TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal – applicant employed as IT Project Manager in CatholicCare Social Services – summarily dismissed after allegations of violence in the workplace on 9 May 2016 where police were called – applicant allegedly shoved Ms Rashada, the Manager of People & Culture – prior to the incident on 9 May there were issues regarding connection to the NBN and provision of anti-virus software which included the applicant, as well as issues with the applicant’s ongoing neck injury – applicant was required to attend a job performance review – applicant arrived at arranged time and was directed to wait by Ms Rashada – after over four hours of waiting the review was rescheduled – at rescheduled review meeting applicant also made to wait for four hours before meeting being rescheduled again – the outcome of the twice rescheduled meeting was that the applicant was to receive his first warning letter, was relocated from the Blacktown office to the Parramatta office and was put on a performance improvement plan (PIP) – applicant received second warning letter after his delay in attending the Parramatta office, after assisting another employee when he attended at the Blacktown office to collect his belongings – letter claimed applicant’s performance of work at Blacktown was in breach of an instruction given to him – Commission found the warning letters and PIP to have been issued without any proper justification – found the second warning letter to have been a completely excessive response to a delay – on 9 May 2016 there was a conversation between the applicant, Ms Rashada and the IT Manager concerning the PIP – the applicant was seated at the work station he had been assigned, a desk in an open corridor, the two managers were standing – at one point the IT Manager left the conversation to return to his office for a brief period – the applicant and Ms Rashada were left alone for a short period of time – applicant submitted that Ms Rashada made threatening comments to him and then, after looking around to see if anyone else was visible, screamed without reason and twice said ‘Don’t touch me’ – further submitted Ms Rashada told him he was sacked then went into IT Manager’s office – applicant called police in order to try and establish his innocence – shortly after phone call he was escorted from the building by a security guard – Ms Rashada submitted that once the IT Manager left the conversation the applicant became louder and quite mad and frustrated – further submitted the applicant then stood up in front of her and then used his right arm and hand to shove her on her right shoulder – described it as ‘a decent shove’ – Ms Rashada then said she and the IT Manager spoke to the Director of Administrative Services in his office on the other side of the building, where the decision was made to dismiss the applicant – the Director of Administrative Services gave evidence that he was not in the building at the time, but had noticed a number of missed calls on his phone, including from Ms Rashada – when he walked back to the office he saw the applicant and the police talking out the front – at hearing the Director denied any involvement in the decision to dismiss the applicant – Commission held that the case depended entirely on the acceptance of Ms Rashada’s evidence about the incident – could not accept Ms Rashada as a witness of credit – found much of what she said was directly contradicted – did not consider her to have been a credible witness and had no confidence she has given a truthful and accurate account of the incident between herself and the applicant – Commission not satisfied, on the balance of probabilities, that the applicant pushed Ms Rashada as she alleged – not satisfied there was any valid reason for applicant’s dismissal – found the dismissal was harsh, unjust and unreasonable – applicant was denied procedural fairness and was dismissed by a person lacking both impartiality and authority – reinstatement not appropriate – compensation appropriate – compensation assessed in line with Bowden v Ottrey Homes – calculated compensation as $81,563.00 – amount of compensation calculated was above the compensation cap, which in this case was $40,977.30 – compensation amount therefore reduced to $40,977.30, less applicable taxation. Ramsey v The Trustee for the Roman Catholic Church for the Diocese of Parramatta
