mention it in his decision. Nonetheless, it is apparent that in considering whether Mr Rushiti’s dismissal was harsh, unjust or unreasonable, the Commissioner gave the valid reason for Mr Rushiti’s dismissal less weight than that which was given to it in Queensland Rail.

[19] The basis for giving the valid reason less weight is set out in the Commissioner’s consideration of the proper characterisation of Mr Rushiti’s misconduct and encapsulated in his statement that:

“[69] Whilst Mr X formed the view that ‘such conduct is serious as it has the potential to cause damage to Australia Post’s public reputation, trusted brand name and corporate image’, nothing was put which considered whether that potential would or could be realised. The fact that Mr Rushiti sent the 6 external emails to his sister in law at her request would suggest that the potential relied upon by Mr X would not eventuate. [70] The conclusion which I draw from the above analysis is that the misconduct of Mr Rushiti is sufficient to constitute a valid reason for dismissal, as conceded by Mr Rushiti, but when viewed objectively and having regard to the circumstances of the case does not ‘include conduct, in relation to important matters, that constitutes a repudiation of or is incompatible with or repugnant to the essential obligations of an employee.” 26

[20] However, it was not open to the Commissioner to find that nothing was put which considered whether the potential for damage to Australia Post’s public reputation, trusted brand name and corporate image from Mr Rushiti’s conduct would or could be realised. Nor, in our view, was it open to the Commissioner to find that the fact that Mr Rushiti sent the six external emails to his sister-in-law at her request would suggest that the potential relied upon by Mr X for damage to Australia Post would not eventuate.

[21] In fact, there was evidence before the Commissioner that emails sent from an Australia Post email account to an external email address have the Australia Post brand because text to that effect is automatically generated on emails sent from an Australia Post email account to an email address outside the Australia Post IT system and if the emails are on-forwarded by the external recipient the identifying text accompanies the email. We accept that an inappropriate email which is identified as being associated with Australia Post has the potential to cause damage to Australia Post. Further, notwithstanding Australia Post having an email filtering system designed to catch the transmission of inappropriate emails from an Australia Post email account to an external email address, four of the six emails were received by Mr Rushiti’s sister-in-law. Once the emails were sent to an external recipient by Mr Rushiti and received by the external recipient, their on-forwarding with the Australia Post identifying text was out of the control of both him and Australia Post. We add that we do not think that the fact that an employer has an email filtering system designed to catch the transmission of inappropriate emails is a proper basis for excusing or diminishing the significance of an employee sending inappropriate emails from their work email.

[22] It is also our view that it is appropriate for an employer to establish policies against the dissemination of pornographic and sexually-related material in and from the workplace, and to take proportionate disciplinary action for breaches of such policies. If an employer is not able to do this then its ability to prevent the dissemination of offensive images will be substantially lessened, and the potential exposure of employees and others to offensive images will be correspondingly increased. These are not trivial issues, but are of some significance. These considerations were not given sufficient weight in the Commissioner’s decision, nor were other factors such as the procedural fairness which was afforded to the applicant. The case was one in which the valid reason for dismissal was strong and the procedural fairness afforded to Mr Rushiti was substantial.

[23] The Commissioner’s satisfaction that Mr Rushiti’s dismissal was harsh was, therefore, affected by error of the type set out in House v The King. 27 The weight the Commissioner attached to the valid reason for Mr Rushiti’s dismissal in coming to such satisfaction was based on findings which were not open to the Commissioner. Those erroneous findings of the Commissioner were significant errors of fact given the importance the findings played in the Commissioner’s conclusion that the dismissal of Mr Rushiti was harsh.

[24] We do not need to deal with any of the other grounds of appeal raised by Australia Post. We grant permission to appeal against the Commissioner’s decisions and order. We consider it is in the public interest to grant such permission as the appeal has raised the proper application of the authority in Queensland Rail and the decisions of the Commissioner involved a significant error of fact. Having regard to the nature of that error and its effect we also uphold the appeal against the Commissioner’s decisions and order and quash them. We set aside the stay order issued in respect of the decisions and order. We will deal with Mr Rushiti’s unfair dismissal remedy application.

Unfair dismissal remedy order application

[25] In order for FWA to grant an unfair dismissal remedy order, an application for such an order must be made within 14 days after the dismissal took effect or within such further period as FWA allows. 28 Mr Rushiti was dismissed by Australia Post on 16 May 2011 and his unfair dismissal remedy order application was made on 19 May 2011. As a result we find Mr Rushiti’s application was made within the requisite period.

[26] For FWA to grant an unfair dismissal remedy order, the person dismissed must have been protected from unfair dismissal at the time of being dismissed and have been unfairly dismissed. 29 It was not contested that Mr Rushiti was protected from unfair dismissal at the time he was dismissed by Australia Post and we find that he was so protected.

[27] As to unfair dismissal, the FW Act provides that a person has been unfairly dismissed if FWA is satisfied that:

“(a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.” 30

[28] Before the Commissioner, Australia Post conceded that Mr Rushiti was dismissed by them, the Small Business Fair Dismissal Code did not apply and the dismissal of Mr Rushiti was not a case of genuine redundancy. We so find.

[29] The matter of whether Mr Rushiti’s dismissal was harsh, unjust or unreasonable was contested between the parties. Section 387 of the FW Act provides that:

“387. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that FWA considers relevant.”

[30] We will deal with each of these matters in turn.

(a) Valid reason (s.387(a))

[31] We find there was a valid reason for Mr Rushiti’s dismissal related to his conduct (including its effect on the safety and welfare of other employees). That conduct was his storage of emails containing numerous sexually-related and pornographic images in his Australia Post email account over a considerable period of time and his sending of those images from that account to people within and outside of Australia Post over the period 15 November 2010 to 3 December 2010 contrary to reasonable Australia Post policies.

(b) Notified of the valid reason (s.387(b))

[32] We also find that Mr Rushiti was notified of the valid reason in a letter from Australia Post to him on 16 May 2011.

(c) Opportunity to respond (s.387(c))

[33] Further, we find that Mr Rushiti was given an opportunity to respond to the valid reason through the Disciplinary Inquiry conducted in respect of him under the Australia Post Employee Counselling and Disciplinary Policy and Procedures.

(d) Unreasonable refusal to allow a support person (s.387(d))

[34] We find that Australia Post did not unreasonably refuse to allow Mr Rushiti to have a support person present to assist at any discussions relating to his dismissal. Indeed, Australia Post allowed him to have a support person present to assist at such discussions.

(e) Unsatisfactory performance (s.387(e))

[35] Mr Rushiti’s dismissal did not relate to unsatisfactory performance by him, so s.387(e) is not relevant to Mr Rushiti’s dismissal.

(f) Size of enterprise (s.387(f))

[36] Australia Post is a large employer. We find that its size would not have been likely to detrimentally impact on the procedures it followed in effecting Mr Rushiti’s dismissal.

(g) Human resource management (s.387(g))

[37] Similarly, Australia Post has dedicated human resource management specialists or expertise. As a result, we find this matter is not relevant to Mr Rushiti’s dismissal.

(h) Other relevant matters (s.387(h))

[38] Other matters that, in our view, are relevant to whether Mr Rushiti’s dismissal was harsh, unjust or unreasonable and favour a conclusion that his dismissal was harsh, unjust or unreasonable are:

his length of service of some 12 years;







his otherwise unblemished work record;







the personal and economic consequences for Mr Rushiti of the dismissal, as he suffers from a physical workplace injury and has a limited skill set both of which are likely to make his obtaining alternative employment difficult; and







his remorse.





[39] Other relevant matters which, however, go against a conclusion his dismissal was harsh, unjust or unreasonable is the training and information he received about Australia Post’s policies relating to the inappropriate use of work email and the pop up box which appeared on his computer screen whenever he turned on his computer. That pop up box warned that Australia Post may take disciplinary action against an employee for misusing its IT facilities, including email, by transmitting pornographic images or using it in respect of sexually explicit or sexist material.

[40] We are not persuaded that the summary nature of Mr Rushiti’s dismissal is a relevant matter to whether his dismissal was harsh, unjust or unreasonable given the nature of the valid reason for the dismissal.

[41] The Commissioner found that there was not a culture within Australia Post which tolerated and accepted the receiving and sending of inappropriate emails. On the evidence, we concur with the Commissioner’s finding in this regard. It is apparent other Australia Post employees, including some managers, with whom Mr Rushiti was associated knowingly engaged in the inappropriate use of the Australia Post computer and email system. However, we do not think that excuses or mitigates the conduct Mr Rushiti engaged in, particularly in light of the training, information and regular warnings given to him about inappropriate computer and email usage.

[42] Nor are we persuaded there has been unequal treatment of employees by Australia Post with respect to disciplinary action. The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. 31 In Sexton’s case, his Honour said:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable … [36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.” 32

[43] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.

[44] Similarly, in Daly v Bendigo Health Care Group, 33 Senior Deputy President Kaufman said:

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]

[45] We respectfully concur with their Honours.

[46] On the evidence, we are not satisfied there is sufficient comparability between the circumstances of the employees Mr Rushiti said were Australia Post employees who had engaged in storing and sending inappropriate emails but had not been dismissed and Mr Rushiti’s circumstances.

[47] The valid reason for Mr Rushiti’s dismissal, the notification of that valid reason to Mr Rushiti, the opportunity given to him to respond to it, the training and information Mr Rushiti received relating to the inappropriate use of work email and the regular computer pop up box advice he received about disciplinary action for using Australia Post’s IT facilities in respect of pornographic images, sexually explicit material or sexist material are all matters going against a conclusion that Mr Rushiti’s dismissal was harsh, unjust or unreasonable. Those matters, including the factors that constituted the valid reason for Mr Rushiti’s dismissal, outweigh the matters to which we have earlier referred that favour a conclusion his dismissal was harsh, unjust or unreasonable. We are, therefore, satisfied Mr Rushiti’s dismissal by Australia Post was not harsh, unjust or unreasonable.

Conclusion

[48] For the foregoing reasons, we dismiss Mr Rushiti’s unfair dismissal remedy application in matter U2011/8006.

[49] An order giving effect to our decision is attached at PR529391 .

SENIOR DEPUTY PRESIDENT

Appearances:

M McKenny of counsel and S Blackman for the Australian Postal Corporation T/A Australia Post.

D Victory of counsel and D Khatab for Nick Rushiti.

Hearing details:

Melbourne.

2012:

22 August.

Final written submissions:

Appellant, 27 August 2012 and 7 September 2012.

Respondent, 3 September 2012.

Endnotes:

1 Nick Rushiti v Australian Postal Corporation T/A Australia Post, Confidential decision of 3 April 2012, [2012] FWA 2850 and [2012] FWA 5012 .

2 Nick Rushiti v Australian Postal Corporation T/A Australia Post, PR525318 .

3 Transcript in U2011/8066, 5 April 2012 at PN4031.

4 Transcript in U2011/8066, 5 April 2012 at PN4223.

5 Nick Rushiti v Australian Postal Corporation T/A Australia Post, [2012] FWA 2850 .

6 Nick Rushiti v Australian Postal Corporation T/A Australia Post, [2012] FWA 5012 .

7 Nick Rushiti v Australian Postal Corporation T/A Australia Post, PR525318 .

8 Nick Rushiti v Australian Postal Corporation T/A Australia Post, [2012] FWA 2850 .

9 Ibid.

10 Ibid at paragraphs 11-15.

11 Ibid at paragraphs 16-20.

12 Ibid at paragraphs 21-26.

13 Ibid at paragraphs 27-30.

14 Ibid at paragraphs 31-54.

15 Ibid at paragraphs 55-62.

16 Ibid at paragraphs 63-70.

17 Ibid.

18 Ibid.

19 Submissions of Nick Rushiti dated 4 September 2012 at paragraph 13.

20 This is because on appeal Fair Work Australia has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and others, (2000) 203 CLR 194 at paragraph [17] per Gleeson CJ, Gaudron and Hayne JJ.

21 Ibid at paragraphs [18]-[20].

22 (2000) 203 CLR 194.

23 Ibid at paragraph [21], citations omitted.

24 (2006) 156 IR 393.

25 Ibid.

26 Nick Rushiti v Australian Postal Corporation T/A Australia Post, [2012] FWA 2850 .

27 (1936) 55 CLR 499.

28 Fair Work Act 2009 (Cth), s.394(2).

29 Fair Work Act 2009 (Cth), s.390(1).

30 Fair Work Act 2009 (Cth), s.385.

31 PR931440 .

32 Ibid.

33 PR973305 .

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